Copyright (c) 2008 All rights reserved. http://works.bepress.com/samuel_baumgartner Recent documents in Samuel P. Baumgartner en-us Sat, 01 Mar 2008 02:15:48 PST 3600 http://works.bepress.com/samuel_baumgartner/10 http://works.bepress.com/samuel_baumgartner/10 Thu, 28 Feb 2008 11:39:39 PST Despite common roots, litigation practice in the various European countries can be remarkably different. Attempts to create a common European code of civil procedure or at least to harmonize procedural law in Europe have been greeted with little enthusiasm and have stalled for a number of reasons. Three procedural scholars from Belgium and the Netherlands have thus decided to edit a series of books that describe and analyze in some detail individual parts of the litigation law in the various European countries in order to provide the necessary comparative groundwork from which to build a more harmonized European law of procedure.This is the third book in this series, focusing on the recognition and enforcement of judgments. The book contains 19 extensive national reports and a general report by the editors of the book. The focus is on the recognition and enforcement outside of the framework of the Brussels Convention, now the Brussels Regulation, and the parallel Lugano Convention. Thus, the book deals with the recognition and enforcement of judgments that emanate from non-member states of the Conventions and with the recognition of judgments in subject matters that are not covered by the Conventions, such as family law and succession. Thus, both the book and our chapter should be of interest not only to Europeans but to all non-Europeans interested in a more detailed account of recognition law in Europe. We cover in some depth the sources of recognition law, recognizable judgments, recognition requirements, and, briefly, recognition procedure. We identify similarities, trends, regional specialties and differences in recognition laws, but we also realize that, due to a number of discretionary rules, there is perhaps a bigger gap between the written law and the law as applied by the courts in recognition law than in other parts of the law of procedure, at least in civil law countries. Thus, while we made some interesting discoveries with regard to actual practice, we also conclude that further comparative research is needed in this area. Samuel P. Baumgartner International Litigation http://works.bepress.com/samuel_baumgartner/9 http://works.bepress.com/samuel_baumgartner/9 Thu, 28 Feb 2008 11:23:33 PST Samuel P. Baumgartner International Litigation Class Action http://works.bepress.com/samuel_baumgartner/8 http://works.bepress.com/samuel_baumgartner/8 Thu, 28 Feb 2008 11:04:14 PST In June 1992, the U.S. delegation to the Meeting of the Special Commission on General Affairs and Policy of the Hague Conference on Private International Law proposed that the Conference begin work on a convention dealing with the recognition and enforcement of foreign judgments. This suggestion was nothing new. The Hague Conference has attempted to tackle judgments recognition for over a century, so far with little success when measured in terms of conventions concluded and ratified. While an effort in 1925 apparently suffered from too much ambition at the time, the latest Hague treaty on enforcement of judgments, negotiated throughout the 1960s, lacked sufficient vision to keep the Europeans from turning their attention to creating a more ambitious treaty regime among themselves in the form of the Brussels Convention, the effects of which were soon expanded through the soon equally successful Lugano Convention. In addition, the 1971 Hague Convention suffered from an exceedingly complex form, leading to ratifications only by Cyprus, the Netherlands, and Portugal.Thus, it was clear from the beginning that, in order to be considered for ratification by a significant number of nations, the new project needed to adopt what is perhaps the most important feature distinguishing the Brussels and Lugano Conventions from most other recognition treaties: It needed to deal with judicial jurisdiction directly rather than merely indirectly as a recognition requirement as had been done in the 1971 Convention and other traditional conventions simples. The only question, contentious until relatively late in the process, was whether the new Convention should become a convention double like the Brussels and Lugano Conventions, that is, one that exhaustively lists the available bases of jurisdiction, or a convention mixte. Samuel P. Baumgartner International Litigation http://works.bepress.com/samuel_baumgartner/7 http://works.bepress.com/samuel_baumgartner/7 Thu, 28 Feb 2008 08:47:20 PST Samuel P. Baumgartner International Litigation http://works.bepress.com/samuel_baumgartner/6 http://works.bepress.com/samuel_baumgartner/6 Thu, 28 Feb 2008 08:38:41 PST This is a comment on an article by Professor Burt Neuborne, in which he describes in detail the Holocaust assets litigation against Swiss, German, Austrian, and French corporations. In the comment, I attempt to put that litigation episode into the larger context of human rights enforcement through civil litigation in United States courts as seen from a theoretical concept drawn from international relations theory. I then try to gain some insights into such civil human-rights litigation from the Holocaust cases.I conclude that the Holocaust-era litigation has done considerable good by creating a vast pool of assets for distribution among victims of the Holocaust whose claims had been submerged by the politics of the Cold War. At first blush, the litigation also appears to support the theory that granting individuals standing to sue for human-rights violations in national courts improves enforcement of human rights. Upon closer examination, however, the picture is less clear: All of the Holocaust cases were settled. Moreover, few, if any, of them led to pronouncements on the difficult questions of international human rights law at issue, thus leading one to wonder whether human rights were effectively enforced here. While Americans may insist that the settlements were surely negotiated "in the shadow of the law," the relevant actors in the European countries involved are convinced, and the evidence in these cases is quite strong, that the settlement outcomes were less the result of international law than of U.S. power. As I demonstrate, this perception may have considerable costs. It may breed resentment, which, in turn, may affect outcomes in cases and issue areas in which the United States and its litigants do not have the upper hand. It may also lead to protective action abroad that renders pursuing human rights claims more difficult, both in the United States and elsewhere. We are thus faced with a paradox: The same features that make civil litigation in the United States particularly attractive to human rights claimants - its ability to create new remedies, judicial discretion, liberal pleading, class actions, and the ability of parties to join every conceivable claim - may also make it ineffective in enforcing human rights and in fashioning new human rights norms, particularly when combined with measures by other branches of government. These are issues that need to be considered carefully by scholars in law and international politics when conceiving and empirically testing theories about the role of law and procedure in the behavior of nation states, groups, and individuals in the international sphere. Samuel P. Baumgartner Civil Procedure http://works.bepress.com/samuel_baumgartner/5 http://works.bepress.com/samuel_baumgartner/5 Thu, 28 Feb 2008 08:26:56 PST During the last fifteen years, there has been a growing interest in litigation transcending national borders. Yet, both in the United States and in Europe, where this interest is much older, a comprehensive intellectual framework to deal with this type of litigation is hard to find. In fact, courts and procedural law reformers still approach transnational cases in the same fashion as purely domestic ones, adjusting the concepts of domestic law where they believe it necessary. This has created significant problems both for litigants seeking justice in transnational cases and for lawmakers fashioning policy specifically for the transnational setting.In light of recent developments in international trade law and in the European Union, this Article argues that, as a normative matter, we should begin to treat transnational litigation as a distinct field. It suggests that in-depth procedural comparison and international relations theory would have much to contribute to such a field. It uses a case study on judicial cooperation in Germany for litigation in the United States to demonstrate various ways in which lawmaking for transnational litigation is interconnected beyond national borders. The Article concludes that procedural law reformers who continue to disregard insights from both international politics and comparative procedure are apt to lose control over their lawmaking efforts to savvy groups, to international trade regimes such as the WTO and NAFTA, and to lawmakers abroad. Samuel P. Baumgartner International Litigation http://works.bepress.com/samuel_baumgartner/4 http://works.bepress.com/samuel_baumgartner/4 Thu, 28 Feb 2008 08:18:41 PST Class actions have gone global. Foreign parties are no longer a rarity in U.S. class litigation, among other developments. In addition to being named as defendants, foreigners increasingly form a significant part of the group of absent class members. U.S. courts have thus begun to consider some novel issues, including whether due process requires foreigners to be treated as an opt-in rather than an opt-out class; whether a judgment or settlement in the suit is capable of being enforced or recognized as res judicata abroad and thus whether class certification is justified in the first place; and whether a foreign forum grants comparable access to justice in the form of group litigation and thus represents an adequate alternative forum for purposes of a forum non conveniens defense. Knowledge about the relevant foreign procedure, institutions, and jurisprudential values thus becomes crucial for decision-making in this area. In this Article, I attempt to contribute to that information with a look at group litigation devices in Switzerland. In discussing both proposals to introduce an American-style class action that were rejected in the present effort to draft a federal code of civil procedure and the workings of existing group litigation devices, I try to explore the major reasons for the Swiss reluctance to add the class action to the country's existing procedural vehicles. Samuel P. Baumgartner Class Action http://works.bepress.com/samuel_baumgartner/3 http://works.bepress.com/samuel_baumgartner/3 Thu, 28 Feb 2008 07:36:35 PST In this essay, I review the fourth edition of Gary Born's International Litigation in United States Courts (ICL), now co-authored by Peter Rutledge. This is a well-established case book/treatise that has influenced the thinking of many lawyers, both in the United States and abroad. In reviewing ICL, I explore some of the recent changes in cross-border litigation in the United States reflected in the fourth edition. Those changes demonstrate that transnational litigation has become a separate field of law in the sense that its independent study has acquired considerable practical importance. But there is more. The changes I review also support my argument that transnational litigation is different from domestic litigation in four distinct ways: (1) it involves widely different laws of other nations; (2) most attorneys, judges, and law reformers lack (adequate) knowledge about differences in those laws; (3) a limited number of transnational actors do possess such knowledge and thus have effective access to foreign litigation systems, legislatures, and executives; and (4) transnational litigation involves foreign nations and thus issues of sovereignty and relative state power. At the same time, there is considerable transnational interconnectedness in the enterprise of making and applying law in this area. Practicing lawyers, judges, and law reformers disregard these features at their peril. That in itself, I suggest, is sufficient reason to subject the distinct problems posed by cross-border proceedings to learned study. Thus, viewed properly, transnational litigation is emerging as a separate field of research. In this new field of research, scholarship in comparative law and international and comparative politics, both theoretical and empirical, will play a central role. Samuel P. Baumgartner International Litigation