Copyright (c) 2009 All rights reserved. http://works.bepress.com/samuel_baumgartner Recent documents in Samuel P. Baumgartner en-us Tue, 27 Oct 2009 14:12:34 PDT 3600 http://works.bepress.com/samuel_baumgartner/11 http://works.bepress.com/samuel_baumgartner/11 Fri, 06 Mar 2009 12:13:36 PST Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform. Samuel P. Baumgartner Civil Litigation Class Action Civil Procedure 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 Under this heading, Duke University School of Law and the Facult6 de droit de l'Universitd de Gen~ve cohosted an international conference in Geneva on July 21-22, 2000. The conference convenor, Professor Thomas Rowe of Duke, succeeded in bringing together a respectable number of leading judges, academics, and practitioners from various countries, mostly Europeans and Americans (including a number of practitioners and scholars from South America), to discuss the merits and demerits of group and class-action litigation. The debates were highly profitable not only because of the quality of the speakers, but also because of the conference format: After traditional sessions with speakers and commenters on U.S. class actions; group litigation in other common law countries; traditional civil law approaches; and on class-actions and proposals in Brazil and Scandinavia,' participants had a chance to join the discussion in smaller break-out sessions on specific subtopics. Thereafter, Professor Arthur Miller treated the audience to a one-and-a-half-hour Socratic-style dialogue with some 20 panelists from the various break-out groups. This dialogue had the benefit of forcing the panelists to listen and to respond to specific arguments rather than letting them present well rehearsed statements. In the hands of a recognized master of the Socratic method, this approach elicited a veritable fireworks of excellent arguments on various aspects of group litigation, summarizing, and often critically improving on, what had been said previously during the conference. 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 As Judge Vanderbilt pointed out earlier in this century, "judicial reform is no sport for the short-winded[.]" The difficulties involved in such reform are intensified when combined with an attempt at global harmonization. Organizations such as UNIDROIT and UNCITRAL have attempted harmonization for decades with varying degrees of success. But even they have traditionally refrained from harmonization in the field of procedure where, as the wisdom goes, the law is strongly connected to the cultural and historical heritage of a particular jurisdiction. Thus, in setting out to draft uniform rules of civil procedure for transnational cases that seek both to combine "the best elements in various legal traditions" and to be "culturally neutral," Professors Hazard and Taruffo have not only set high standards for themselves but have also embarked upon an enterprise that seems to face virtually insurmountable barriers.At the same time, Professors Hazard and Taruffo appear to be in accord with a current trend. In their search for improvements, procedural reformers are increasingly studying the approaches of foreign legal systems. The jurisprudence of international tribunals, particularly that of the European Court of Justice, has shown an increasing trend toward harmonizing specific aspects of civil procedure. Indeed, a private group of experts recently submitted to the European Commission a Draft Directive that seeks to harmonize many areas of European civil procedure, both domestic and transnational. What, then, are the chances that the Transnational Rules project will beat the odds, both real and perceived, and turn this trend toward procedural harmonization into a valuable and lasting development in transnational litigation? The answer to that question depends heavily upon one's predilections. Thus, we decided to conduct a small survey among Swiss and German proceduralists, both academics and practitioners, to collect their views on the Transnational Rules. The beginning of this survey dates back to early 1996, when Professors Hazard and Taruffo mailed out their first draft of the Transnational Rules and requested the comments of proceduralists in various countries. As one such proceduralist acting as reporter for Switzerland, Professor Walter solicited the written comments of a number of academics and practitioners in his country. In the meantime, Professors Hazard and Taruffo have revised their first draft several times, in some respects, substantially so. We wondered how this latest draft would fare and wanted to expand the base for our inquiry. Thus, we repeated the process in neighboring Germany.The Swiss part of the survey on the first draft yielded six responses: one from a professor of transnational civil procedure, one from a senior official at the Ministry of Justice, one from a justice of the Federal Court, and three from attorneys frequently involved in transnational proceedings. Our effort in Germany yielded nine responses: four from professors of transnational civil procedure, two of whom are also part-time judges at the Oberlandesgericht (Court of Appeals) of their areas; one from a judge at the Oberlandesgericht; and four from practicing attorneys involved in transnational practice. Many of these individuals, including the practitioners, are leading experts on transnational civil procedure in their respective countries.Although this survey is far from scientific, it provides a better picture than would our own views of the difficulties Professors Hazard and Taruffo are likely to face in these two civil-law jurisdictions and perhaps in other continental European countries as well. The survey also provides the basis for a number of suggestions to improve the project's chances of success. 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 http://works.bepress.com/samuel_baumgartner/2 http://works.bepress.com/samuel_baumgartner/2 Wed, 24 Oct 2007 09:54:51 PDT Transnational cases have become a prominent part of the litigation landscape in the United States. Class actions against foreign defendants are widespread, the Alien Tort Claims Act has emerged as a mainstay of proceedings to enforce international human rights law in U.S. courts, and the globalization of the economy has led to an increase in transnational regulatory litigation. In all these cases, however, the parties need to ask themselves whether an ensuing judgment or settlement can be recognized or enforced abroad. For quite some time, the perception in the United States has been that U.S. judgments do not fare very well when the time comes to recognize or enforce them abroad. If so, the resolution of a considerable number of transnational cases in this country would have no effect abroad, not exactly the result that lofty talk about "transnational adjudication" would seem to entail.In this paper, I intend to provide some answers to the question how well U.S. judgments really fare in Europe, where many of the important trading partners of the United States are located. I conclude that, on average, the recognition and enforcement of U.S. judgments does indeed face more obstacle in Europe than do European judgments in the United States. However, much depends on the country, the subject matter involved, the person of the defendant, and the connection of the dispute to the recognition state, among other things. Thus, a multilateral judgments convention, such as the one initiated by the United States in 1992, could indeed bring similar improvements as have resulted from various conventions and EC regulations adopted by the Europeans regarding their own judgments. The same goes for the federal recognition statute recently proposed by the American Law Institute. Samuel P. Baumgartner Civil Procedure