Is transnational litigation a distinct field? The persistence of exceptionalism in American procedural law.

• Author: Dubinsky, Paul R.

TABLE OF CONTENTS I. INTRODUCTION II. METHODOLOGY III. INTERSTATE-INTERNATIONAL EQUIVALENCE A. The First Wave of American Transnationalism B. The Second Wave of American Transnationalism IV. TRANSNATIONALISM AND THE AMERICAN BENCH A. Reasonableness and the Foreign Defendant: Applying Asahi B. Tag Jurisdiction and the Foreign Defendant C. Judicial Assistance: Discovery in Aid of Foreign Proceedings V. CAVEATS AND OBJECTIONS A. Objection No. 1: The Pervasiveness of Interstate-International Equivalence Has Been Overstated. B. Objection No. 2: A Focus on U.S. Courts is Too Narrow. C. Objection No. 3: The Time Frame is Too Short VI. THE PERSISTENCE OF EXCEPTIONALISM IN AMERICAN PROCEDURAL LAW I. INTRODUCTION: THE QUESTION

Is transnational litigation a distinct field in need of its own distinct procedural law? Or are the U.S. procedural rules, largely written many decades ago and mainly with domestic litigation in mind, appropriate for today's civil disputes that are international in scope? The question is of growing importance; in the coming years, the American legal system likely will continue to confront steady growth in the volume of litigation with an international dimension. This transnationalization of court dockets across the United States appropriately brings the return of a recurrent debate among civil procedure scholars--should one set of procedural rules apply to disputes of all kinds, regardless of the specific substance of the dispute? That is, should American procedural law be trans-substantive?

At first blush, the stars would seem to be aligned for rethinking the transsubstantive ideal in at least one context--transnational dispute resolution, where some regard the complexities of contemporary practice and the sensitivities of foreign sovereign interests as requiring substantial departure from the transsubstantive ideal. (1) In academia, a proliferation of new teaching materials, (2) new courses (3) and profession-wide initiatives (4) suggest that transnational law (5) has entered a golden age, one in which future graduates of American law schools will know more about foreign legal systems than generations of students that preceded them. In the world of law practice, an influential segment of the bar regards transnational dispute resolution as a distinct specialty, practiced and marketed as such, (6) to be staffed with teams of lawyers of different nationality and legal training in more than one legal system, (7) and the basis for separate sections of local and national bar associations. (8) Moreover, as one shifts gaze from law schools and law firms based in the U.S. to developments abroad, one sees a growing body of treaties and other instruments distinguishing transnational from domestic litigation, (9) with the revitalized discipline of comparative law leading the way. (10)

But if many discern from this set of national and international trends a movement toward transnationalism and comparativism in American procedural law, at least for cases with an international dimension, how confident should we be in this forecast? Two or three decades from today, will the American civil procedure and conflict-of-law rules applicable to transnational disputes be noticeably different from those that govern garden-variety domestic cases? Or will differences between the international and the domestic be differences at the margin, as traditionally has been so?

Debate on this subject was joined in the late 1980s, after publication of Gary Born's and David Westin's landmark, International Civil Litigation in U.S. Courts. (11) In a lengthy introduction, Born and Westin argued that what had been regarded as a series of loosely related topics ought to be understood as an integrated field. When seemingly separate doctrinal areas (e.g., extraterritorial application of law, the act of state doctrine, the immunities accorded to foreign states) were studied together, in a systematic way, the whole was greater than the sum of the parts. (12) Born and Westin were soon joined by others announcing the arrival of a new field, "transnational litigation." (13)

Not everyone agreed with the contention that a new label, and the transformation implied by it, was justified. To be sure, there was widespread agreement as to certain facts: Since World War II, growth in the volume and intricacy of litigation involving foreign parties and parallel proceedings (14) had allowed a subset of U.S law firms to specialize in the area. In cases with much at stake, multinational corporate clients retained a small army of specialists (15) to assist them in efforts to coordinate concurrent lawsuits, to seize assets on a global basis, and to manage worldwide litigation-related public relations. (16) Clients repeatedly faced with complex cases potentially implicating the laws and regulatory policies of more than one country increasingly sought counsel with expertise in the procedural laws of foreign legal systems, in satellite litigation, (17) in arbitration, and even in advocacy before regional and international tribunals. (18)

Notwithstanding general acknowledgment of these trends, some scholars questioned the significance of these recent developments, (19) whether there was sufficient coherence to transnational litigation as a new "field," (20) and whether any subset of litigation in American courts is likely to shake off what have been central features of American procedural law for a very long time--a preoccupation with domestic interstate federalism and an understanding of procedural rules as properly autonomous from the substantive nature of the dispute before the court. (21) After all, courts in the United States had served as fora for disputes involving foreign parties and foreign law for a very long time. (22) The American bench had adapted to fluctuating patterns in world trade, to changes in the United States' economic and political stature, and to occasional calls for the U.S. legal system to cooperate more closely with foreign courts. (23) Yet, over a period of more than two hundred years, the rules of civil procedure and conflict of laws applied in transnational cases closely tracked those that applied in domestic cases. (24)

In response to this skepticism, transnationalists assert that the changes brought on by the current phase of globalization are different in magnitude from those encountered by the U.S. legal system before. They argue that at successive stages of litigation, a set of overarching principles repeatedly surface. (25) Regardless of the specific doctrinal issue at stake (e.g., service of process, the effect to be given to a foreign blocking statute), (26) a common pool of policy-based considerations come into play: comity, sovereignty, the efficiency of the international legal system as a whole, the burdens on private parties caught in the crossfire of conflicting national regimes, the desirability of the United States speaking with one voice on matters touching upon the interests of other countries and international bodies. According to Born & Westin, it was these themes, recurrent tensions, and potentially clashing policies that most defined international litigation as a field and made it distinct from purely domestic dispute resolution.

Nearly two decades have passed since this debate began. In that time, has the procedural law applied by American courts to adjudicate international disputes become noticeably autonomous from that which governs wholly domestic disputes? The analysis that follows will unveil an intellectual predisposition of American courts that is rarely observed by commentators or by courts themselves. When American courts are confronted with disputes with a transnational dimension, they reach for a familiar toolbox--one with tools for fixing domestic problems. They extrapolate from their experience with familiar domestic litigation, especially interstate litigation.

2. METHODOLOGY

   In approaching the question raised in the preceding paragraph, the existing scholarship suffers from three main weaknesses. First, it tends to blur the lines between the descriptive and the normative. Whether the procedural law applicable to transnational litigation is meaningfully distinct from that which governs domestic litigation is not the same question as whether it should be. Yet, much of the work on this subject draws the conclusion that the litigation of international disputes in U.S. courts is a separate field because it ought to be one. Second, those who see a breakdown of the trans-substantive model in the area of transnational disputes point to developments in law teaching, (27) legal scholarship, (28) and relatively high-stakes commercial and corporate legal practice. (29) Surprisingly little attention has been devoted to a close reading of judicial opinions--to what judges say and actually do. Third, the problem with extrapolating from worldwide developments (especially initiatives in Europe) to draw conclusions about transnationalism in contemporary American procedural law is the failure to grapple fully with American exceptionalism--the extent to which key aspects of civil procedure in the U.S. are not just different from other legal systems, but much different.

   The current work seeks to fill this void by focusing on two areas of civil litigation--personal jurisdiction and pre-trial discovery--in which litigation practice in the United States is substantially different from other legal systems, even other common-law legal systems. The influence of transnationalism will be approached by analyzing two sets of data. The first is a representative selection of judicial opinions in disputes that possess some international dimension, such as the presence of foreign litigants, the possible application of foreign law, or the need at some point in the proceedings to secure the assistance of foreign courts. The second are opinions in cases in which all of the parties are based in the U.S., no assistance...