Why Transnational Litigation?
March 28, 2022
The justiciability of Holocaust expropriation claims; treaty interpretation in international custody disputes; the adequacy of pleading the enslavement of children; accessing U.S. discovery for international arbitration; the availability of punitive damages for international terrorism; the immunity of international organizations before U.S. courts; how to serve process on a foreign state: The U.S. Supreme Court has considered all of these transnational litigation questions just in the last few years. When people, goods, and money cross borders, so do disputes. And when disputes cross borders, U.S. courts–both state and federal–must figure out how to accommodate foreign parties, foreign claims, and foreign law.
The resulting questions and challenges bridge areas of study and practice that are too often siloed. Our goal in founding TLB is to bring together scholars and practitioners who may not yet realize how much they have in common. We come to transnational litigation from different scholarly perspectives, and we aspire for TLB to be a forum for all of them.
Maggie: Every stage of transnational litigation raises challenging questions of civil procedure and conflicts of law. For some of these questions, doctrine is relatively clear–thanks to international treaties (like the Hague Service Convention) or legislative interventions by Congress (like the Foreign Sovereign Immunities Act). In other areas, doctrine is judge-made and actively evolving. It is not just that civil procedure matters for transnational litigation, then, but that transnational litigation matters for civil procedure. The answer to some of these questions–like the proper scope of personal jurisdiction over foreign defendants–can have real repercussions for procedure in purely domestic cases. And the answers to others–like the appropriateness of abstention–implicate foundational issues of federal courts and federalism.
Ingrid: I am drawn to this field in part because it occupies liminal space that complicates many boundaries, including between public and private international law, between international and domestic law, between domestic and foreign law, between substance and procedure, between state and federal law, and between judicial and executive power. Constitutionally, many of the open questions involve the Fifth Amendment’s Due Process Clause, in particular its application to foreign nations, foreign state-owned enterprises, and foreign corporations and individuals, including in the context of personal jurisdiction. Other untidy areas (both in terms of theory and in terms of doctrine) involve the status and interpretation of various federal common law doctrines such as foreign official/head of state immunity and the act of state doctrine, which have a contested relationship to executive power and to international law. Finally, so many of the cases raise challenging foreign policy questions, whether directly or indirectly, and there are lots of foreign sovereign immunity cases with wonderful art at stake (as well as interesting questions of statutory interpretation).
John: Many transnational disputes begin with a business contract between companies based in different nations. When the contractual relationship sours, one contracting party brings suit against the other. Some of these claims are brought in national courts, while others go before arbitral tribunals. To resolve these disputes, judges and arbitrators must grapple with a range of issues that do not arise in purely domestic litigation. In many cases, the terms of the contract itself will dictate how these issues are resolved. A forum selection clause selecting the courts of a particular nation, for example, may lead to the suit being dismissed or to the assertion of personal jurisdiction. A choice-of-law clause selecting the laws of a particular nation, in turn, may make it unnecessary for a judge or arbitrator to engage in a choice-of-law analysis. Cases arising out of transnational business disputes are perhaps less glamorous than those touching on U.S. foreign relations law or the law of international human rights. The efficient resolution of such disputes, however, plays a vitally important role in promoting international trade and commerce.
Bill: Human rights litigation in U.S. courts has raised a host of fascinating issues, including the status of customary international law in the U.S. legal system and the authority of courts to recognize and shape a federal common law cause of action to enforce that law. As the Supreme Court has whittled away the implied cause of action under the Alien Tort Statute (ATS), more litigation has been brought under the Torture Victim Protection Act (TVPA) and the Trafficking Victim Protection Reauthorization Act (TVPRA). Human rights litigation has also raised important issues of foreign official immunity in the wake of the Supreme Court’s Samantar decision holding that the FSIA does not govern the immunity of natural persons. Questions of extraterritoriality arise repeatedly in human rights cases and other transnational litigation. The Supreme Court adopted a new approach to extraterritoriality in recent years, and lower federal courts are continuing to work out its implications in a range of substantive areas, from securities to intellectual property. One must also not forget about state courts and state law. State law governs many areas of transnational litigation, like choice of law and the enforcement of foreign judgments. State law can impact the applicability of transnational litigation treaties like the Hague Service Convention. And states have adopted their own approaches to doctrines like forum non conveniens and extraterritoriality.
Whether your interest lies in one or all of these areas–or whether you are merely curious about a particular case or doctrine–we hope you find useful the updates, insights, and explanations in the posts that are to follow. Welcome to our forum!