Human Rights and Civil Litigation in United States Courts: The Holocaust-Era Cases

Human rights are a serious matter. Unfortunately, in spite of half a century of improving the civil rights of individuals through treaties and customary international law, and despite increasing attention to those rights by both governments and scholars of international law and international relations, much remains to be done to prevent and punish even the most egregious violations of human dignity. Professor Neuborne\u27s Article and the extensive briefs to which he repeatedly refers recap the atrocities committed by the German Nazi regime and ask uneasy but necessary questions about the Nazi regime\u27s accomplices and their responsibility for what transpired in the death camps of Eastern Europe some sixty years ago. It invites one so inclined both to analyze some of the more controversial issues of class action litigation--particularly settlement--as well as the role of civil litigation in the U.S. courts within transnational society. This article examines the role of civil litigation in American courts for purposes of enforcing international human rights law and the way in which such litigation affects the conduct of transnational procedure in general

Recent Reforms in EU Law: Recognition and Enforcement of Judgments

The European Union has just adopted a set of amendments to the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and the recognition and enforcement of foreign judgments. This article discusses the Regulation and the adopted amendments regarding the recognition and enforcement of judgments and argues that these amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation in the European Union over the last two decades. The article concludes with an analysis of both the amendments and the underlying changes for litigants and law reformers in the United States, given that U.S. litigants are increasingly likely to be affected by the Brussels I Regulation in transnational cases and recognition of foreign judgments is discussed both as a subject of potential federal legislation and an international treaty at the Hague

Switzerland

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

Class Actions and Group Litigation in Switzerland

In what follows, I hope to contribute to that information with a look at group litigation devices in Switzerland. To begin with, Switzerland is one of the many countries that do not currently have an American-style class action. Suggestions to examine the possibility of introducing such a procedural vehicle have met with considerable opposition. Some of the reasons for that opposition are grounded in reactions to litigation in the United States. More broadly, however, there seems to be a general unease with civil litigation involving more than the traditional plaintiff and defendant and an occasional individual joined out of an urgent need, such as to extend res judicata effect to a co-heir or business partner. Below, I intend to explore the most important reasons for that reluctance. I will do so first by analyzing the proposals to introduce an American-style class action and their rejection. I will then take a closer look at the group litigation devices that already exist in Swiss procedure. They include devices to let similarly situated individuals sue together (joinder of parties), to have an organization sue for its members with similar rights (Verbandsklage and Verbandsbeschwerde), and to allow a court to consolidate claims arising out of the same controversy. Moreover, certain shareholder litigation results in judgments that are binding on all or an extended group of shareholders. As my analysis below demonstrates, however, even these devices have been interpreted narrowly by the courts and used with little aggressiveness by litigants

Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to adopt federal legislation on the question of recognizing and enforcing foreign judgments in the United States. And at the Hague Conference of Private International Law, the project – begun in the 1990s and later shelved – to enter into a world-wide convention on the recognition of foreign judgments, has just been put on the agenda for further study. In this Article, I focus on the major obstacles U.S. judgment holders have encountered abroad as a matter of foreign recognition doctrine and to analyze the reasons underlying those obstacles. This should help lawmakers and treaty negotiators better understand what sorts of problems U.S. judgments holders are likely to encounter and why. I propose that we distinguish those obstacles on the basis both of the purpose they are meant to serve and of the way in which they have developed. Thus, I submit that the doctrinal obstacles identified pursue three distinct purposes: the protection of the sovereignty of the recognition state; the protection of other public interests of the recognition state; and the protection of the party against whom the U.S. judgment is to be used from what the recognition state views as substandard legal norms or procedural treatment. I further suggest that we separate the doctrinal obstacles encountered by U.S. judgments holders abroad into two categories on the basis of how they have developed. The first category consists of doctrines that were set in place some time ago and that apply to all judgments from jurisdictions with which the relevant country does not have a recognition treaty, including the United States. The second category consists of slight changes to existing recognition doctrine that some foreign jurisdictions have adopted specifically in reaction to litigation in the United States. This second category has come about, I argue, through the operation of four factors: power politics, domestic legal and procedural culture, the preferences of groups and individuals inside and outside the state apparatus, and relevant information asymmetries

Class Actions and Group Litigation in Switzerland

In what follows, I hope to contribute to that information with a look at group litigation devices in Switzerland. To begin with, Switzerland is one of the many countries that do not currently have an American-style class action. Suggestions to examine the possibility of introducing such a procedural vehicle have met with considerable opposition. Some of the reasons for that opposition are grounded in reactions to litigation in the United States. More broadly, however, there seems to be a general unease with civil litigation involving more than the traditional plaintiff and defendant and an occasional individual joined out of an urgent need, such as to extend res judicata effect to a co-heir or business partner. Below, I intend to explore the most important reasons for that reluctance. I will do so first by analyzing the proposals to introduce an American-style class action and their rejection. I will then take a closer look at the group litigation devices that already exist in Swiss procedure. They include devices to let similarly situated individuals sue together (joinder of parties), to have an organization sue for its members with similar rights (Verbandsklage and Verbandsbeschwerde), and to allow a court to consolidate claims arising out of the same controversy. Moreover, certain shareholder litigation results in judgments that are binding on all or an extended group of shareholders. As my analysis below demonstrates, however, even these devices have been interpreted narrowly by the courts and used with little aggressiveness by litigants

Civil Procedure Reform in Switzerland and the Role of Legal Transplants

On January 1, 2011, Swiss courts will begin operating under a unified federal code of civil procedure for the first time in the country’s history. This code has been exceedingly long in the making. In this chapter, I use the new code and its history to engage the editors’ claim that the old categories of common law and civil law procedure are crumbling, thus making differences among countries within the common law or civil law world more important than differences across the divide. First, the new Swiss code of civil procedure includes a number of features that may look like they were borrowed from the common law world or, more succinctly, from the United States. Yet, they have long been features of the codes of some Swiss cantons, partly originating in Switzerland itself, partly borrowed centuries ago from neighboring countries. Perhaps then, the distinction between common law and civil law procedure has never been as clear-cut as some accounts would have it. Second, the new Swiss Code almost entirely eschews borrowing from foreign legal systems, common law or civil law. In examining the reasons for this lack of borrowing, I attempt to identify possible circumstances under which borrowing is likely to occur and when it is not. I conclude that the operating assumption of any project of procedural reform is going to be to refrain from borrowing unless particular countervailing forces prevail. Thus, I do not think that the distinction between common law and civil law is likely to disappear soon. Neither, however, do I think the distinction has ever been as pronounced as is often assumed