Litigation Isolationism

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts. This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that permit or require courts to dismiss a case based on its “foreignness.” Doing so helps to identify the particular concerns justifying this kind of avoidance and to evaluate them on their own terms. Second, the Article presents evidence of emerging foreign trends that increasingly (and surprisingly) permit traditionally American, plaintiff-friendly procedures, including higher damages awards, aggregate litigation, and third-party litigation financing. Third, the Article demonstrates that, particularly in light of these foreign trends, avoidance has failed to achieve its stated goals, and in many instances has undermined them. Finally, the Article suggests ways to refine avoidance doctrines to address these unintended consequences. Its more basic and urgent task, however, is to identify the growing phenomenon of litigation isolationism, highlight its perversities, and caution against its further expansion

The Unsung Virtues of Global Forum Shopping

Forum shopping gets a bad name. This is even more true in the context of transnational litigation. The term is associated with unprincipled gamesmanship and undeserved victories. Courts therefore often seek to thwart the practice. But in recent years, exaggerated perceptions of the “evils” of forum shopping among courts in different countries have led U.S. courts to impose high barriers to global forum shopping. These extreme measures prevent global forum shopping from serving three unappreciated functions: protecting access to justice, promoting private regulatory enforcement, and fostering legal reform. This Article challenges common perceptions about global forum shopping that have supported recent doctrinal developments. It traces the history of concerns about global forum shopping and distinguishes between domestic and global forum shopping to discern the core objections to the practice. It then identifies these unappreciated virtues of global forum shopping and suggests balanced ways for courts to protect them

The Adjudication Business

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts challenges received accounts of the competitive relationships between and among courts and arbitral tribunals for this business. London and New York have long beenconsidered the forums of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond. The emerging scholarship addressing these new courts tends to view them as engaged in a global competition with each other and with arbitration to create the most efficient dispute resolution mechanism. That account oversimplifies. The creation of each of these courts is driven by multiple factors on the ground. This Article makes four contributions to the study of international commercial courts and their relationship to arbitration. First, it offers a categorization of international commercial courts based on the forces apparently driving their creation. Second, it critiques the “race to the top” narrative both within the law-and-economics framework and outside of it, drawing attention to the range of domestic and international forces driving the courts’ rise. The courts’ success therefore will not necessarily be based on the excellence of the adjudication they provide, but rather on other metrics, such as the number of cases or amount of investment they attract, that reflect what drove States to create the international commercial court in the first place. Third, these courts challenge the traditional U.S. view that arbitration and litigation are opposites. In fact, international commercial courts borrow many features from arbitration, like expert adjudicators, confidentiality, and customizable procedures. These courts thus pose the questions: what characteristics of arbitration and litigation are fundamental, and what do parties prefer? Fourth, the Article celebrates procedural innovation but warns international commercial courts against becoming beholden to either sovereign or private interests.

The Arbitration-Litigation Paradox

The Supreme Court’s interpretation of the Federal Arbitration Act is universally touted as favoring arbitration. Its arbitration cases and decisions in other areas are also viewed as supporting the Court’s more general hostility to litigation. These pro-arbitration and anti-litigation policies can be mutually reinforcing. Moreover, they appear to be mutually consistent, in part because the Court describes the essential features of arbitration as being “informal,” “speedy,” “efficient”—in short, the categorical opposite of litigation. This Article contends that the Court’s approach is not as “pro- arbitration” as it appears. On the contrary, the Court’s pro-arbitration and anti- litigation values sometimes conflict. When they do, hostility to litigation wins. For example, consider an arbitration clause that explicitly authorizes de novo judicial review. Pro-arbitration policies favoring party autonomy would enforce the clause and allow judicial review, but anti-litigation norms would require the opposite. In that factual context and others, the Supreme Court’s hostility to litigation has overridden its support for arbitration. Such results are particularly problematic for international commercial arbitration. This is the arbitration-litigation paradox: because courts play an important role in supporting arbitration, some litigation is needed to support arbitration. Efforts to limit litigation in U.S. courts and enforce distinctions between litigation and arbitration may in turn limit courts’ ability to offer this support. Moreover, the Court’s hostility to litigation—in arbitration cases and in other, seemingly unrelated contexts—weakens U.S. courts’ ability to prioritize arbitration values such as party autonomy and procedural flexibility. This Article advocates prioritizing such values over hostility to litigation. It considers several avenues for pursuing this approach and sets the stage for further research into the competitive relationship between arbitration and litigation

Arbitral Courts

In recent years, states from Delaware to Dubai have been establishing something in between courts and arbitration, what this Article calls “arbitral courts.” Arbitral courts mimic arbitration’s traditional features. They hire internationally well-regarded judges who may also work as arbitrators. They claim the neutrality, expertise, and sometimes the privacy and confidentiality of international arbitration. Unlike arbitration, however, they bind third parties, develop law, and wield the power of the state. This Article identifies, theorizes, and explores the significance of these new arbitral courts. Arbitral courts unsettle traditional distinctions between public and private adjudication. Their appearance has significant consequences not only for understanding the state of the evolving international judicial system, of which U.S. courts have historically been an important part, but also for the future of legitimacy and transparency in dispute resolution around the world. There is much to applaud about the innovation of arbitral courts. But questions remain about whether there is and should be a dividing line between public and private adjudication. This Article uses arbitral courts to investigate that line by distinguishing between courts’ and arbitral tribunals’ claims to legitimacy and their needs for transparency and publicity. It argues that arbitral courts have the potential to develop influential transnational law—if they can maintain the traditional openness of courts despite parties’ preferences for confidentiality. To do so, they should publicly declare their commitment to being a public institution and take other steps to ensure that they maintain transparency over time, even when other forces—like the parties’ preferences—pressure them to become more private

The Adjudication Business

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts also challenges the traditional accounts of the competitive relationship between and among courts and arbitral tribunals for this business. London and New York have long been considered the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond. The emerging scholarship addressing these new courts tends to view them as engaged in a global competition with each other and with arbitration to create the most efficient dispute resolution mechanism. That account oversimplifies. The creation of each of these courts is driven by multiple, different factors on the ground. This Article makes four contributions. First, it offers a categorization of international commercial courts based on the forces apparently driving their creation. Second, it critiques the “race to the top” narrative both within the law-and-economics framework and outside it, drawing attention to the range of domestic and international forces driving the courts’ rise. The courts’ success therefore will not necessarily be based on the excellence of adjudication they provide, but rather on other metrics, like the number of cases or amount of investment they attract, that reflect what drove states to create the international commercial court in the first place. Third, these courts counter a traditional U.S. narrative that arbitration and litigation are opposites. International commercial courts borrow many features from arbitration, like expert adjudicators, confidentiality, and customizable procedures. These courts thus raise questions about what characteristics of arbitration and litigation are fundamental and what parties prefer. Fourth, the Article celebrates procedural innovation but warns international commercial courts against becoming beholden to either sovereign or private interests

A Tale of Two Civil Procedures

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship largely focus on federal courts but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, for many aspects of procedure this breakdown can be misleading. Two different categories of courts are just as salient for understanding American civil justice: those that routinely include lawyers and those where lawyers are fundamentally absent. This Essay urges civil procedure teachers and scholars to think about our courts as “lawyered” and “lawyerless.” Lawyered courts include federal courts coupled with state court commercial dockets and the other pockets of state civil courts where lawyers tend to be paid and plentiful. Lawyerless courts include all other state courts, which hear the vast majority of claims. This Essay argues that this categorization reveals fundamental differences between the two sets of court procedures and much about the promise and limits of procedure. The Essay also discusses how this dichotomy plays out in three of today’s most contentious topics in civil procedure scholarship: (1) written and unwritten proceduremaking, (2) the role of new technology, and (3) the handling of masses of similar claims. This categorization illuminates where and how lawyers are essential to procedural development and procedural protections. They also help us better understand when technology should assist or replace lawyers and how to reinvent procedure or make up for lawyers’ absence. Finally, they reveal that fixing court procedure may simply not be enough

Traveling Judges

Around the world, domestic courts focused on commercial disputes hire foreign judges. The practice seems to resemble arbitration, but is also rooted in colonialism. These traveling judges are predominantly retired English judges hired by small, market-dominant jurisdictions, like Hong Kong or Dubai. The judges’ identities reveal efforts to harness business preferences for English common law into domestic court systems. While judges aspire to spread the rule of law, local politics may dictate these courts’ futures. This Article maps the practice of traveling judges and explores its implications