Hartley, T. C.

English

University of Denver

Denver Journal of International Law & Policy Volume 15 Number 2 Winter/Spring Article 15 May 2020 Litigation of International Disputes in U.S. Courts T. C. Hartley Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation T. C. Hartley, Litigation of International Disputes in U.S. Courts, 15 Denv. J. Int'l L. & Pol'y 435 (1987)(book review). This Book Review is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. BOOK REVIEWSLitigation of International Disputes in U.S.CourtsReviewed by T.C. Hartley*Nanda, V.P. and Pansius, D.K., Litigation of International Disputes in U.S.Courts, Clark Boardman, New York (1986); $85.00 ISBN 0-87632-509-6, 546pp.; index. (Volume 4, International Business & Law Series).This book covers the principal areas of law relevant to internationallitigation in American courts. The authors identify eleven such areas andeach of these is the subject of a separate chapter.1 The chapters are, how-ever, of greatly differing lengths and almost half the book consists of justtwo chapters, dealing respectively with sovereign immunity and the act ofstate doctrine. These are both topics of great importance in transnationallitigation, though they concern one particular aspect of it, namely the le-gal position of foreign states and the extent to which they are exemptfrom the rules applicable to private citizens. Sovereign immunity is con-cerned with the extent to which a state is immune from the jurisdiction ofthe courts of other states, and the act of state doctrine lays down princi-ples regarding the right of the courts of one country to sit in judgmentover the acts of a foreign state. These separate, but related, doctrines arerelevant only when a plaintiff seeks to obtain a remedy against a foreignstate (or its agency) or seeks to obtain a remedy with regard to acts of aforeign state.Other topics given substantial treatment are personal jurisdictionand extraterritoriality. The former, which is concerned in particular withthe constitutionally-mandated requirement of minimum contacts, raisesissues which are basic in any transnational action in an American court;the latter, on the other hand, concerns a question which, though of greatinterest (and the cause of significant international disputes between theUnited States and other countries), is likely to be of practical importancein only a relatively small number of cases.* B.A., LL.B., Cape Town University; LL.M., University of London. Reader in Law,London School of Economics.1. There is also a twelfth chapter, on the recognition of American judgments and arbi-tral awards in foreign countries, which, though obviously relevant, is not, strictly speaking,within the main theme of the book.DEN. J. INT'L L. & POL'YTwo other topics of great practical importance are given fairly sub-stantial treatment. These are forum non conveniens, which is raised inalmost every international case, and forum-selection and choice-of-lawclauses in transnational contracts.The remaining topics are dealt with briefly: service of process abroad,venue in suits with alien defendants, extraterritorial discovery, pleadingand proof of foreign law, the recognition of foreign judgments and arbitralawards in American courts and the recognition of American judgments inforeign courts. Many of these topics do not warrant more than summarytreatment. However, the subject of extraterritorial discovery deservesfuller treatment than the nine pages devoted to it. For example, the prob-lem of foreign blocking statutes and bank-secrecy laws is covered simplyby discussing the relevant sections of the draft Restatement of the For-eign Relations Law of the United States.2 Major cases are then listed in afootnote. The Hague Convention on the Taking of Evidence Abroad inCivil or Commercial Matters (now being considered by the SupremeCourt in the Aerospaciale case)3 is discussed in less than a page, in spiteof its complexities and the number of cases in which it has been in issueboth in the United States and in foreign countries (where American liti-gants have often experienced considerable difficulties in obtaining docu-mentary evidence needed in American actions). More could also havebeen said in the chapters on the recognition of judgments in foreigncourts. Rather than to summarize the law of six countries in twentypages, it might have been better to omit this latter chapter altogether,since it does not fit within the scope of the book.In spite of these limitations (which are of minor importance when setagainst the excellent coverage of the topics mentioned earlier) the book asa whole deals with most of the questions within its scope. It is, moreover,an area of such great academic interest and practical importance that it issurprising that no comparable books have been published.4 For this rea-son alone, the publication of this book is an important event for all thoseinterested in transnational law. But what makes it particularly valuable isthe excellent job of work that the authors have performed. In most of thechapters they have found a level of specificity which succeeds both ingiving the reader a clear general picture and in supplying sufficient detailto lead to a good understanding. This is not an easy thing to do andshows both the expositional skills of the authors and their grasp of com-plex areas of the law. Just as important, they have dealt with the main2. RESTATEMENT (SECOND) OF THE LAW OF FOREIGN RELATIONS (Tentative Draft No. 31982).3. Re Societe Nationale Industrielle Aerospaciale, 782 F.2d 120 (8th Cir. 1986). At thetime of writing (February 1987), the Supreme Court has not yet handed down its decision.4. G. DELAUME, TRANSNATIONAL CONTRACTS: APPLICABLE LAW AND SETTLEMENT OF Dis-PuTEs (1975), a multi-volume work by a well-known authority, covers some of the topicsdealt with by Nanda and Pansius, but its greater length and higher degree of specializationsets it apart.VOL. 15:2,3BOOK REVIEWStopics clearly and systematically, showing how different theories fit to-gether in different ways. For example, they explain how the minimumcontacts doctrine might apply differently in federal courts in diversitycases and federal-question cases, and how subject-matter jurisdiction andpersonal jurisdiction are separate requirements, though this fact maysometimes be overlooked. For these reasons, the book will be of greatvalue to the practising attorney: it will enable him to grasp the problemsthat lie ahead when he begins an international action. He will learn fromit what to do and what to avoid and, if he has to argue one of the pointscovered in the book, it will provide the starting point for his research. (Inthis respect, it is a pity that the book does not provide a table of casesand a list of the main articles and specialized books dealing with each ofthe topics covered: these would have made the task even easier).5 Thebook will also be of use to students in the many law school courses nowdevoted to transnational law, since its clarity and structured presentationmake it a delight to read straight through.5. It is also a pity that the cut-off date, which appears to be some time in 1984, is notspecified, so that the reader knows how far back he must go when researching for newmaterial.1987

Litigation of International Disputes in U.S. Courts

https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=2337&amp;context=djilp

Litigation of International Disputes in U.S. Courts

Abstract

Similar works

Full text

Available Versions

University of Denver