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Transnational Litigation in Comparative Perspective

Transnational Litigation in Comparative Perspective Theory & Application

Author: Stephen McCaffrey; Thomas Main
Publisher: Oxford University Press USA
ISBN: 9780195309041
Published In: April 2009
Format: Hardback , 744 pages
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Transnational Litigation in Comparative Perspective: Theory and Application is the only casebook that examines the principal issues in transnational litigation from a comparative perspective. Each chapter focuses on a particular core problem that all legal systems must address. The first half of each chapter is devoted to exploring the theoretical context of the issue, thereby enabling students to appreciate the complexity of the problem and to see how achieving a resolution requires balancing competing interests. The second part of each chapter then focuses on how different systems deal with these challenges. Topics covered include protective measures, personal jurisdiction, forum non conveniens, forum selection clauses, state immunity, state doctrine, service of process, gathering evidence abroad, choice of law, and recognition and enforcement of foreign judgments.

Distinctive Features:

Uses a comparative approach that better prepares future lawyers for international litigation that may be initiated in countries other than the U.S.
Offers a hypothetical at the beginning of each chapter to introduce the fundamental issue; the hypotheticals raise questions that are diagnostic rather than prescriptive, leading to many "right" answers
Accommodates different types of courses--professors who employ a less theoretical approach can use the hypotheticals to ground class discussions
Considers issues unique to arbitration as they arise in connection with the various topics studied

Chapter 1 Introduction and Overview
Chapter 2 Protective Measures
Doctrinal Justifications
National Practice
1. United Kingdom
2. United States
3. European Union
Interim Measures in Support of Arbitration
Anti-Suit Injunction
Chapter 3 Personal Jurisdiction
Jurisdictional Bases
1. Domicile
2. Physical Presence
3. Consent
4. Doing Business
5. Acts
6. Effects
7. Ownership or Possession of Property
8. Plaintiff's Connection
Illustrations of National Practice
1. United States
2. European Union
3. Egypt
4. Kenya
5. China
Chapter 4 Forum Non Conveniens
Common Law Origins and Framework
1. American Cases
2. English Cases
Civil Law Alternatives
Chapter 5 Forum Selection Clauses
Choice of Court Agreements
1. Common Law Perspective
2. Civil Law Perspective
Arbitration Clauses
Chapter 6 State Immunity
Doctrinal Justifications
The Restrictive Theory
Abolition of Immunity
Categorical Exceptions to Immunity
1. Waiver
2. Immovable Property
3. Participation in Associations, Companies, and Other Collective Bodies
4. Intellectual and Industrial Property
5. Commercial Transactions
6. Employment Contracts
7. Personal Injury and Damage to Property
8. Suits in Admiralty
9. Arbitration Agreements
10. State-Sponsored Acts of Terrorism
11. Taking of Property in Violation of International Law
12. Jus Cogens
Immunity from Execution
1. Enforcement Against the State as a Person
2. Waivers
3. Scope of Immunity from Execution
4. Specific Sovereign Assets
Chapter 7 The Act of State Doctrine
Doctrinal Justifications
Chapter 8 Service of Process
The Functions of Service of Process
National Practice
1. United States
2. Portugal
3. China
4. Mexico
International Cooperation
1. Hague Service Convention
2. European Regulation
3. Inter-American Arrangements
4. Asian-African Model Arrangements
A Call for Uniform and Mandatory Rules
Chapter 9 Gathering Evidence Abroad
Discovery in Context
National Practice
Transnational Conflict
International Solutions
1. Hague Evidence Convention
2. Harmonization
U.S. Discovery for Use Abroad
Arbitration
Chapter 10 Choice of Law
Theoretical Approaches
1. Lex Fori
2. Multilateralism
3. Unilateralism
4. Harmonization of Substantive Law
National Practice
1. United States
2. England
3. Japan
4. Germany
5. Austria
6. Switzerland
7. The Rome Regulations
Hague Conventions
Chapter 11 Recognition and Enforcement of Foreign Judgments
Theoretical Bases
1. Efficiency and Commerce
2. Comity and Reciprocity
3. Vested Rights and Legal Obligation
4. Res Judicata
5. Policy Considerations
National Practice
1. United States
2. China
3. Ecuador
4. Germany
5. Denmark, Sweden and Finland
6. England
Multilateral Approaches
1. Regional
2. Global
Chapter 12 Recognition and Enforcement of Arbitral Awards
The New York Convention
Judicial Review at Arbitral Seat

Stephen McCaffrey, Law Professor, McGeorge School of Law, University of the Pacific, and Thomas Main, Law Professor, McGeorge School of Law, University of the Pacific