The Brains and Brawn of Cross-Border Disputes

• Author: Daniel P. Elms
• Pages: 30-30

Published in Litigation News Volume 45, Number 4, Summer 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

BOOK REVIEW

In the era of splintered and d iffuse information, a

comprehensive and reliable desk refer ence is a valu-

able asset. Inte rnational Aspec ts of U.S. Litigatio n, A

Practitioner’s Deskbook (American Bar Ass ociation

2017), edited by James E. B erger, is precisely that kind

of resource. Thi s book is a comprehensive, thoroughly-

researched, a nd user-friendly reference guide th at will

strengthen t he library of lawyers involved in cross-border d is-

putes or who have non-U.S. cl ients that may nd themselves

involved in U.S. lit igation proceedings.

Berger’s book is an elegant c ombination of brains a nd

brawn, contain ing over 1,000 dense pages in two volumes. I t

includes a detaile d Table of Contents a nd an epilogue List of

Cases that per mits the typ e of targeted in formation search

normally reser ved only for electroni c resources. A nd the

seemingly page -by-page Table of C ontents makes up for the

puzzling abse nce of a word or topic index.

The book has an i ntuitive and logical ow. It starts wit h a

discussion on the c onceptual underpinnin gs of U.S. litigation

(e.g., personal and subjec t matter jurisdiction, foru m selection,

venue), transitions to the pract ical aspects of a lawsuit (e.g.,

service of proce ss, choice of law, discovery), and then discusses

the effect and en forcement of judgments. All of this d iscussion

is appropriately contex tualized to intern ational disputes.

The content is heavily foot noted with citations and

substantive parent hetical desc riptions of relevant cases

and commentar y, alt hough the appearan ce of legal deci-

sions from outside the U.S . is sparse. As to certain topics ,

the book feature s hy pothetical scenarios (or sum maries

of actual case fac ts) to illuminate the applicable rules a nd

teachings, i n a manner similar to what is found in t he vari-

ous Restatements of L aw. The book is also populated wit h

“Practice Pointers ,” which h ighlight practical aspec ts of a

particul ar issue or caution agai nst hidden pitfalls. Again,

Berger’s core achievement is th e presentation of legal i nfor-

mation in a way that is usable and re al.

Berger and his cont ributors dig deep into sticky and

recurring c hallenges in cro ss-border litigation , including

service of proce ss on non-U.S. pa rties, obtaining dis covery

from non-U.S. p arties, a nd the varied treat ment of attorney-

client communic ations in non-U. S. jurisdic tions. On these

issues, Berger i ncludes a fulsome analysis of the Hag ue

Convention (both as it relates to se rvice of process a nd to

discovery), the Inter- American C onvention, and the elements

of a proper letter of request or le tters rogatory. Berger fol-

lows with a comprehensive disc ussion about determining the

best mechan ism for taking non- U.S. discovery in a part icu-

lar case, and i ncludes commentary on several jurisd ictions

The Brains and Brawn of

Cross-Border Disputes

Intern ational Aspects of U. S. Litigation, A Prac titioner's Deskbook is available at htt p://bit.ly/LN454-ber ger.

where cross-border dis-

covery might be most f re-

quent (e.g., France , United

Kingdom, Chi na, Japan).

In this rega rd, the book

meets its promise of b eing a “de skbook” for a lawyer’s use

as a practical tool.

The penultimat e section of the book covers state and fed-

eral arbitration law, with a focu s on the Federal Arbitration

Act, and includes s eparate discussions about proceed-

ings under the New York Convention and t he Panama

Convention. This se ction also includes content on how to

compel arbitration and the u se of judicial proceedings to

enforce an arbitration awa rd. Appropriately, the book does

not discuss the r ules and processes of the various ad minis-

trative arbitral groups , such as the ICC or ICSID, focusi ng

instead on the lega l and procedural paths to get to that point.

The nal se ction is devoted to thr ee common typ es of

international d isputes: lawsuits against sovereign entitie s,

cross-border bank ruptcy proceedings, and i nternational

trade claims. T his section focuses prim arily on the stat utes

that counsel involved in suc h disputes should know and

understand. A nd as with the other topics covered, this se c-

tion includes extens ive citation to the key legal dec isions and

commentary t hat explain how those statutes operate.

Any litigator involved in cros s-border disputes should

have Berger’s book handy. But it is essentia l for U.S. litigators

who need to understa nd the impact of U.S. procedures on

litigants residi ng elsewhere. Berger’s book may have its great-

est value in the hand s of non-U.S. law yers who nd their

non-U.S. cli ents litigating in U.S. cour ts. That lawyer now

has a reference guide for p otentially confusing (and arguably

arcane) concepts in fe deral court jurisdiction and pro cedure,

choice of law, discovery, and alternative di spute resolution,

among numerous other topics . The book offers a primer on

the basics of these le gal issues, but also delves into aspect s

that might be enti rely new to a non-U.S. litigator, such as

abstention, comit y, and t he methods of and limitations on

enforcing a judgment.

Berger has enl isted high-qu ality and exp erienced contrib -

utors to create a rare nd: A n immediate and comprehensive

resource for real-world inter national litigation matters. And

one that can sit on a bookshel f within an arm’s reach, rather

than exist on ly as a computer shortcut icon. For cro ss-bor-

der litigators who want a reference g uide that might obvi-

ate the need and cost of hour s of online searching, Berger ’s

book should be at the top of the lis t.

By Daniel P. Elms, Litigation N ews Managing Editor

30 | SEC TION OF LITIGATION