Transnational litigation: is there a "field"? A tribute to Hal Maier.

• Author: Silberman, Linda
• Position: Testimonial

I was pleased to be asked to offer a few words in honor of my friend, Professor Hal Maier, on the occasion of his retirement from Vanderbilt University Law School. I owe a particular debt of gratitude to Hal, not only because he has been a wonderful friend and colleague over the years, but also because he sparked my interest in a field to which I had only recently turned when we first met and one that now absorbs much of my time and attention. The "field"--if it can be characterized as such--is "international litigation" or "transnational litigation," (1) and that reference itself raises the interesting question whether international civil litigation does in fact occupy a distinct field. I was recently asked to participate in a panel discussion on that question next spring at the American Society of International Law and was instantly reminded of early conversations that I had with Hal Maier in the mid-1980s on that subject.

I first met Hal around 1984. At the time, I was primarily a teacher of civil procedure and conflict of laws; Hal taught not only conflict of laws but also public international law, foreign relations law, and a course entitled "International Civil Litigation." He was among the first to develop such a course, and he had assembled materials out of which to teach it since at the time there was no casebook on the subject. His materials, which he shared with me when I taught a course in International Litigation for the University of San Diego's 1988 summer program in London, covered judicial jurisdiction, choice of law, choice of forum, enforcement of judgments, sovereign immunity, act of state, and transnational discovery. And although at the time, those materials did not include overarching themes or linkages, even at that early stage Hal viewed this material as more than a mere assembling of topics. Rather, he had a vision of transnational litigation as a discrete field that blurred the traditional lines between public and private international law, (2) that looked comparatively at how various countries dealt with cross-border litigation, and that gave definition to the increasingly global perspective from which a transnational litigator views a case.

Within a few years, casebooks with "International Litigation" in their titles came onto the scene. The first of these was Gary Born's International Civil Litigation in United States Courts (originally Born & Westin and now in its third edition), (3) followed later by my NYU colleague Andy Lowenfeld's International Litigation and Arbitration (also now in its third edition) (4) and thereafter by Russell Weintraub's International Litigation and Arbitration: Practice and Planning (now in its second edition). (5) Other books and treatises followed. (6) In addition, the American Law Institute's 1987 revision of the Restatement of the Foreign Relations Law of the United States (1965) offered in Part IV a conceptual framework for the "field" of transnational litigation. (7) The Introductory Note to Part IV refers to its objective as concern with "the reach and application of domestic law in circumstances implicating the interests of other states, and with cooperation and conflict of states in the application of domestic law." (8) Jurisdiction to prescribe and jurisdiction to enforce, along with jurisdictional immunities and the act of state doctrine, had been dealt with in the earlier Restatement, but the new Restatement Third not only added specific topics such as jurisdiction to adjudicate, enforcement of foreign judgments and arbitral awards, and international judicial assistance, but also perceived the topics as connected and provided links to their interrelationships. The Restatement Third has primarily a United States perspective on these matters, but the Comments and Reporters' Notes situate the "black letter" rules within a larger transnational and comparative context.

Although these developments suggested an emerging field of transnational litigation, Professor Steve Burbank, in an early review of the first edition of the Born & Westin text, posited that international civil litigation was less a discrete field than it was part of a "process of cross-fertilization." (9) He suggested that doctrine developed in domestic cases was brought to bear in international cases, and variations and alterations necessitated by the international context were then transferred back to domestic cases. If one proceeds topic by topic, there is much to what Burbank claims. But his observation, accurate to a point, fails to capture a larger picture. Since his comments almost fifteen years ago, much has happened. The enhancement of free trade in a global economy coincident with technological advances has created a transnational legal order for corporations, individuals, and their lawyers. Professor Samuel Baumgartner, in a recent article, "Is Transnational Litigation Different?," (10) answers his own question with a definitive "Yes." Because there is important interplay between transnational actors and lawmakers in different countries when litigation is cross-border, he argues that systemic attention needs to be directed to the subject. I would agree. My own experience teaching, writing, and litigating in this area convinces me that international/transnational litigation is an interconnected whole and a field that, when studied and analyzed as such, merits autonomous treatment.

The characterization of transnational litigation as a field has no quarrel with the observation that much of its content is derived from the domestic law of civil procedure, conflict of laws, international sales, economic and trade law, and public international law. Nor does it deny the influence of domestic law on international cases and vice-versa. Moreover, a "field" is not necessarily in need of a "big think" unifying theory. A pragmatic definition of field is marked by the efforts of lawyers, academics, and judges who view the landscape of litigation as extending beyond their own borders and in relation to rules and values elsewhere. (11) And the sense of field is enhanced by recent Supreme Court decisions on issues of transnational litigation informed by an awareness of the rules, interests, and values of other countries. (12) In sum, transnational litigation has become a field because the discrete pieces can only be understood in relation to each other and to the whole and because international and comparative perspectives shape and influence the development of rules at the national and regional level. (13)

On a less abstract level, lawyers who handle transnational cases certainly see themselves as operating in a distinct field. They give advice to clients about options in various legal systems, and they have an understanding about the comparative advantages and disadvantages of various systems. They understand how a case will be shaped in any one of a number of fora and consider strategic steps available...