Document Type

Article

Publication Date

Winter 2023

First Page

1

Volume

31

Issue

1

Source Publication Abbreviation

Tulane Journal of International & Comparative Law

Abstract

Despite vast harmonization across many areas of private international law, approaches to transnational jurisdiction have proved resistant to harmonization. For example, the Choice of Court Convention started as large-scale attempt to unify transnational jurisdiction rules and enforcement of judgments and ended up with a significantly limited scope focused on forum selection clauses. During negotiations, deep rifts between the United States and EU delegates unearthed an unwillingness by the United States to forego common law discretionary jurisdiction doctrines such as forum non conveniens and anti-suit injunctions, and a refusal to allow such doctrines by the EU. Other examples are the European Court of Justice’s (ECJ) repeated interpretations of Brussels instruments regarding jurisdiction to strictly prohibit the United Kingdom’s use of discretionary jurisdiction doctrines. The difficulty in harmonizing civil law and common law approaches to jurisdiction in transnational cases can be explained by looking at different essential components underlying the rules in the two traditions.

These doctrines developed in the common law to ensure that litigants receive equitable fact-specific justice from judges, while the civil law rejection of them is tied to a rejection of unpredictable and overt judicial power over litigants untethered by statutory mandates. This Article explores a new comparative law methodology focused on the essential components underlying legal rules in different systems. With transnational jurisdiction rules, the common law rules are tied to flexibility and fact-specific justice, while the civil law rejection of those rules are rooted in predictability as a protection for litigants. The incompatibility between these underlying essential components stymied harmonizing of transnational jurisdiction rules.

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