belief is not that a more modest focus on jurisdiction makes reform easy. But jurisdiction still may be the path of least resistance to reform within private international law In this great need for and relative feasibility of jurisdictional reform lies the defensible reason that the U.s. Supreme Court and international negotiators have focused so much attention on the subject. Moreover, jurisdiction could be the key that unlocks the door to a better world order and justice. Given agreement on territorial jurisdiction, coordination regarding recognition and enforcement of the resultant judgments is readily achievable. Even agreements on judicial cooperation on service and evidence become more likely, once countries are assured that only courts exercising appropriate jurisdiction can request such assistance I do concede that even feasible reform occurs only when truly need-driven, no matter how much academics desire and preach reform. But I contend that public and private needs for jurisdictional reform(and not just in specialized areas)are very real. The failure to recognize these needs--not the absence of needs--has resulted in the current dearth of treaties on the subject, as well as in the lack of federalization of the law in the united states C Nonjurisdictional Harmonization Remains Unlikely The reader who did not buy into the above-quoted idea of fostering "the national might still be struggling with this nagging question: Why pursue a jurisdictional agreement, which will not be easy to reach, rather than follow the alternative and more direct path of harmonizing the laws of different nations? Indeed, article 65(b)&(c)of the Treaty Establishing the European Community may envisage harmonizing the choice-of-law rules or civil-procedure systems of the member states.3 7 More widely, we could seek to harmonize laws across European and U.S procedural systems, whether for the possible efficiency of similarity when national judiciaries interact, for actual improvements within various nations' procedure, or even for complete effectuation of harmonized substantive law.38 Such harmonization could come either by voluntarily borrowing of transplants or by mutual agreement between systems. t Let us consider these two First, actual transplantingas opposed to the mere seeking of inspiration abroad for locally s6C. Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 HASTINGS L.J. 1613(2003)(arguing that urisdiction is not inherently different from the merits) 37See supra note 11; cf. Paul R. Beaumont, Private International Law of the European Union( May 2004) (manuscript on file with author)(taking a narrow view of art. 65 ). See generally Kevin M. Clermont, Foreword: Why Comparative Civil Procedure?, in KUO-CHANG HUANG, INTRODUCING DISCOVERY INTO CIVIL LA W at ix(2003). 39See ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 21-30,95-101,107-18(2d ed 1993); see also Alan Watson, Legal Transplants and European Private Law, in THE CONTRIBUTION OF MIXED LEGAL SYSTEMS TO EUROPEAN PRIVATE LAW 15 (Jan Smits ed, 2001)(responding to Legrand). But see Pierre Legrand The Impossibility of "Legal Transplan ts, "4 MAASTRICHT J. EUR. CoMP L. 111(1997) s See Konstantinos D. Kerameus, Procedural Unification: The Need and the Lim itations, in INTERNATIONAL PERSPECTIVES ON CIVIL JUSTICE 47(IR. Scott ed. 1990)
10 36Cf. Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 HASTINGS L.J. 1613 (2003) (arguing that jurisdiction is not inherently different from the merits). 37See supra note 11; cf. Paul R. Beaumont, Private International Law of the European Union (May 2004) (manuscript on file with author) (taking a narrow view of art. 65). 38See generally Kevin M. Clermont, Foreword: Why Comparative Civil Procedure?, in KUO-CHANG HUANG, INTRODUCING DISCOVERY INTO CIVIL LAW at ix (2003). 39See ALAN WATSON, LEGA L TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW 21-30, 95-101, 107-18 (2d ed. 1993); see also Alan Watson, Legal Transplants and European Private Law, in THE CONTRIBUTION O F MIXED LEGAL SYSTEMS TO EUROPEAN PRIVATE LAW 15 (Jan Smits ed., 2001) (responding to Legrand). But see Pierre Legrand, The Impossibility of “Legal Transplants,” 4 MAASTRICHT J. EUR. & COMP. L. 111 (1997). 40See Konstantinos D. Kerameus, Procedural Unification: The Need and the Limitations, in INTERNATIONAL PERSPECTIVES ON CIVIL JUSTICE 47 (I.R. Scott ed., 1990). belief is not that a more modest focus on jurisdiction makes reform easy.36 But jurisdiction still may be the path of least resistance to reform within private international law. In this great need for and relative feasibility of jurisdictional reform lies the defensible reason that the U.S. Supreme Court and international negotiators have focused so much attention on the subject. Moreover, jurisdiction could be the key that unlocks the door to a better world order and justice. Given agreement on territorial jurisdiction, coordination regarding recognition and enforcement of the resultant judgments is readily achievable. Even agreements on judicial cooperation on service and evidence become more likely, once countries are assured that only courts exercising appropriate jurisdiction can request such assistance. I do concede that even feasible reform occurs only when truly need-driven, no matter how much academics desire and preach reform. But I contend that public and private needs for jurisdictional reform (and not just in specialized areas) are very real. The failure to recognize these needs—not the absence of needs—has resulted in the current dearth of treaties on the subject, as well as in the lack of federalization of the law in the United States. C. Nonjurisdictional Harmonization Remains Unlikely The reader who did not buy into the above-quoted idea of fostering “the national genius” might still be struggling with this nagging question: Why pursue a jurisdictional agreement, which will not be easy to reach, rather than follow the alternative and more direct path of harmonizing the laws of different nations? Indeed, article 65(b) & (c) of the Treaty Establishing the European Community may envisage harmonizing the choice-of-law rules or civil-procedure systems of the member states.37 More widely, we could seek to harmonize laws across European and U.S. procedural systems, whether for the possible efficiency of similarity when national judiciaries interact, for actual improvements within various nations’ procedure, or even for complete effectuation of harmonized substantive law.38 Such harmonization could come either by voluntarily borrowing of transplants39 or by mutual agreement between systems.40 Let us consider these two routes. First, actual transplanting—as opposed to the mere seeking of inspiration abroad for locally
generated reform--is not common within the realm of procedure. Transplants that impinge on the system's organizing principles or constitutional norms are obviously impractical. But even less intrusive transplants of foreign devices are problematic. The reason is that procedure is a field especially marked by the interrelatedness of its parts and its inseparability from the local institutional structure. Also, although it is a technical subject, procedure is surprisingly culture-bound, subtly reflecting the fundamental values, sensibilities, and beliefs of the society. All this is not to say that transplants are impossible. Indeed, I have elsewhere suggested fo the United States a procedural transplant within the realm of lis pendens. But such transplants 4See George A. Bermann, The Discipline of Comparative Law in the United States, in L'AVENIR DU DROIT COMPARE 305, 307(Societe de legislation Comp aree 2000); John A Jolowicz, On the Comparison of Procedures, in LAW AND JUSTICE IN A MULTISTATE WORLD 721, 724-25 (James A R Nafziger Simeon C Symeonides eds, 2002) See Stephen Goldstein, The Proposed ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure The Utility of Such a Harmonization Project, 6 UNIFORM L REV.(ns )789, 791, 793-94(2001). (1960). 43see benjamin kaplan, Civil Procedure-Reflections on the Comparis on ofSystems,9BUFFLREV.409,422 Possibilities of lifting pieces from a foreign system and incorporating them in the domestic must be approached with a sense of the interdependencies, the syndromes, so to speak, within the ystem a quo and the system ad quem. This is not to say that it is no use trying to import mechanisms for domestic use unless the foreign system is brought over entire. For some procedural devices can stand up pretty well in iso lation from the rest of the system. I put as possible examples the special dunningand documentary processes successfully employed in many cases in Germany.. Consider the feasibility of introducing here the German practice of having witnesses give their testimony in narrative, followed by interrogation by the court; this to be followed in turn by interrogation in our conventional way by counsel for both sides. This may seem a simple change that could be commended n various imaginable grounds, but I would ask you to reflect on whether it could be effectively or safely engrafted on our present system without other profound changes See also Konstanze Plett, Civil Justice and Its Reform in West Germany and the United States, 13 JUST. SYS.J. 186 (1989); John C. Reitz, Why We Probably Cannot Adopt the German Advantage in Civil Procedure, 75 lOwA L REv. 987(1990) See Mirjan Damaska, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 AM.J. COMP L 839(1997); John H. Langbein, The Influence of Comparative Procedure in the United States,43AM.J.CoMP.L.545,551-53(1995) 4See Oscar G. Chase, American"Exceptionalism"and Comparative Procedure, 50 AM J COMP L. 277 (2002) See Stephen Goldstein, The Odd Couple: Common Law Procedure and Civilian Substantive Law, 78 TUL L REv. 291(2003)(examining mixed jurisdictions); Jolowicz, supra note 41, at 722-24 (discussing, inter alia, Greek and Japanese procedure); Andreas F. Lowenfeld, Introduction: The Elements of Procedure: Are They separately Portable?, 45 AM. J COMP L. 649(1997) Kevin M. Clermont Kuo-Chang Huang, Converting the Draft Hague Treaty into Domestic Jurisdictional Law, in A GLOB AL LAW OF JURISDICTION AND JUDGMENTS, supra note 22, at 191, 226-28(arguing for U.S. adoption of European lis pendens doctrine); see ALl, INTERN ATIONAL JURISDICT ION AND JUDGMENTS PROJECT S 1l (Tentative Draft 2004)(presenting a similar proposal); see also, e. g, Stephan Landsman, Reforming Adversary Procedure: A Proposal Concerning the Psychology of Memory and the Testimony of Disinterested Witnesses, 45 U. PITT. L REV. 547(1984)
11 41See George A. Bermann, The Discipline of Comparative Law in the United States, in L’AV EN IR D U DROIT COMPARÉ 305, 307 (Société de Législation Comparée 2000); John A. Jolowicz, On the Comparison of Procedures, in LAW AND JUSTICE IN A MULTISTATE WORLD 721, 724-25 (James A.R. Nafziger & Simeon C. Symeonides eds., 2002). 42See Stephen Goldstein, The Proposed ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure: The Utility of Such a Harmonization Project, 6 UN IF ORM L. REV. (n.s.) 789, 791, 793-94 (2001). 43See Benjamin Kaplan, Civil Procedure—Reflections on the Comparison of Systems, 9 BUFF. L.REV. 409, 422 (1960): Possibilities of lifting pieces from a foreign system and incorporating them in the domestic must be approached with a sense of the interdependencies, the syndromes, so to speak, within the system a quo and the system ad quem. This is not to say that it is no use trying to import mechanisms for domestic use unless the foreign system is brought over entire. For some procedural devices can stand up pretty well in isolation from the rest of the system. I put as possible examples the special ‘dunning’ and documentary processes successfully employed in many cases in Germany. . . . Consider the feasibility of introducing here the German practice of having witnesses give their testimony in narrative, followed by interrogation by the court; this to be followed in turn by interrogation in our conventional way by counsel for both sides. This may seem a simple change that could be commended on various imaginable grounds, but I would ask you to reflect on whether it could be effectively or safely engrafted on our present system without other profound changes. See also Konstanze Plett, Civil Justice and Its Reform in West Germany and the United States, 13 JUST. SY S. J. 186 (1989); John C. Reitz, Why We Probably Cannot Adopt the German Advantage in Civil Procedure, 75 IOWA L. REV. 987 (1990). 44See Mirjan Damaška, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 AM.J. COMP. L. 839 (1997); John H. Langbein, The Influence of Comparative Procedure in the United States, 43 AM. J. COMP. L. 545, 551-53 (1995). 45See Oscar G. Chase, American “Exceptionalism” and Comparative Procedure, 50 AM. J. COMP. L. 277 (2002). 46See Stephen Goldstein, The Odd Couple: Common Law Procedure and Civilian Substantive Law, 78 TUL. L. REV. 291 (2003) (examining mixed jurisdictions); Jolowicz, supra note 41, at 722-24 (discussing, inter alia, Greek and Japanese procedure); Andreas F. Lowenfeld, Introduction: The Elements of Procedure: Are They Separately Portable?, 45 AM. J. COMP. L. 649 (1997). 47Kevin M. Clermont & Kuo-Chang Huang, Converting the Draft Hague Treaty into Domestic Jurisdictional Law, in A GLOBAL LAW OF JURISDICTION AND JUDGM ENTS, supra note 22, at 191, 226-28 (arguing for U.S. adoption of European lis pendens doctrine); see ALI, INTERN ATIONAL JURISDICTION AND JUDGM ENTS PROJECT § 11 (Tentative Draft 2004) (presenting a similar proposal); see also, e.g., Stephan Landsman, Reforming Adversary Procedure: A Proposal Concerning the Psychology of Memory and the Testimony of Disinterested Witnesses, 45 U. PITT. L. REV. 547 (1984) generated reform—is not common within the realm of procedure.41 Transplants that impinge on the system’s organizing principles or constitutional norms are obviously impractical.42 But even less intrusive transplants of foreign devices are problematic.43 The reason is that procedure is a field especially marked by the interrelatedness of its parts and its inseparability from the local institutional structure.44 Also, although it is a technical subject, procedure is surprisingly culture-bound, subtly reflecting the fundamental values, sensibilities, and beliefs of the society.45 All this is not to say that transplants are impossible.46 Indeed, I have elsewhere suggested for the United States a procedural transplant within the realm of lis pendens.47 But such transplants