Stephen B. Burbank

Federalism and Private International Law: Implementing the Hague Choice of Court Convention in the United States

Federalism is important in the United States. It is also important that the United States be able to participate effectively in a global economy and that those charged with the conduct of the countrys foreign affairs be able to make, and that the country abide by, international agreements that are designed to facilitate transnational commercial activity. The Hague Choice of Court Convention is one such agreement, the modest fruits of more than a decade of work in an international lawmaking effort that was initiated by the United States. However modest the fruits of the enterprise, the rest of the world is watching to see whether the United States ratifies, and how it implements, the Hague Convention. Effective dispute resolution processes are critical to a well-functioning global economy, and effectiveness for this purpose requires, just as it does for a national or regional economy, generous recognition and enforcement of judgments. Key to such generosity, in turn, are acceptable jurisdiction standards and, experience has demonstrated, reciprocity. Finally, mutual assurance that reciprocity will in fact be forthcoming requires very considerable uniformity and certainty in the governing legal rules. The Hague Convention leaves little room for variation or departure in standards for asserting jurisdiction or recognizing and enforcing judgments. Although there are good reasons to implement the treaty through legislation, the proposal that the uniform state law process be used for that purpose is not well considered. The history of domestic regulation does not provide strong normative support for state law to furnish the rules for jurisdiction and judgment recognition in international cases. Harmonization with abutting or intersecting state law norms, which is a legitimate concern in thinking about international private lawmaking on many subjects, is not generally a concern in connection with the law governing jurisdiction and judgment recognition. The Hague Convention appears to be an exception to that generalization with respect to jurisdiction, because choice of court clauses implicate contract law. Experience in the arbitration field suggests, however, that an attempt to harmonize would be a mistake, and the relevant state contract law is in any event underdeveloped and not uniform. Finally, federal implementation through legislation prescribing federal law that is mostly uniform, but a few provisions of which may borrow designated state law, would impose lower transaction and administrability costs, with no loss of accessibility, than would state implementation.

Hold the Corks: A Comment on Paul Carrington's "Substance" and "Procedure" in the Rules Enabling Act

This problem at first approach seems difficult. The Advisory Committee found very little difficulty with it. It is astonishing how many decisions there are in the Supreme Court and the other courts which define the difference between procedure, on the one hand, and substantive rights, on the other. William D. Mitchell, Chairman of the original Advisory Committee, to the participants in the Cleveland Institute on the Federal Rules (1938).