Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - INTERNATIONAL COMMERCIAL LITIGATION
INTERNATIONAL COMMERCIAL LITIGATION by Stephen Cromie and William Park, Linklaters & Paines. Butterworths, London (1990, xxxvi and 529 pp., plus 37 pp. Appendices and 18 pp. Index). Hardback £120.
This book offers a guide to the substance and procedure of litigation in a number of jurisdictions in which the commercial practitioner might be at risk of finding himself or herself conducting litigation. Within its modest length the book covers England and Wales (but not Scotland), France, (West) Germany, Australia, Canada, Japan, Switzerland and the United States. It is inevitable that the most that can be hoped for is that there will not be too misleadingly abbreviated a summary of this vast topic for each of the eight countries, four of which are complicated by the fact that they are federal units. By and large this goal seems to have been approximately attained. But that is about the limit of the enterprise.
Despite its extraordinary price, this book cannot be more than a source book for the practitioner who wishes to have a quick answer to the question whether (say) there are jury trials in Swiss courts, or discovery in aid of Japanese proceedings. It cannot possibly be imagined that the level of detail into which the book goes will be sufficient for anyone seriously confronted by questions of choice of forum. To suppose that, for example, the eight pages on the jurisdictional rules of the courts of the United States, both federal and state, is any more than a headnote is impossible; and if it is true to say that such an account is only as good as its footnotes, it has to be said that these are pretty paltry as well.
The editors/authors seem to have requested their foreign correspondents to provide information within the different chapter headings according to a preordained set of headings. This has advantages, in that the passages are written (presumably) by someone who is a native practitioner, and there is a certain pattern to each section, allowing the equivalent passage to be easily extracted and compared with its fellow for another jurisdiction. Even so, some are easier than others. By and large the Australian passages are the most detailed of the foreign ones; and the Japanese the most brief. The easy fluency of the German sections is a joy to read; by contrast, the curiously unnaturalized English of the French sections is not always easy on the mind. The advantages claimed by the editors/authors for having left these foreign contributions in their foreign form (p. vii) are surely overstated. Nor is it clear that the editorship was elsewhere always as remorseless as it should have been within these parameters: the plural form of the notary public appears in three different varieties. Surely someone should have picked up this kind of discrepancy.
Substantive errors are not gross and, as often as not, are only errors in the sense that one may not agree with a prediction about how the law will duly be declared. Even so, it is hard to believe that a clause in a contract conferring exclusive jurisdiction upon the courts of (say) New York is ineffective if the defendant is domiciled in a Contracting State to the Brussels Convention, and sued in the place of his domicile. More plainly incorrect is the assertion at p. 15 that “jurisdiction clauses in leases will generally be of no effect, except where a non-contracting state domiciliary is involved”. Had the reference been instead to land in a Non-Contracting State, this might have been so. But exclusive jurisdiction within Art. 16(1) is regardless of domicile. Elsewhere it is asserted that the Protection of Trading Interests Act 1980 is unlikely to apply to judgments of any Contracting State. Why not? If because judgment for multiple damages are not given in these states (or any of them), perhaps. But as an articulation of a rule of public policy, coinciding, as it happens, with the public policies of France and Germany, Art. 27(1) seems to permit its operation.
There are omissions which startle. For instance, this reviewer could find no mention of the rules which relate to the participation of lawyers qualified in one EEC country in proceedings in the courts of another. So we know whether a Cologne-admitted lawyer may appear in Dusseldorf, but not whether a London barrister may. Given that there is European and
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