Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS: COMMENTARY AND MATERIALS
INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS: Commentary and Materials by Gary B. Born with David Westin. Kluwer, Deventer (1989, xxv and 646 pp., plus 79 pp. Appendices and 10 pp. Index). Hardback £54.
The introduction promises a book on what is described by the authors as being an emerging area of U.S. law, that of international civil litigation. However, to English lawyers the subject-matter of the book is familiar, since it mainly deals with aspects of what we would call the conflict of laws. There are, for example, sections on jurisdiction to adjudicate, agreements on jurisdiction and forum non conveniens, service of a writ and taking evidence abroad, sovereign immunity and the act of state doctrine, recognition and enforcement of foreign judgments—all of which topics can be found in Dicey & Morris on the Conflict of Laws. Of course, American conflict of laws has traditionally been preoccupied with interstate conflicts and has never dealt with those international topics straddling the boundaries of public and private international law, such as sovereign immunity and the act of state doctrine, which are fully covered by Born and Westin in this book. What is novel about the book to English eyes is not so much what it groups together but what it omits. It takes only the commercial part of conflict of laws and, even with this, does not deal with the vital question of what law the court will apply once it has decided that it will try a case. Given that the book, including appendices, stretches to 736 pages, it is not surprising that the authors have omitted any discussion of choice of law. This highly selective approach does have the merit of emphasizing the tremendous growth in the law on jurisdiction in the United States, as in England, over the past few years. By contrast, choice of law has gone quiet. However, it does have the disadvantage that the reader is not given an overview of the complete range of legal problems arising out of an international commercial dispute.
The format of the book bears witness to the authors’ desire to attract both the practitioner and the student. This is a commentary and materials book, with roughly equal weight attached to each. The U.S. practitioner will no doubt appreciate the clear concise commentary, complete with extensive footnotes, at the beginning of each section and the notes following each case. The practitioner will also no doubt appreciate the detailed coverage given to such procedural topics as service of the writ abroad under the Hague Convention and the taking of evidence abroad. The U.S. law teacher who wants a source book to be used as a teaching aid will no doubt appreciate the lengthy extracts from what are mainly recent cases, and the probing questions posed by the authors in the notes following each case. But how useful is this book to an English lawyer?
The English practitioner who is thinking of instituting proceedings in the United States, or who is concerned about whether his client is subject to the jurisdiction of courts in the U.S., or whether American anti-trust laws will be applied extra-territorially, will find much useful information in this book. However, he will not find information on admiralty jurisdiction or, as has already been noted, on what law the U.S. courts will apply once they have taken jurisdiction. The English academic will also find much of interest here. The fact that the book is concerned with international rather than interstate conflict of laws makes it particularly valuable for comparative study. Now that the emphasis in the English conflict of laws is on the jurisdictional rather than the choice of law stage of the action, it is particularly appropriate to look at U.S. developments in this area. Born and Westin’s book is rich in recent U.S. case law. There is much that English lawyers can learn from the sophisticated approach adopted in some of these U.S. cases, for example in those involving jurisdiction over foreign companies. It is instructive, too, to see English developments such as our accession to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, the case law involving Laker Airways, and the Protection of Trading Interests Act 1980 as viewed by American courts and commentators. In conclusion, this is a book which
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