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Melbourne University Law Review |
CATHERINE KESSEDJIAN[∗]
[Today’s complex international society calls for a fresh approach to transnational dispute resolution. The first part of the article focuses on the changing nature of disputes around the world and the lessons to be learned from other countries’ approaches to litigation. Specifically, this part discusses the need to address collective or group interests in private litigation. It also explores the consequent need to find ways of representing the public interest in private and especially arbitral disputes, perhaps through the means of an amicus curiae system. The second part of the article addresses the necessity for cross-border cooperation. In a globalised world, there is a strong need to develop new principles and rules to govern cross-border judicial assistance. This article looks at examples of such cooperation which already exist, and discusses the prospects for improving cooperation through networks of government authorities and judges, cooperation between judges and the arbitral process, and court-to-court cooperation in such areas as the grant of provisional measures, the taking of evidence, and the administration of bankruptcy proceedings.]
CONTENTS
Thirty years ago, at least in French universities, international law classes dealt with only a few procedural mechanisms: the International Court of Justice in classes on public international law, and jurisdiction and judgments in classes on private international law. Law professors were not interested in dispute resolution and devoted most of their lectures to substantive issues. International commercial arbitration was not taught as such. The International Criminal Court did not exist, and, although its establishment had been foreseen by the founders of the Charter of the United Nations, it was unlikely to be instituted soon. The International Centre for Settlement of Investment Disputes (‘ICSID’) was still a very young, dormant institution.[1] In this procedural ‘quasi-desert’, the only well-functioning judicial institutions for private disputes were the European Court of Human Rights (‘ECHR’) and the European Court of Justice (‘ECJ’).[2]
Change came with the advent of globalisation and the increased movement of persons, entities and activities after the fall of the Berlin Wall. Today, disputes have a new character: not only do they involve more people than ever before, but they also involve people residing in, or entities established in, many different countries. In addition, instead of the large multinational corporations which, thirty years ago, made up the bulk of international disputes, nowadays small corporations and even individuals take part in international activities or are affected by such events, and hence become interested in transnational lawsuits.
At the same time, access to justice has become a fundamental right. The role of the legal norm is changing slowly. First, there is what is called the ‘contractualisation’ of the law. This is not an easy concept to grasp. In one of its senses, it means that the legal norm is less created by the nation-state than by private actors through party autonomy (again a controversial concept), by which actors have the right to regulate their own activities to an ever-increasing extent. Hence, states have less power to regulate activities a priori, in a preventive way. Regulation is more often left to the judge who acts a posteriori, after the activity has been performed and when a dispute has already arisen. Second, in civil or commercial tort actions, as well as in criminal prosecutions, victims play a growing role. Penal justice is no longer simply a bilateral battle between a prosecutor and a defendant. Victims have begun to act and claim financial reparation and civil damages. Sometimes, victims consider it more important to receive financial compensation than to gain the moral satisfaction of seeing the tortfeasor sanctioned penally. It is no coincidence that the Alien Tort Claims Act[3] was reborn in the United States in the early 1980s, giving rise to a large amount of litigation in the early 1990s.[4]
However, the increase in the need for justice by citizens has not translated into a proportional increase in the resources given to judicial systems in most countries. Hence, there is a growing disparity between, on the one hand, the right to access justice and the expansion in the number of disputes which judges have to resolve, and, on the other, the allocation of money to national judicial systems. One result of this is a phenomenon known as the ‘privatisation of justice’: states increasingly rely on alternative modes of dispute resolution, particularly arbitration, which is a true alternative to litigation.[5] However, given that arbitration is a private process, usually confidential, it is neither well known nor understood by the general public. It may also be questioned whether the rules created in the 20th century for purely commercial disputes are adequate to meet the evolving needs of the 21st century transnational society.
The ‘privatisation’ of justice is also one of the consequences of the ‘contractualisation’ of law. By that expression I mean that parties to a dispute now have more choices than they ever had before. Not only does party autonomy play an ever-increasing role in the substantive law which is applied to the dispute, but parties are also able to choose procedural rules. Traditionally, the privatisation process has materialised in the choice granted to parties between several different types of dispute resolution mechanisms. Arbitration (or similar mechanisms such as trade fairs in the Middle Ages) was first created as an alternative to court proceedings. Then, as arbitration became more procedurally technical, less rigid means were offered, such as conciliation or mediation,[6] or a combination of both resulting in the Med–Arb system or the mini-trial model.
Even more significant is the development of procedural rules specifically created for transnational disputes, which parties to those disputes may craft for themselves, or which apply by default in the absence of a specific choice made by the parties. This trend has also occurred in arbitration. In the last two decades or so, arbitration practice has created a set of procedural rules which are considered to be truly transnational, as they apply in many types of arbitration proceedings, whatever the nationality of the parties or of the arbitrators, and whatever the institution under the auspices of which the proceedings take place.[7] Moreover, a proposal for a code of procedural principles has been jointly adopted by the American Law Institute (‘ALI’) and the International Institute for the Unification of Private Law (‘UNIDROIT’).[8] Although this is quite a controversial endeavour,[9] it does illustrate that the privatisation of justice also has its foot in the door of the court.
Simultaneously, arbitration has become more aggressive and less consensual. It is very frequent nowadays that parties who have initially accepted an arbitration clause in an agreement will try to evade their obligation when an actual dispute arises, by trying to challenge the validity of the clause, or by claiming in court related issues which could be dealt with by the arbitration tribunal. Consequently, there are growing difficulties in arbitration, such as simultaneous proceedings before an arbitral tribunal and state courts. In addition, further jurisdictional challenges arise where courts with multiple tribunals in different countries are asked to resolve the same or related disputes.
Part II of this article will focus on the changing nature of disputes around the world and the lessons to be learned from other countries’ approaches to litigation.[10] For example, the class/group/collective action models will be further studied. This part also discusses the possible development of a new role for judges. In common law countries, there is room for judges to take a more active role in the management of cases and, in civil law countries, they could be less timid in crafting solutions for a changing society. Furthermore, the representation of interests other than those of the parties to the dispute themselves may have an increased importance as judicial solutions tend to replace a priori legal norms. The ever-diminishing vertical role of states, whose role as norm creator is increasingly challenged by other transnational actors, increases the importance of judges, since there must be a point at which the conflicting interests at stake are resolved. If the solution is not a priori, by preventive law-making, it has to be a posteriori, through dispute resolution mechanisms. Hence, there is an ever-increasing role for dispute resolution mechanisms in a rapidly changing and complex transnational society.
Part III will then discuss the need to develop a new approach to transnational dispute resolution. The solutions which sufficed 30 years ago are now totally inadequate to resolve the current issues and intricacies of international disputes, highlighting the strong need to develop new principles and rules to govern cross-border judicial cooperation. It is argued in this part that greater focus must in fact be placed on cross-border judicial cooperation than on assistance, in order to develop a more effective approach to transnational dispute resolution.[11]
There are two sets of developments which make it necessary to seek other means of rendering justice. First, the number of persons (be they individuals or companies) involved in cross-border disputes has grown tremendously. For example, one can reflect on the number of people affected by the 1990 invasion of Kuwait by Iraq; the number of people who may have a claim in what are known as ‘the dormant accounts’ in Swiss banks; or the number of civil suits for damages stemming out of the sale of a defective product. Second, a single action between two parties may affect many more people than those two parties themselves. Investment disputes are a typical example of this second trend.[12]
Beyond ad hoc mechanisms, which will be described briefly below, the main question is how domestic systems should adapt to cope with these new developments. In the first category of cases, the procedural answer may be to create something like a class action (aggregate litigation)[13] or a group action. In the second category, one of the possible answers would be to allow intervention by third parties, particularly via the amicus curiae system.[14]
The class action phenomenon started in common law countries, particularly in the United States.[15] It is not entirely clear why such an action became so popular and has been used so systematically in that particular country. It may have to do with the more litigious character of United States society; every citizen having in mind that it is a fundamental right to seek redress in court. Judges also play a more prominent role in defining social values in the United States than in many countries. Finally, the search for efficiency in the judicial process may also have been relevant.
In any case, it is now a given that 21st century society needs to organise mass claims in a different way than it did before, as such claims have become more and more frequent. Mass claims are not all similar, but they often stem from historical events such as the Second World War and the Holocaust, the first Gulf War and the invasion of Kuwait by Iraqi forces in 1990, the genocide in Rwanda in 1994, or the Yugoslav wars in the early 1990s. Some of these mass claims stem from international settlements, such as the property claims processed by the German foundation, Remembrance, Responsibility and the Future, which was established after a settlement was entered by an executive agreement between the United States and Germany[16] as a consequence of the court proceedings commenced in the United States against German companies by Holocaust victims or their heirs.[17] Some mass claims take the form of ad hoc arbitration tribunals such as the Iran–United States Claims Tribunal, created by the Algiers Accords in 1981[18] and having its seat at The Hague.[19] Other mass claims have taken the form of administrative tribunals, such as the United Nations Compensation Commission, created in the aftermath of the first Gulf War.[20]
Although these forms of dispute resolution are interesting, my aim is not to study them, but rather to analyse whether and how a form of collective action could be incorporated into national legal systems, so as to accommodate international mass claims which stem from either human rights violations or more traditional activities such as environmental harm, product liability, and the like.[21] In order to do so, this article will briefly explain which kinds of collective actions are known in civil law countries and the European Union (‘EU’). It then looks at the issues which may have to be resolved in order to accommodate such transnational mass claims in domestic courts without having to resort to the formation of additional ad hoc tribunals.
Mass claims have not been frequent in civil law countries because, in civil law, standing to sue has always been interpreted very strictly. Hence, any third party not represented in a trial would not be affected by the outcome of the case. This is not to say that group actions have been completely unknown in civil law countries.[22] First, it must be noted that in Portugal a ‘civil public action’ may be instituted by the Ministério Público (not by an individual or a group) in order to prosecute collective interests.[23] Recourse to such a public action is indeed a fundamental right. In order for such an action to be commenced there must be a social interest at stake. The judge must find that there is an ‘active legitimacy’.[24] That is, the judge must find that individually, claimants would not reach the same result or the action could not be instituted; that the trial would be just and fair; and that the effects of the decision would be the same for all persons who carry the same rights.[25] In Brazil, the Portuguese influence has imported a similar action. There, the civil public action will only dispose of the defendant’s liability,[26] and an individual decision for each plaintiff will be made on the quantum of damages.[27] Nowadays, there is a proposal for this type of action to be extended to a number of Latin American countries.[28]
Then, in countries such as France there is an action called ‘en représentation conjointe’ (joint representation), whereby each person who wishes to take part in a court action can sign a mandate so that they are represented before the tribunal. Nobody can enforce the issuing judgment against a person who has not signed such a mandate and hence has not been represented. Mutatis mutandis, it is the equivalent of a class action with an ‘opt in’ mechanism. The plaintiff in this kind of action is not a person but an association, duly accredited, which does not act in its own name but in the name of the victims themselves. Hence, the real parties to the proceedings are the victims and the judgment will bind them, not the association which is just acting as their representative. The action may commence as soon as at least two victims give the association the power to act, although in practice, an association will probably wait until a sufficient number of plaintiffs have signed a mandate before commencing an action. This type of action must be specifically authorised by law. Currently, such actions exist for consumer law,[29] for investors in financial markets and securities,[30] and for environmental protection.[31] These provisions demonstrate a strong public policy against encouraging the formation of mandates, so as to limit court proceedings. In environmental matters, it is even prohibited to advertise for such proceedings, while advertisement is only allowed in printed media for consumer and investment disputes.
This very timid attitude towards group actions in France may be explained by the fact that public interests are traditionally represented by the Ministère public, who is a representative of the state. Obviously, his role is much more prominent in criminal cases than in civil cases, but even in the latter context the Ministère public has a role in cases relating to état civil (civil status), the protection of children and other family matters. Additionally, he has standing to challenge the validity of a number of public acts such as marriages or patents, or to request the dissolution of associations.[32] In economic matters, such as competition, he plays an important role and may act to obtain provisional measures or order the cessation of an illicit activity.[33] It is doubtful, however, whether he may act to request damages for the victims of such illicit acts. In bankruptcy, he may
request that a corporation be wound up, and is also involved in the verification of mandataires (the special profession in charge of the management of bankrupt companies).[34]
Apart from the Ministère public, a number of institutions are granted the power to act to protect collective interests. Trade unions are allowed to act before any relevant court to protect the collective interests of the profession they represent, and may claim damages.[35] No other law grants a similar power to associations to protect the collective interests for which they have been formed. As some authors have noted, some civil courts have nevertheless granted associations the power to act on the basis that a collective right exists when one takes in the sum of the individual rights of the members.[36] However, this practice may be considered against the law.
Finally, French positive law grants the protection of collective interests to administrative authorities (‘autorités de régulation’) such as the Conseil des Marchés Financiers (‘CMF’, formerly the Conseil des Opérations de Bourse) or the Conseil de la Concurrence — the equivalent of the Securities and Exchange Commission or the Competition Council.[37]
De lege ferenda, in early 2005, the French Ministry of Justice launched a working group to study the feasibility of a true class action, but ‘à la française’! The chances of success are difficult to assess since a number of lobby groups, mainly coming from industry, have argued against such a development, even though President Chirac has mentioned group actions as one of his 2005 wishes for the French people! A report should be ready by the end of 2005, after which a proposed bill may be drafted.[38]
In my opinion, the following issue must be resolved before a class action can be introduced into any legal or judicial system, namely the respective advantages and inconveniences of deciding together a number of similar claims for the claimants, the defendants, the judicial system and the law itself. Given the nature and costs of an individual claim, it may not otherwise be feasible for claimants to bring an action before a court or tribunal without recourse to a class action. Hence, the fundamental right of access to justice would not be respected if the claims could not be aggregated. As far as the defendants are concerned, a well-managed class action may be a considerable advantage in time, effort and resources of all sorts. Facing a class action does have a deterrent effect: it can be a strong incentive for defendants to comply with better quality control of their products, or better adherence to their ethical charters. Nevertheless, abuses must be avoided and prevented, and the balance between the claimants’ and defendants’ rights must be carefully weighed.
Turning to the judicial organisation of a country, it is clear that the budgets of the ministries of justice around the world have not matched the exponential increase in the needs created by the new right of access to justice granted to citizens. Hence, class actions may well represent one of the most efficient ways to spend scarce public money. Finally, there is a strong advantage for the law itself. Indeed, instead of facing a multitude of decisions, with the possibility that some of them may be inconsistent, a class action decision has the merit of being unique and having a preclusive effect on many additional potential claims. One may hope that such a decision has the power to settle the law for some time. Ideally though, class actions should be an innovation made at the level of European law.
In the EU, the only action which may have an indirect similarity to a class action is the claim for an injunction for the protection of consumers’ interests.[39] However, this is different from a ‘real’ class action, as the Directive on Injunctions allows associations accredited in one member state to sue in another member state under numerous directives protecting consumers.[40] Member states must therefore file with the European Commission a list of accredited bodies, which is published in the Official Journal.[41] All of these bodies enjoy a right of access to courts in any member state, so long as the cause of action originated in that state, irrespective of the location of the consumers.[42] In other words, the Directive on Injunctions requires any court or administrative body in the member states to accept the published list as proof of the legal capacity of the qualified entity. Nonetheless, the court or administrative body seized may still examine whether the purpose of the qualified entity justifies its taking action in a specific case.[43] This brief description shows that the purpose of the Directive on Injunctions is quite limited.
This state of affairs in European law raises the question of whether it would be beneficial to litigants in Europe, within the framework of the internal market, to create a true class action. In order to answer that question, one has to first examine the competence of the European Community to do so. Without such competence, even if one would think it to be in the best interest of European citizens, such a development would be impossible. One has to turn to art 65 of the treaty establishing the European Community[44] to find out whether the European Community has the competence. The first condition for a Community act is that it must be necessary for the functioning of the internal market. This condition is met when one considers that the ECJ has stated that court proceedings should not be used in member states to increase unfair competition among companies.[45] One may indeed wonder whether the fact that a class action exists in one member state and not in another may trigger unfair competition consequences in the internal market. The second condition is that the matters in which the Community wants to act must ‘have cross-border implications’. This is a more difficult condition to meet. Indeed, it may be argued that, with the increase in cross-border economic activity, many foreseeable class actions will involve either one or several defendants established in different member states or claimants scattered across more than one member state. However, the usefulness of creating a class action is clearly not only for purely European cases but also for domestic ones. Considering this difficulty and the fact that some member states have become very timid in their proposals for new Community acts, it is unlikely that a European class action will be instituted in the foreseeable future. This is particularly so when one considers the Hague Programme,[46] which makes no reference to such a possibility. Consequently, there is room for improvement on this front.
The use of the amicus curiae mechanism is a fascinating development in recent years in judicial processes around the world. It is unnecessary to review all the existing domestic systems as they are too numerous. Rather, this article will discuss two contrasting domestic systems, namely the United States and France; the proposed ALI/UNIDROIT Principles and Rules;[47] and a potential rule before arbitration tribunals.
In addition, one must note that an amicus curiae system already exists before the ECHR and the ECJ. In competition matters, the system has also been introduced in proceedings before the European Commission.[48] Council Regulation (EC) No 1/2003, which has reformed the procedural aspects of competition control and sanction under arts 81 and 82 of the Consolidated EC Treaty, includes an article which provides:
If the Commission considers it necessary, it may also hear other natural or legal persons. Applications to be heard on the part of such persons shall, where they show a sufficient interest, be granted. The competition authorities of the Member States may also ask the Commission to hear other natural or legal persons.[49]
The provision is quite succinct, but it proves the importance for the European competition authorities of hearing all relevant interests before deciding a case, as the decision to be rendered will have an impact on the market and thus affect its many actors. Although the intervention must be approved by the European Commission, the precondition of ‘sufficient interest’ is fairly weak. In addition, this precondition does not apply when the request for intervention comes from member states.[50] Conversely, the European Commission enjoys a right to be heard as amicus curiae in proceedings before the courts of the member states.[51]
One could also note a general provision of a similar effect in the new free trade agreement between the United States, Central America and the Dominican Republic,[52] which provides:
A Party that is not a disputing Party, on delivery of a written notice to the disputing Parties, shall be entitled to attend all hearings, to make written and oral submissions to the panel, and to receive written submissions of the disputing Parties in accordance with the Model Rules of Procedure. Those submissions shall be reflected in the final report of the panel.[53]
As will be apparent, in comparison with other rules studied below, this provision is the broadest in scope, allows the fullest participation possible in the proceedings, and is the strictest in nature.
Finally, it is worth examining the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.[54] On 17 February 2005, the Council of the European Union made the decision to approve the Aarhus Convention on behalf of the Community, thereby starting the process for it to become European law on this matter.[55] The Aarhus Convention defines the public as ‘one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups’.[56] As defined, the public shall have access to justice without discrimination as to citizenship, nationality or domicile; and in the case of a corporation or association, without discrimination as to where it has its registered seat or effective centre of its activities.[57] In addition, the public needs to show an interest as defined in the Aarhus Convention itself.[58] Although the Aarhus Convention provides that disputes may be solved by means of arbitration,[59] it is unclear whether the requirement of public participation also applies in this case. Nonetheless, these provisions are of considerable interest regarding the trend I am seeking to clarify here.
The amicus curiae mechanism was first developed in common law countries; although whether the common law concept is an offshoot of an early Roman law concept is still unclear.[60] In the United States, the amicus curiae system has been popular from the first case,[61] especially in suits before the United States Supreme Court. The numbers are telling. Comparing the period of 1946–55 to that of 1986–95, the number of amicus briefs filed in the Supreme Court has risen from 531 to 4907, and the percentage of cases in which at least one such brief was filed has increased from 23 per cent to 85 per cent.[62] Thirty-four cases have triggered 20 briefs or more — one case triggered 78 briefs — for subject matter ranging from abortion and affirmative action, to punitive damages, the First Amendment, copyright, federalism, tax powers and the environment.[63]
The Rules of the Supreme Court of the United States 2005 (‘US Supreme Court Rules’) provide a set of provisions concerning amicus curiae briefs.[64] The first provision provides:
An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.[65]
One must note immediately that the provision refers to a ‘matter’, a very broad, general term, which could cover both factual circumstances and elements of law. The issue should be relevant — in other words, it must stay within the subject matter of the dispute — but should show, beyond the parties’ arguments, the other issues with which the Court should be concerned and should add something to the general content of the case. The operation of this principle illustrates one of the difficulties faced by the amicus curiae mechanism, because although it suggests that many amicus briefs could have been dismissed for failing to meet this standard, this does not appear to be the case in practice, as the statistics mentioned above show.
Who may file an amicus brief? Any and everyone, as the US Supreme Court Rules do not specify any special requirements. However, there are two categories of amici: the first comprises only ‘public entities’; the second category includes all other entities or persons. The persons who fall within the first category include: the United States, represented by the Solicitor-General; any agency of the United States allowed by law to appear before the Supreme Court; a state, commonwealth, territory or possession represented by its Attorney-General; and a city, county, town or similar entity when submitted by its authorised law officer.[66] The list is exhaustive and cannot be enlarged even by a decision of the Supreme Court. These public entities are allowed to file an amicus brief without permission from the parties or the Court. This mechanism corresponds mutatis mutandis to that known in civil law countries as the Ministère public. Such a provision is consistent with traditional understandings of representative democracy, whereby public entities are supposed to represent the collective interests of the society they administer.
By contrast, the second category is not defined. This is understandable for several reasons. The first is procedural in nature. The entities and persons who belong to the second category of amici are not allowed to file an amicus brief unless they get permission from all the parties at stake in the case, or unless permission is granted by the court itself.[67] Hence, the Court will be able to verify the value of the amici petitioning to file a brief and may screen them according to a number of criteria (not specified in the US Supreme Court Rules) which could include the representativeness of the amicus concerned.[68] Conversely, because of the common law adversarial system, there is no reason for the amicus curiae accepted by all parties to be further scrutinised by the Court.
The second reason is more substantive. The amici who belong to the non-public entity category represent what is now understood as ‘civil society’. They are emblematic of the renewed interest in ‘direct democracy’ or ‘participative democracy’, representing collective interests which are otherwise not represented.[69]
The US Supreme Court Rules neither require an interest (in the legal sense) to be demonstrated by the amicus, nor do they provide for neutrality or independence. On the contrary, it is implicit in the rules that the amicus could be filing in favour of a party. Under r 37.6, a brief must indicate whether counsel for a party authored part or all of the brief, and it must also indicate who made a monetary contribution to its preparation or submission. In addition, r 37.3 provides that the brief must indicate the party for which it is filed, or, if it is not filed in favour of any party, whether it indicates affirmance or reversal.
One may argue that the admission of amici in a common law system is a substitute for third-party intervention, which does not fit well with the adversarial system paradigm. However, this argument is not convincing, as the mechanism of third-party intervention in civil law countries (the inquisitorial system) does not have the same function as the amicus intervention under common law. Contrary to the broad interests represented by amici curiae, third parties in a civil law system represent their own narrow interests. This is probably the reason why it is currently envisaged that civil law countries will provide for some form of amicus.[70]
The concern to ensure that amici curiae have legitimacy to intervene is illustrated by r 37.2, according to which the amicus must be either accepted by all parties to the case or be allowed by the court. Whether the amicus’ legitimacy should derive from the notion of ‘interest’[71] or from that of ‘representativeness’ remains unsettled, due to the way in which the US Supreme Court Rules have
been applied by the Court. This issue does not need to be resolved here, as it is sufficient to stress the crucial importance of the legitimacy of any intervening amicus.
However, it must be recognised that the influence of amicus briefs has not been as great as might have been expected.[72] Indeed, some argue that the amicus in the United States has become just another form of lobbying.[73] This is understandable considering the significant role that judicial decisions (particularly those of the Supreme Court) play in shaping United States society. However, it may be that amicus briefs are not even read by judges and are allowed as a mere formality in the new functioning of society at the beginning of the 21st century, without any real content.
The amicus curiae system has taken a different route in France. Although it was introduced into the French procedural system in the early 1980s, it has been seldom used and, until recently, only upon invitation of the court.[74] Moreover,
in order to qualify as an amicus curiae, one has to be recognised as a personalité — that is, a prominent scientist, a high ranked official with extensive experience in the field at stake, or a highly representative organisation whose expertise is uncontested.[75] It is also worthwhile noting that until recently the amicus could only answer specific questions posed by the court and had no right to deviate from those questions to express their own opinions about the issue at stake in the court proceedings.
This restrictive conception of the French form of the amicus curiae could be abandoned in favour of a different approach which better resembles the common law view. For example, a recent decision of the Cour de cassation[76] showed that it may be willing to relax the process upon the request of an amicus.[77] That case involved the juridical characterisation of a fairly new financial instrument which borrowed features from a saving instrument, a type of life insurance and a more traditional financial investment. While the case was being reserved before judgment, the Conseil Supérieur du Notariat filed sua sponte an amicus brief by writing to the First President of the Cour de cassation.[78] This note was then circulated to the Procureur général,[79] who, after securing the approval of all parties involved, decided to open a wider consultation. Briefs by the Ministry of Economic and Financial Affairs, Ministry of Justice, and the Fédération Française des Sociétés d’Assurances (the French Federation of Insurance Companies) were filed and subsequently sent to the parties in order to respect the ‘principe de la contradiction’ (principle by which each party has a right to respond to arguments put against them). However, they were not made public, and the only knowledge of those briefs available to the public were the extracts contained in the report of the conseiller-rapporteur[80] and the conclusions of the avocat général.[81] This may be considered as a transitional case where the Cour de cassation, within the framework of existing procedural means, tried to accommodate general interests potentially affected by the decision and also to protect the reasons it was about to deliver.[82]
The ALI/UNIDROIT Principles and Rules are the first proposals for a universal set of norms.[83] The project was initiated in 1997 by the ALI, which later sought the partnership of an intergovernmental organisation so that the proposal would have more chance of being widely accepted. The final draft of the principles was adopted in April 2004 by the UNIDROIT Council and by the General Assembly of the ALI in May 2004.[84] However, the rules were not adopted as such, but remain as a study in the American Law Institute Reporter with the aim of giving an example of how the principles could be put in more concrete terms.[85] It is true that there is greater difficulty in agreeing on specific and detailed rules at a universal level, whereas principles, normally drafted in more general and abstract terms, are more easily acceptable for many different cultures and societies.[86]
It should be noted that, as far as amicus curiae intervention is concerned, the proposed ALI/UNIDROIT Principles and Rules contain only one principle and no accompanying rule. Principle 13 provides as follows:
Amicus curiae submission: Whenever appropriate, written submissions concerning important legal issues in the proceeding and matters of background information may be received from third persons with the consent of the court, upon consultation of the parties. The court may invite such a submission. The parties should have the opportunity to submit written comment addressed to the matters contained in such a submission before it is considered by the court.
The comment following Principle 13 shows that its inspiration has been taken, in essence, from the United States approach, as it stresses that an amicus brief may be helpful to the court to ‘achieve a just and informed disposition of the case’[87] and should provide ‘material assistance’ to the court.[88] Failing this, the court has full power to reject the submission.[89] It is also stressed that the submission should not interfere with a court’s independence.[90]
With respect to the procedural details of the submission, a few comments are required. First, although the principle speaks of a written submission, the comment makes it clear that, if the court so decides at its discretion, the submission may be supported by oral presentation.[91] Second, according to the comment, any person (either an individual or an entity) may be allowed to file an amicus brief, whether it is disinterested or partisan and whether or not it has a legal interest sufficient for intervention.[92] In other words, it is clear that the amicus does not become a party to the case — it is an ‘active commentator’.[93] Consequently, there is no need to identify any specific interest. Finally, parties must always be given the opportunity to reply to the amicus brief, although they are not necessarily given an opportunity to oppose its submission.
The situation is a little different before arbitration tribunals. First, one must emphasise the fact that many arbitral tribunals derive their powers only from the parties’ will.[94] Hence, the parties control the arbitral proceedings, which are tailored, both in substance and procedure, to their own needs and dispute. By the same token, the eventual decision should have no impact beyond the parties. However, the recent evolution of arbitration to encompass disputes which cover interests larger than just the parties involved — such as what is known as ‘investment arbitration’ or arbitration in competition matters — obliges us to reconsider the limited character of the arbitration process. In fact, ‘arbitration’ is often used to refer to the dispute resolution mechanism in those areas, when it would be clearer and less misleading to invent another concept to distinguish it from typical international commercial disputes between private parties.[95]
Second, the arbitral process is said to be confidential. This was (and to some extent, still is) always taught as one of the major advantages of arbitration over court proceedings. Confidentiality allows parties to keep the nature and the extent of the dispute private, and makes it possible for them to go on with business ‘as usual’ so that the market does not suffer from the dispute. Although this argument may initially appear to be insurmountable, it can be overcome fairly easily. The objective of confidentiality is more to protect the substance of the information exchanged during the arbitral process than the existence of a dispute, which is probably well known in the market and, in many cases, has to be disclosed in annual reports (particularly if the company is publicly listed). Under most national arbitration laws, confidentiality may be protected by imposing on those participating in the arbitral process a duty not to disclose further what is learnt.[96] The NAFTA guidelines, which will be analysed later in this section,[97] show that it is possible to protect confidentiality while allowing non-disputing parties to intervene in the process.
Third, one argument against the participation of non-disputing parties in an arbitral process is linked with the supposed neutrality of the arbitral process which is due, among other features, to a ‘delocalisation’ or ‘denationalisation’ of the arbitral proceedings. Some commentators fear that the intervention of non-disputing actors may disrupt this neutrality. It is not entirely certain, however, that neutrality is the proper concept to be used in this context. The law is never neutral. It is a technique (among others) to impose values which are shared by the members of the community for which the legal norms are being created. Furthermore, even if neutrality is accepted as a legitimate goal, it is hard to see why an amicus intervention would disrupt it. On the contrary, an amicus would be able to shed light on the values underlying the measures taken and the norms which are at stake in the dispute. It seems that such a process could only clarify the issues and add to its general neutrality.
Some recent amendments to arbitration rules, such as the Swiss Rules of International Arbitration (2004) (‘Swiss Rules’), which entered into force on 1 January 2004, may pave the way for a better use of non-disputing parties in arbitration proceedings.[98] It is too soon to know how arbitral tribunals acting under the Swiss Rules will use the power they have been granted. A concrete example of the acceptance of amicus curiae in the arbitration process can be seen in the statement issued by the North American Free Trade Commission (‘NAFTA Commission’) on non-disputing party participation dispute resolution under ch 11 of the NAFTA.[99] The statement makes clear that submissions by a non-disputing person or entity are neither prohibited, nor limited, by the provisions of the NAFTA. This is an important step, as it is well known that a number of tribunals which had been asked to hear non-disputing parties had refused to do so in the past. The statement goes on to specify that only written submissions are acceptable. The procedural provisions recommended by the NAFTA Commission are appropriate since the tribunals are granted the duty to accept or deny the request for submission (hence the tribunal’s discretion is complete). The main guiding principle is that the submission should not disrupt the proceedings or unduly burden or unfairly prejudice either of the disputing parties.[100] In terms of the substance of the case, the submission should not raise any matter which is not already part of the dispute. This is a very important safety provision for achieving the goals set forth in art 7. Indeed, if non-disputing parties were allowed to enlarge the scope of matters in dispute, the disputing parties would be burdened and the proceedings could become unmanageable.
The NAFTA Guidelines provide a list of considerations which the arbitral tribunal should bear in mind before it makes a decision on the request for an amicus submission. The conditions may be summarised as follows:
It is noteworthy that while all disputing parties must be notified of a request for a submission, their consent is not required. Obviously, it will be easier for the tribunal to accept the submission if all the parties agree. Conversely, even if the parties do not give their consent, the tribunal may still decide to accept the submission if it considers that the public interest at stake is of such importance that an amicus curiae should be allowed. Yet one could imagine cases in which, even if they agree, the tribunal considers that the submission will add nothing to the dispute or not assist the tribunal in its decision.
Canada has made a declaration to encourage arbitration proceedings to be ‘open to the public’ upon obtaining the consent of disputing investors.[104] The only limitation is the protection of confidential information, including business information.[105] Canada suggests that tribunals may make the appropriate logistical arrangements for open hearings in consultation with disputing parties.[106] These arrangements may include use of closed-circuit television systems, internet webcasting or other forms of off-site access.[107] These suggestions go one step further than the NAFTA Commission’s statement analysed above, since it agrees to submissions which are not necessarily written. It appears that while the United States has not made a similar declaration, its practice, both before domestic and international tribunals, has always been in favour of a broad participation by the public. By contrast, Mexico has always been opposed to such a course of action.[108]
Two cases have shown how the public could be admitted to participate in arbitral hearings and contribute to a better understanding of the interests at stake: Re an Arbitration under Chapter 11 of the North American Free Trade Agreement and the UNCITRAL Arbitration Rules: Decision of the Tribunal on Petitions from Third Persons to Intervene as Amici Curiae (Methanex Corporation v United States of America)[109] and UPS Inc v Canada.[110] Both cases were conducted under the Arbitration Rules of the United Nations Commission on International Trade Law (1976) (‘UNCITRAL Arbitration Rules’).[111] In both cases, all parties had agreed to open the hearings to non-disputing parties.
Outside the NAFTA, the recent ICSID case of Aguas Argentinas SA v Argentine Republic[112] is worth mentioning in some detail to illustrate the difficulties an arbitral tribunal may face when requested to enlarge the hearings to accommodate third parties. Before stating the facts, it is worth mentioning that the ICSID’s Rules of Procedure for Arbitration (Arbitration Rules) (‘ICSID Arbitration Rules’)[113] are not particularly detailed in this respect. They simply state that: ‘The Tribunal shall decide, with the consent of the parties, which other persons besides the parties ... may attend the hearings.’[114] Five NGOs[115] filed a Petition for Transparency and Participation as Amicus Curiae with the ICSID secretariat, requesting the arbitral tribunal organised under ICSID auspices to allow petitioners to: (a) have access to the hearings; (b) present legal arguments as amicus curiae; and (c) access all documents in the case in a timely, sufficient and unrestricted manner.[116] The parties were given the opportunity to comment on the requests for intervention, with the respondent approving the petition, while the claimants asked the tribunal to reject it. The tribunal interpreted r 32(2) of the ICSID Arbitration Rules literally and rejected the petition as far as the hearings were concerned.
However, the tribunal took a more liberal approach towards the submission of amicus briefs. It first noted that ‘[n]either the ICSID Convention nor the Arbitration Rules specifically authorize or specifically prohibit the submission by non parties of amicus curiae briefs or other documents.’[117] Although this statement is formally accurate, one may note that the drafters of the ICSID Convention and ICSID Arbitration Rules may not have thought specifically about amicus curiae briefs in 1965, or believed that r 32(2) was broad enough to cover all kinds of participation in the hearings — written or oral — at whatever stages possible. Further, the tribunal noted that art 44 of the ICSID Convention grants residual powers to it to decide an issue whenever a procedural question arises which is not covered by the Convention or by any additional rules agreed upon by the parties. The tribunal then proceeded to hold that this provision gave it the power to admit an amicus curiae brief even where one of the parties objected. In doing so, the tribunal relied heavily on the two NAFTA cases cited above.[118] In my view, the situation is quite different, as the UNCITRAL Arbitration Rules are entirely silent on non-disputing parties’ intervention, while the ICSID Arbitration Rules provide — at least partially, if the tribunal’s interpretation is to be accepted — for such a right. The fact that the tribunal states that art 15(1) of the UNCITRAL Arbitration Rules is ‘substantially similar to art 44 of the ICSID Convention’[119] gives no weight to the fact that art 44 specifically relies on other arbitration rules. For the issue at stake, these other rules lead to art 32(2) of the ICSID Arbitration Rules, which has no equivalent in the UNCITRAL Arbitration Rules. Consequently, it is difficult to rely on the UNCITRAL Arbitration Rules as a comparable instrument in the ICSID context.
ICSID has undergone extensive consultation about potential reform of a number of features in its arbitration and dispute resolution rules. One of the proposed changes concerned what the secretariat called ‘third-party participation’. This issue triggered the most disagreement.[120] The paper comments that:
Concerns were expressed that any provision on access of third parties to proceedings should subject such access to appropriate conditions ensuring, for example, that the third parties do not by their participation unduly burden parties to the proceedings.[121]
The new proposed art 32(2)[122] provides:
After consultation with the Secretary-General and with the parties as far as possible, the Tribunal may allow other persons, besides the parties, their agents, counsel and advocates, witnesses and experts during their testimony, and officers of the Tribunal, to attend or observe all or part of the hearings. The Tribunal shall for such cases establish procedures for the protection of proprietary information and the making of appropriate logistical arrangements.[123]
One may note immediately that this new proposal does not conclusively resolve the question of admission of amicus briefs. It is hard to read into the verbs ‘attend or observe’ an increase in active participation of non-party persons or entities. The explanatory note to the proposed article does not address this issue.[124]
The final issue posed by amicus intervention is the question of who may be an amicus. Should the amicus be selected and, if so, by whom, and under which criteria? The easiest question will be first considered: by whom should the selection be made? In my view, there is no doubt that it should fall within the powers of any tribunal to accept or reject any amicus. The only exception I would recognise is where the parties both agree that an amicus should be accepted. In that case, I would propose that the tribunal should not have the power to deny admission to that particular amicus. However, even if both parties reject an amicus, I would still grant the tribunal the power to accept its submission.
The second question is whether there should be a selection. Here again, it seems quite clear that not every single person or entity who claims to submit an amicus brief should have it accepted, as there must be some degree of control, if only to keep the case to a manageable size. The real difficulty is in deciding by which criteria an amicus brief is to be accepted. The tribunal in Aguas Argentinas SA v Argentine Republic decided that only ‘suitable non-parties’ may make amicus submissions.[125] In order to assess suitability, the tribunal explained that submissions should come from ‘persons who establish to the tribunal’s satisfaction that they have the expertise, experience and independence to be of assistance in the case’.[126] Henceforth, the tribunal set out the information that each amicus should provide when requesting leave to submit a brief, and what considerations will be taken into consideration by the tribunal in granting leave to appear. While the information sought is likely to be clear, precise and cogent, a list of considerations may be too general to be helpful. It is noticeable that the tribunal was clearly influenced in its decision by the NAFTA Guidelines, a fact which shows that a truly common transnational approach is slowly taking shape.
Indeed, the most important feature of an acceptable amicus submission is how it deals with the representativeness and legitimacy of the person or entity who claims to act as amicus. This is why the requirements in the NAFTA Guidelines — that the potential amicus disclose its membership; legal status; general objectives; the nature of its activities; any parent organisation of which it is a subsidiary; its possible affiliation, direct or indirect, with any disputing party;
the existence of any financial assistance or other assistance in preparing
the submission; and the nature of the interest that the applicant has in the arbitration[127] — are of such fundamental importance in assessing the amicus’ legitimacy.
It is nowadays very fashionable to speak of competition between legal systems and legal norms as if they were simply competing products on the market. This new way of approaching international relations stems from the school of law and economics, which emphasises the economic impact of legal norms.[128] When it comes to dispute resolution, this approach to cross-border relations is, in my view, counterproductive for several reasons. First, the value of legal norms cannot be reduced to their economic impact. A legal norm carries all sorts of values which are not taken into consideration in an economic analysis. Second, law and economics scholars start from a common premise in economic analysis: that actors on the market make rational decisions before acting. Common sense and a little experience with the functioning of corporations reveal the falsity of this premise: actors very often make decisions in an irrational manner.[129] Third, a legal norm — as with any other norm which applies to several actors at the same time — creates the ‘rules of the game’ for all actors in the same market. How can there be competing sets of rules of the game? Imagine if players seated at a bridge table each have their own rules: as the game goes along, they would have to decide which rule applies for each phase of the game!
The final false premise of the law and economics analysis consists of the proposition that, given market forces, the best rule always wins. This is not quite true, and a few examples will show why. The first is the forum non conveniens mechanism, in which the court seized determines that it is not the most convenient forum and refers the parties to a foreign court which it considers to be more convenient. The problem may arise when, as in Lubbe v Cape plc,[130] the court seized refuses to decline jurisdiction even though the court in the foreign country has stronger links with the case. The reasons why the English court did not decline jurisdiction — the lack of expertise in the South African court, and the absence of an equivalent right of access to justice as compared with the United Kingdom — are controversial. Since the defendant, a company which operated asbestos mines, mills and factories in South Africa, had already ceased activities in that country, it seems quite clear that there were fundamental principles of human rights at stake which may have influenced the House of Lords’ refusal to decline jurisdiction. However, it is not desirable that a court pass judgement on the system of justice or system of law of another country. It would be very different if the decision on jurisdiction were made jointly by the two or more courts which have jurisdiction in a given case, rather than by way of a unilateral decision that one of the courts is not an appropriate forum.[131] It should also
be noted that the English court had jurisdiction because it was the forum of
the defendant’s domicile, one which is considered in the European legal system as conferring general jurisdiction — that is, a court in which all suits against
a defendant may be brought, wherever the activity leading to the dispute had
taken place. An additional difficulty is that although the plaintiffs were
situated outside the European Union, the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters[132] applied, in which there is no room for use of the forum non conveniens mechanism as it is unknown in the provisions of the Brussels Convention.[133] In a purely orthodox
application of the Brussels Convention, the English courts should not
have discussed forum non conveniens at all.
It is even more problematic to accept the system of anti-suit injunctions. In such a system, when a court is seized in one country, the defendant in that case starts (or is about to start) a proceeding in a different country, hence taking the role of plaintiff in that second suit. The plaintiff in the first case requests the first court to order an injunction to prevent the defendant in that case from starting a case in a foreign country. This system hardly exists in civil law countries, but it has been used quite often in common law countries and particularly in the United States, the United Kingdom, and Australia.[134] This problem arises from the fact that, because there is no transnational unification of international jurisdictional rules, two or more countries may have jurisdiction under their own rules at the same time, between the same parties, in the same or a related case. The injunction is not directed towards the foreign court but towards the party who intends to start (or has started) the suit in the foreign country. In a country like the United States it is not without significance that, at the domestic level, the concomitance of two proceedings is not considered as a problem, since the first judgment reached will be pleaded in the second case; the lis pendens doctrine not being part of the United States procedural system.[135] By contrast, when the competition between jurisdictions occurs at the international level, there is a clear distrust of foreign courts in favour of proceedings taking place in the United States. This is beyond criticism when the parties have agreed on a choice of forum clause giving jurisdiction to a United States court and the foreign proceeding takes place in violation of such a clause.[136] However, when no such clause exists, the competing jurisdiction is a given and it would be better for the courts to cooperate. Again, within the EU, the anti-suit injunction has been prohibited in the context of the Brussels Convention, and in its replacement, Council Regulation (EC) No 44/2001.[137]
The last example deals with jurisdiction over internet activities. Litigation involving Yahoo! Inc and La Ligue contre le Racisme et l’Antisémitisme was one of clear competition between the United States and France, both at the substantive level and for jurisdictional purposes. Briefly, the case involved Yahoo! Inc’s auction sites, which offered Nazi and racist memorabilia prohibited in France[138] but not in the United States because of the First Amendment to the United States Constitution. The lack of cooperation resulted in several conflicting judgments in both countries, each country refusing to enforce the other’s decisions.[139]
Another source of difficulty which gives rise to a lack of cooperation is the fact that jurisdictional rules have always been considered unilateral — that is, taking into consideration only the interests of the courts of the country which define the norm, without due consideration of other countries’ interests. This underscores why it is so important to be able to agree on a truly global convention for jurisdiction in the same way that the EU member states were able adopt the Brussels Convention. The unilateral characteristic of jurisdictional rules has caused difficulties in the past, but these have been multiplied exponentially with internet disputes, as shown by the Anticybersquatting Consumer Protection Act of 1999 (US).[140] This Act creates an in rem jurisdictional basis, whereby courts at the place of registration of a domain name have the power to decide disputes over that particular domain name.[141] Given that Verisign in Virginia is the registry for the top level generic domains, the Anticybersquatting Consumer Protection Act of 1999 (US) has the effect of conferring global jurisdiction over such domain names on United States courts.
For all the above reasons, cooperation should be encouraged as a replacement for competition between the legal systems of different countries. The use of the word ‘cooperation’ is important. Thirty years ago, one talked about ‘judicial assistance’. The word ‘assistance’ is still used, but what is really needed is true judicial cooperation.
The idea of a network of authorities is not completely novel. Indeed, the Hague Conference on Private International Law (‘Hague Conference’)[142] has been a leader in requesting, in many of its conventions, the creation of what are known as ‘central authorities’.[143] Each state acceding to a convention has the duty to create a central authority which will work as a facilitating body within a state and will liaise with the central authorities of other states which are party to the same convention.[144]
From this early example, networks of authorities have developed very strikingly in the last decade or so in a different manner. Such networks exist in many different fields, such as accounting, competition, family and financial law, whether in substantive law or for procedural matters only. So vast are the networks that some authors have proposed the idea that this trend is the new paradigm of world governance.[145] These networks take many different forms: they are sometimes independent from international organisations, but may also be formed either within the framework of organisations such as the UN with the aim of helping decision making, or formed upon encouragement from the organisation. Such is the case with the Hague Conference, where networks participate more actively and efficiently in the enforcement of the conventions adopted under the auspices of the organisation. In addition, some very informal networks, of judges or administrative authorities, serve as a think tank for their members to help them grasp the most current international or domestic trends in order for them to do a better job in their professional lives. This article will analyse an example of each type of network.
Competition has been a very fruitful area in which administrative authorities around the world have gathered together, forming what is known as the International Competition Network (‘ICN’), complemented within Europe by the European Competition Network (‘ECN’). It is not a dispute resolution mechanism but a preventive one, and it is thanks to the work of bodies such as the ICN that conflicts may be avoided. The ICN describes itself as follows:
The International Competition Network (ICN) provides antitrust agencies from developed and developing countries with a focused network for addressing practical antitrust enforcement and policy issues of common concern. It facilitates procedural and substantive convergence in antitrust enforcement through a results-oriented agenda and informal, project-driven organization.
The ICN brings international antitrust enforcement into the 21st century. By enhancing convergence and cooperation, the ICN promotes more efficient, effective antitrust enforcement worldwide. Consistency in enforcement policy and elimination of unnecessary or duplicative procedural burdens stands to benefit consumers and businesses around the globe.[146]
The ICN was formed in October 2001 by 14 jurisdictions after they realised that globalisation had considerably increased the number and extent of overlapping interests in competition matters, and that an increasing number of countries had created their own bodies of law and enforcement agencies. While these bodies numbered less than 20 in the middle of the 20th century, they now number more than 80 around the globe. It is noteworthy that the ICN has no headquarters, nor any secretariat, and most of the work is conducted through more modern means of communication.[147] When physical meetings do happen, they take place in different countries. The ICN does not seek any ‘top-down’ harmonisation of competition law and policies throughout the world. It considers that any attempt at wholesale harmonisation would do injustice to the great diversity of the economic, institutional, legal and cultural settings prevalent in the home jurisdictions of its member agencies. Hence, whenever the ICN identifies best practices, or the most convincing approach, it is up to individual agencies to consider whether they want to adopt such an approach.[148] In addition, the practices which the ICN recommends are partly based on close inter-agency cooperation, notably in the control of multi-jurisdictional mergers. In another area, that of the fight against cartels, the ICN has recognised the difficulty of finding evidence, since the secrecy of the entities taking part in the cartels prevents successful investigations.[149] This is why the ICN works as a platform between anti-cartel enforcers who meet regularly for workshops where they share experiences and best practices. They also discuss ways of strengthening their cooperation to achieve more successful results.
The ECN has been set up to facilitate close cooperation among national competition authorities and the European Commission. It also ensures an effective and consistent application of arts 81 and 82 of the Consolidated EC Treaty. Council Regulation (EC) No 1/2003 of 16 December 2002 on the Implementation of the Rules of Competition Laid Down in Articles 81 and 82 of the Treaty (‘Modernisation Regulation’)[150] and the joint statement of the Council of the European Union and the European Commission set out the main principles for the functioning of the ECN.[151] These must be understood within the framework of the reform of European competition law which has been changed from a centralised system of exemptions to a decentralised system of legal exception.[152] The decentralised nature of the system renders the issuance of contradictory decisions and a less coherent application of the law more likely. The Commission Notice on Cooperation within the Network of Competition Authorities[153] was issued in order to ensure that if more than one authority deals with a case in parallel actions, the authorities will endeavour to coordinate their action to the extent that it is possible.[154] At first glance, corporations may not be very enthusiastic about this prospect, and some authors have advised them to try to get the Commission to deal with their cases in a one-stop shop.[155] An additional worry for companies is the leniency programmes which are developed throughout the EU, and the fact that there is an exchange of information between competition authorities within the network. If these concerns are legitimate at a time when the network is starting its operation and before it is able to develop best practices, hopefully they will disappear over time, considering the benefits actors in the market will enjoy from that kind of cooperation.
In family law, the Hague Conference has pioneered a system in which judges of countries that had ratified the Hague conventions on family law matters[156] are able to gather for seminars, which led to the establishment of an informal network with its own newsletter.[157] The network is designed to allow actual cases to be handled more smoothly than if there was competition among judges. Indeed, when a child is abducted in one country and is taken into another, it is certainly more detrimental to the child that the judges in the two countries ignore each other and make separate decisions regarding the best interests of that child,[158] instead of sharing information and trying to decide together what would be the best solution. The judges’ network therefore tries to overcome the ignorance and isolation of judges when they have to decide a transnational case.
In pure dispute resolution or procedural matters, the EU is somewhat of a champion in creating networks. Besides the European Judicial Network in Civil and Commercial Matters (‘EJ-Net’),[159] there is the European Consumer Centres Network (‘ECC-Net’),[160] SOLVIT,[161] and more.[162] Since the Treaty of Amsterdam,[163] civil cooperation has been established as a new competence of the Community.[164] In order to implement this new competence, the Council of the European Union met in Tempere, Finland, in October 1999 to discuss an action plan for the new area of freedom, security and justice (forming the ‘Tempere Programme’).[165] During that meeting, the heads of state and governments decided that the European Commission should take various initiatives to facilitate access to justice within Europe for individuals and corporations. One of the initiatives cited was a network of national authorities specifically competent in civil and commercial matters. In response to the Tempere Programme, the Council of the European Union more recently reiterated its commitment to the continued development of judicial cooperation and to the full completion of the programme of mutual recognition adopted in 2000[166] during its Brussels Meeting in November 2004 (forming the ‘Hague Programme’).[167] The Council of the European Union confirmed that ‘borders between countries in Europe [should] no longer constitute an obstacle to the settlement of civil law matters or to the bringing of court proceedings and the enforcement of decisions in civil matters.’[168] The Council of the European Union, therefore, stressed the importance of enhancing cooperation and, with that objective in mind, decided to require that each member state designate ‘liaison judges’ or other competent authorities.[169]
In September 2000, the European Commission did propose such a network, and its creation was adopted by the Council of the European Union in May 2001.[170] The EJ-Net is composed of representatives of member states’ judicial and administrative authorities. The mandate of the network is to facilitate judicial and administrative cooperation, and the exchange of information and experiences. This will assist individuals and companies (and their legal counsel) who are confronted with trans-border disputes to understand the differences between the systems of the member states, the content of European instruments, and the content of other international instruments which may be applicable such as those adopted by the Hague Conference or the Council of the European Union, with the aim of achieving amicable resolution of disputes whenever possible. More precisely, EJ-Net is charged with the task of facilitating ‘the smooth operation of procedures having a crossborder impact and the facilitation of requests for judicial cooperation between the Member States, in particular where no Community or international instrument is applicable’.[171] The network’s modus operandi is essentially organised around three methods:
More importantly, several provisions emphasise the practicalities of cooperation. The aim is clearly to establish a concrete set of enabling rules so that the network functions in all practicable ways.[173]
The next step that will soon be proposed by the European Commission is to open the network to the different legal professions, including practising attorneys, notaires (notaries) and huissiers (bailiffs). Of course, because the network is funded by public money, it will not be easy to open it to private professionals without a corresponding decision about their proper financial contribution. This is a difficult issue because small firms, individuals and companies that do not have the financial means to participate in the network may be deprived of valuable information which should remain public and free. It is also difficult to conceive of different levels of participation being organised depending on the level of financial contribution. The solution may lie in opening the network to all, with financial contribution remaining purely voluntary. Alternatively, the financial participation could come from the professional organisations (bar associations, chambre des notaires etc) instead of individual members. The whole idea behind the opening of the network to the legal profession is to establish best practices.[174]
A very telling expression has been invented by Swiss doctrine: juge d’appui.[175] This concept has triggered little international attention so far and has not resulted in a generally-accepted translation into English. For lack of a better expression, it can be described as a ‘support judge’. The support judge stems from the idea that there should be no competition between arbitration and state courts, as they are complementary and should work together.[176] The support judge is there to ensure assistance in the arbitration process when needed so that it is efficient and the parties’ intention to use arbitration as their dispute resolution method is fully respected. Depending upon the arbitration law to be applied, the support judge may help by appointing an arbitrator when the appointment process fails; by prolonging the deadline to render the award; by granting provisional measures when the tribunal is unable to do so; or by enforcing such measures when the tribunal has ordered them. They may also suspend the proceedings to set aside an award in order to give the arbitral tribunal an opportunity to take action to eliminate the grounds for setting it aside.[177] Under French law, the juge d’appui is found in the place of arbitration as long as it is situated in France.[178] Article 1493 of the Nouveau Code de Procédure Civile provides that, where arbitration proceedings are international in nature — as opposed to being purely domestic[179] — difficulties concerning the formation of the arbitral tribunal shall be resolved by a single judge: the president of the tribunal de grande instance (‘TGI’) of Paris. The rule is easy to justify. First, most international arbitration proceedings take place in the TGI of Paris, where specialised firms are also located. Second, over the years, judges at the TGI of Paris have developed a strong expertise in the field so that the quality of their decisions is high.[180] But, very cogently, art 1493 suggests that the parties to the arbitration agreement may choose another support judge. Hence, if the parties have chosen, for example, a judge in Geneva, that choice will be upheld, at least by the French judge. It remains to be seen whether the court in Geneva would accept such a choice and whether this would be a cogent choice. Nevertheless, art 1493 operates irrespective of whether the court chosen is located within or outside of France. In addition, art 1457 makes it possible for the arbitral tribunal itself — and not only the parties — to apply to the support judge in a defined set of circumstances,[181] provided that the arbitration proceedings take place in France (or that French law is held to be applicable in the case of an international arbitration) unless the parties have decided otherwise. Many other arbitration laws also provide for some help by a judge.[182]
Hence, I think it is about time to encourage parties to include such a provision in their arbitration agreement, and for legislators to add such a mechanism into their arbitration law. However, before that can occur, a number of factors must first be addressed by legislators:
Court-to-court cooperation is needed mostly in traditional matters of conflict of jurisdictions. But here, the old habits and classic thinking are difficult to displace.
It is quite disturbing to think that the member states of the Hague Conference have been unable to agree on a convention on jurisdiction and foreign judgments covering many aspects of civil and commercial international relations. All the efforts which were deployed between 1992 and 2001 failed and there will be no adoption of a text of a general nature.[184] It is not the foreign judgments part of the project which was the most difficult.[185] Indeed, the major cause of the failure was the chapter in the draft convention which proposed provisions on direct jurisdiction. The reasons for that may not be entirely easy to ascertain. It may be that some negotiators did not want to curtail the right that individuals and companies enjoy to sue in their home jurisdiction and hence there may not have been room to allow a fairly objective allocation of jurisdiction around the world, including through means of cooperative mechanisms such as forum non conveniens or provisional measures. Another reason may have been that jurisdiction remains, in many countries, an exercise in sovereignty to which no limit is acceptable unless what is obtained in return is considered as having a higher price. It is not the first time that jurisdictional rules have caused problems in The Hague. It should be remembered that the Convention on the Choice of Court never came into force.[186] In 1971, for the Brussels Convention, negotiations were required on a separate protocol for the rules of indirect jurisdiction necessary for the functioning of the enforcement rules.[187]
One may still find a sign of this lack of willingness to cooperate in the latest Hague Convention on Exclusive Choice of Court Agreements,[188] despite the fact that the word ‘cooperation’ appears three times in the preamble.[189] What I consider to be a lack of willingness to cooperate may be seen in the following features of the convention. First, it applies only to exclusive choice of court clauses, which are strictly defined,[190] and only if the court or courts chosen are situated in a contracting state, thereby leaving to non-conventional law all other clauses. Second, a long list of excluded matters appears in art 2 where, alongside fairly traditional areas such as family law and the law of succession, there appears a host of other matters which may have a strong economic component.[191] Third, the fact that many reasons are given for a court other than the chosen one to accept jurisdiction also demonstrates a lack of cooperation. This is the substance of art 6, which has not changed substantially from earlier drafts.[192] It is quite extraordinary that a court which has not been chosen by the parties would be given wide powers to decide on the validity and the effect of the choice of court clause. In my view, it would have been enough to provide for the operation of the public policy of the other state. This is a result of party autonomy. Article 6 of the Convention on Exclusive Choice of Court Agreements favours a mala fide party who realises, at the time of the dispute, that the choice made at the time of the agreement is less favourable to its interests than it initially thought it to be.[193] Some argue that obliging a party to go to the chosen court in order to discuss the validity of the choice of court clause is unrealistic,[194] costly, and should not be encouraged.[195] I believe, on the contrary, that this is the only way to avoid competing litigation and the corresponding risk of inconsistent decisions. This problem leads to a loss of time, effort, resources, and is a burden on court systems around the world. In the United States, the tradition has been to let several court proceedings continue simultaneously and apply the first-in-time rule as far as judgments are concerned. However, lately — even in
the United States — the costs (in all senses of the word) generated by such an approach have been assessed anew and a proposal for a lis pendens rule has been published by the ALI.[196]
In fact, the best rule would have been to encourage and organise cooperation between the courts which are interested in deciding the case. The chosen court could be the leader in the process of cooperation, with a duty to contact the court or courts which are designated by the party contesting the first court’s jurisdiction, so that a decision on jurisdiction can be taken jointly. Alternatively, a court seized, if not the chosen court, could contact the chosen court in order to verify whether it accepted jurisdiction or not. Neither of these two courses were even suggested during the negotiations. I realise that even if they had been incorporated into the convention, the potential obstacles to achieving effective cooperation would not necessarily have been eliminated. Indeed, there may be courts which would not have been contacted at the jurisdictional stage but would still have an interest at the recognition level (for example, where the court is located in a country in which some property of the losing party is located). However, the interest of that court in the initial jurisdictional aspect of the case is probably too remote to have any relevance at the recognition stage.
If there is a place where international cooperation is absolutely crucial it is in the provisional measures. Very often a case will be lost or won on the issue of whether a provisional measure is granted and enforced in favour of one party; the losing party in the provisional phase having a strong incentive not to pursue the matter.
Here again, the willingness of states to cooperate has always been meagre. Within the EU, the first provision towards cross-border enforcement of provisional measures was included in the Brussels Convention, then later in the 1988 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters,[197] and most recently in Council Regulation (EC) No 44/2001, which replaced the Brussels Convention for all member states but Denmark.[198] Interestingly, the provision is drafted in a very conservative way. It is not really a rule on jurisdiction, but an enabling rule which allows member states to use their own law to grant interim measures. This is why the ECJ was asked several times to resolve specific difficulties in applying the rule.[199] Even in this closed regional context, cooperation has been difficult to foster. Accordingly, it is easy to understand why cooperation is all the more complicated in a true transnational environment.
The development of provisional measures in this area began with work performed by the International Law Association’s Committee on International Civil and Commercial Litigation under the leadership of the late Dr Peter Nygh. Indeed, that committee took up as its first mandate a reflection upon and draft of a resolution on provisional measures.[200] Any reader of the resolution which was adopted at the end of the Committee’s work on that subject can see that committee members were keen to insist on the utmost cooperation between states. However, because of its state of mind at the time, the Committee was conservative in drafting the resolution and the accompanying comment.[201] Since then, direct communication in fields other than provisional measures has gained momentum.[202] I am hopeful that this will also be developed in the field of interim measures. The latest attempt by UNCITRAL to grant interim measures power to arbitral tribunals may be a step in the right direction,[203] at least as far as the coordination of these powers with those of courts is concerned.
One of the oldest examples of traditional judicial assistance between countries is the service of documents abroad and the taking of evidence abroad. These matters were the subject of the oldest Hague conventions and have been modernised over time, culminating in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters[204] and the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.[205] In the EU, these two topics were among the very first to become Community law after the Amsterdam Treaty established judicial cooperation as an area of Community competence.[206]
I will limit my comment to evidence, as it is in that particular field that some recent developments have taken place which may be of significance for my argument. The Hague Evidence Convention limits itself to evidence taken abroad, outside the judicial system, through a system involving a central authority, while the proceedings are taking place in the home jurisdiction. Usually, the evidence is gathered in a manner that is known in the home country, while the requested country may impose its public policy if those procedures are incompatible with its own. Several countries, including France, amended their procedural codes and rules when acceding to the Hague Convention to allow foreign measures to be used more readily in their courts.[207]
The United States had already gone further than that before acceding to the Hague Evidence Convention,[208] allowing parties to proceedings outside the United States (either before a foreign or an international tribunal) to seek judicial cooperation in the United States to obtain the production of documentary or testimonial evidence under § 1782 of the United States Code.[209] Section 1782 is very broad, as it applies to proceedings outside the United States which are before any kind of tribunal (not only a court).[210] This applies whether or not the evidence is requested by ‘any interested person’, as well as whether or not the proceedings are pending or the evidence is likely to be used in a proceeding which is yet to be instituted.[211]
However, the interpretation of § 1782 divided the federal circuits in such a way that the Supreme Court decided to grant certiorari in the case of Intel Corp v Advanced Micro Devices Inc.[212] The facts are fairly simple: in October 2000, Advanced Micro Devices (‘AMD’) filed an antitrust complaint against Intel Corporation (‘Intel’) with the European Commission in Brussels.[213] In order to prove its case, AMD suggested that the European Commission seek discovery of documents that Intel had previously produced in a private suit before a district court in Alabama.[214] After the European Commission declined to do so, AMD sought the help of the District Court for the Northern District of California under § 1782. The District Court in turn refused AMD’s request,[215] but the Court of Appeals for the Ninth Circuit reversed that decision,[216] which resulted in the case being heard by the Supreme Court.
The 7:1 decision of the Supreme Court demonstrates the willingness of United States courts to lend their powers to aid foreign proceedings, even where it goes against the will of the foreign tribunal itself. Indeed, the Supreme Court decided that parity and comity concerns do not represent categorical bars to § 1782, but are merely considerations which the federal courts should weigh in reaching their decisions.[217] Although there are a number of very promising features in the Intel decision, there are other aspects that go far beyond what would be a willingness to cooperate. The Court reached the conclusion that the European Commission is a tribunal under § 1782 when it acts as a first-instance decision maker.[218] Whether the proceedings at that level are adversarial in nature or not, and whether the foreign institution views itself as a tribunal, have no influence on the interpretation of the meaning of § 1782.[219] I agree with this finding.[220] The Court also decided that AMD qualified as an ‘interested person’.[221] This point is beyond controversy.
The Court went on to decide the requirement for discoverability. In that respect, its decision is much more controversial. Intel argued that the United States courts, in deciding which documents or testimony could be the subject of discovery, should look to the foreign law. In other words, the United States courts should not go beyond what would be available under the foreign rules on evidence. The Supreme Court looked at the text of § 1782 and noted that there was no statutory language defining a ‘foreign-discoverability requirement’.[222] It concluded that Congress did not intend to impose such a limit on the powers of United States courts. The Court stated that
while comity and parity concerns may be important as touchstones for a district court’s exercise of discretion in particular cases, they do no permit our insertion of a generally applicable foreign-discoverability rule into the text of § 1782.[223]
It is true that, as the Court noted, even if a document is filed as evidence under § 1782, the foreign court has discretion not to accept it. However, anyone who has practised in litigation knows that discovery is a burdensome and costly process which should be exercised only when absolutely necessary. This concern could be addressed by limiting orders to evidence that would be acceptable to the foreign court beyond any reasonable doubt. Also, one knows that once a document is filed as evidence, even if the court ultimately decides to disregard it, the influence of the filed document is hard to eliminate entirely. For all of these reasons, it would have been preferable to set out some kind of requirement that the foreign concept of discoverability be applied by United States courts.[224] This is particularly true since the Supreme Court agreed that the purpose of the statute is to ‘promote harmony and provide assistance to foreign or international tribunals’.[225] The Court went further and listed the factors to be considered by district courts when asked to grant such orders. These factors include:
All of these factors are welcome, but make district courts’ decisions all the more difficult and perhaps unpredictable for applicants. It would be less so if the Court had requested the lower courts to liaise with the foreign tribunal (the parties being duly informed and having an opportunity to participate) in order to render a decision that would fit both the needs of the foreign or international judicial system and that of the United States. Instead, as interpreted by the Court, the United States system works somewhat unilaterally under the assumption that United States-style discovery is good in itself, whatever the proceedings may be, even if they take place in a country where no such discovery is known.[231] Hence, although the intentions of the Court were sensible and the willingness to assist foreign or international courts welcome, the reasoning of the Court did not take into consideration the needs and means of the foreign court itself. It also has a counter effect, as it encourages the party to the foreign proceedings who wants to harass the other party to do so. Indeed, discovery is time-consuming, expensive and may lead to disclosure of documents which may be harmful in the very competitive environment in which companies operate nowadays.
It is quite interesting that the field of bankruptcy, which has always been considered to be an area where public policy is important, has seen one of the best efforts to actually put into place a direct form of court-to-court cooperation. It started in an informal way with the demise of the Bank of Credit Commercial International. It became rapidly evident to a number of administrators that, unless they cooperated, there would be little money left for the creditors. Hence, some administrators took it upon themselves to call their counterparts around the world and arrange a meeting so that they could agree on a scheme. This was done without the blessing of the law but, in the end, was by and large successful. Thereafter, the International Law Association and the ALI worked on a cooperation scheme, used for the first time in a number of instances between Canada and the United States.[232] In 2003, the ALI published its Principles of Cooperation among the NAFTA Countries as part of its Transnational Insolvency Project.[233] Part of that endeavour was devoted to developing ‘Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases’,[234] which by early 2004 were already endorsed by a number of judges around the world.[235] Within the same period, the International Bar Association published its concordat model, which was applied in a number of cases between Canada and the United States. Finally, the UNCITRAL working group on bankruptcy endorsed all of these efforts in a recent report to the European Commission’s meeting in July 2005, although the secretariat recognised that there were difficulties in implementing the guidelines and that many cross-border cases still exist where they are not used.[236]
As a result of globalisation, civil and commercial legal disputes have become increasingly complex. In this context, there is a significant need for access to justice by private individuals. It is possible to address such needs through the means of aggregate litigation, which has been commonplace in common law jurisdictions, particularly in the United States. The adoption of such a practice in the EU is, as yet, unforeseeable. There may also be a justification for the explicit consideration of public interests at stake, through the amicus curiae system. If amici are truly representative of the groups for which they claim to act, it is arguable that they should play a greater role in domestic courts and arbitration tribunals.
There is also a need for greater cross-border cooperation, perhaps by forming networks of central authorities and judges. In this way, the shared experiences of the participants may lead to better practices and outcomes. Such networks already exist in some fields of law. Cross-border cooperation could be increased by encouraging the inclusion of a support judge in arbitration, a concept which has already found some favour in Switzerland. Nevertheless, there are significant practical issues that must be addressed for such a mechanism to succeed. Courts may be also able to cooperate by combining cases where a jurisdiction is in dispute. Furthermore, there should be greater cooperation with regards to the enforcement of provision measures and the taking of evidence. One may turn to the field of bankruptcy, where court-to-court cooperation has been very effective, to see that the difficulties of transnational dispute resolution may be overcome.
In conclusion, it is worth noting Principle 31 of the ALI/UNIDROIT Principles and Rules, which states:
The courts of a state that has adopted these Principles should provide assistance to the courts of any other state that is conducting a proceeding under these Principles, including the grant of protective or provisional relief and assistance in the identification, preservation, and production of evidence.
While this illustrates that the drafters have accepted the idea of direct communication between judges,[237] unfortunately they have not provided judges with much guidance in the absence of an elaboration of a system for implementation. It is hoped that young scholars will continue the project by working with judges and practitioners around the world to put together a set of guidelines and best practices which could be used as a more effective means of private dispute resolution in today’s complex international society.
[∗] DEA, Doctorat d’Etat (Université Panthéon-Sorbonne (Paris I)), LLM (Penn); Professor, Université Panthéon-Assas (Paris II). This is the text of the Sir Kenneth Bailey Memorial Lecture delivered at The University of Melbourne on 17 August 2005.
[1] It had only been established in 1966 under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966) (‘ICSID Convention’). For information about ICSID, see generally <http://www.worldbank.org/icsid>.
[2] It should be noted that even these institutions were not fully empowered since many countries (for example, France) had not accepted the right of direct recourse by their citizens.
[3] 28 USC § 1350 (1948).
[4] The literature on the Alien Tort Claims Act 28 USC § 1350 (1948) is considerable. In an earlier article, the author has examined the private international law issues stemming from civil actions for human rights violations: see Catherine Kessedjian, ‘Les Actions Civiles pour Violation des Droits de l’Homme: Aspects de Droit International Privé’ in Comité Français de Droit International Privé (ed), Travaux du Comité Français de Droit International Privé: Années 2002–2004 (2005) 151.
[5] The expression ‘alternative dispute resolution’ is not understood in the same sense everywhere. In some countries it includes arbitration, while in others arbitration is excluded. In the following discussion, ‘alternative dispute resolution’ will refer to all means of dispute resolution other than litigation in state domestic courts.
[6] See, eg, Eileen Carroll and Karl Mackie, International Mediation — The Art of Business Diplomacy (2000). For recent trends with respect to mediation throughout the world, see Nadja Alexander (ed), Global Trends in Mediation (2003).
[7] See, eg, Dominique Hascher, ‘Principes et Pratique de Procédure dans l’Arbitrage Commercial International’ (1999) 270 Recueil des Cours 52.
[8] See ALI/UNIDROIT, Principles and Rules of Transnational Civil Procedure (2004) (‘ALI/UNIDROIT Principles and Rules’). See below Part II(C) for further analysis of the project. Only the principles were adopted by both institutions; the rules remain the product of the ALI.
[9] For a discussion of the French experience, see Philippe Fouchard, Vers un Procès Civil Universel? Les Règles Transnationales de Procédure Civile de l’American Law Institute (2001). For a discussion of the German and Swiss experiences, see Gerhard Walter and Samuel Baumgartner, ‘Utility and Feasibility of Transnational Rules of Civil Procedure: Some German and Swiss Reactions to the Hazard–Taruffo Project’ (1998) 33 Texas International Law Journal 463.
[10] Baumgartner argues that the major importance of a comparative approach to transnational litigation is that it provides a means to develop better rules: Samuel Baumgartner, ‘Is Transnational Litigation Different?’ (2004) 25 University of Pennsylvania Journal of International Law 1297, 1385–90. Comparative analysis has been the major tool for the harmonisation of European law; whether it creates better rules is arguable. For a sceptical view, see Barbara Dohmann and Adrian Briggs, ‘Learning to Learn from Others in Europe in Commercial Litigation’ in Birgit Bachmann et al (eds), Grenzüberschreitungen: Beiträge zum Internationalen Verfahrensrecht und zur Schiedsgerichtbarkeit — Festschrift für Peter Schlosser zum 70 Geburtstag (2005) 161.
[11] The concept of cooperation is very often misunderstood and sometimes taken only to be a synonym for ‘assistance’: see, eg, Baumgartner, above n 10, 1312, who argues that ‘[j]udicial cooperation is the performance of a judicial act by one court on its territory upon the request and for the benefit of another’ (citing as an example Bruno Ristau, International Judicial Assistance (1984) vol 1).
[12] Investment disputes are now more often than not resolved through arbitration, either via bilateral investment treaties, multilateral agreements (such as the North American Free Trade Agreement, opened for signature 17 December 1992, 32 ILM 289 (entered into force 1 January 1994) (‘NAFTA’)) or direct ICSID arbitration. There are many concerns that arbitration — as developed in the last century for purely commercial disputes — may not be the most appropriate mechanism to decide investment disputes. Although this article is not the place to explore this issue fully, it is worth mentioning that a constitutional challenge was brought before the Ontario Superior Court of Justice in Council of Canadians v A-G (Canada) (Unreported, Ontario Superior Court of Justice, Pepall J, 8 July 2005). In that case, a Canadian anti-trade non-government organisation (‘NGO’) and the Canadian Union of Postal Workers challenged the constitutionality of the NAFTA’s authority under ch 11 of the NAFTA, arguing that the NAFTA’s grant of authority to an arbitral tribunal represented a constitutional breach. Pepall J explained, however, that the case was premature, and not based on a specific set of facts that would permit an assessment of potential harm, and therefore the record was ‘inadequate to render the determination requested by the Applicants’: at [64]. Nevertheless, the ruling suggests that it might be appropriate to challenge ch 11 by arguing that a tribunal should be required to consider the Canadian Charter of Rights and Freedoms (Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11, pt 1 (‘Charter’)) in a particular case, or that an administrative or legislative action taken by the government in response to the findings of a NAFTA panel ruling should be subject to the Charter. Pepall J further explained that arbitral tribunals have no authority to change Canadian domestic laws or practices, and their jurisdiction is limited to international law issues put before them and to the remedies provided under the NAFTA. Specifically, Pepall J wrote (at [65]) that
[n]othing in the NAFTA compels the Canadian government to amend its laws and practices. The arbitration of claims that Canada has failed to honor its treaty obligations does not affect or determine the rights of Canadians. As such, there can be no breach of the Charter that arises simply as a result of the establishment of these tribunals.
[13] The expression ‘aggregate litigation’ is used instead of the term ‘class action’ to show that the issue of collective/group actions is wider and more diverse than just the class action model. It is also the title chosen by the ALI for its new project, Principles of the Law of Aggregate Litigation. The ALI defines aggregate litigation as follows:
An aggregate lawsuit is one in which a final judicial order on the merits resolves a claim involving multiple claimants or multiple respondents, or in which the joinder of parties allows for the common disposition of overlapping issues. ... Examples of aggregate lawsuits include mass tort actions, class actions, RICO actions naming multiple defendants as conspirators, and multi-district consolidations.
ALI, Principles of the Law of Aggregate Litigation (Preliminary Draft No 2, 2005) 1.
[14] For this part of the article, I am indebted to Séverine Menétrey, a student at the Université Panthéon-Assas (Paris II) who is preparing, under our supervision, a doctoral dissertation on the subject ‘L’Amicus Curiae — Vers un Principe de Procédure Internationale?’.
[15] In the United Kingdom, it was only in 1999 that multi-party actions were introduced after Lord Woolf’s report on access to justice: Department for Constitutional Affairs, United Kingdom, Access to Justice (Final Report) (1996) (‘Woolf Report’). This type of action relies on the management skills of the new proactive judge, and on the full cooperation of lawyers.
[16] Agreement concerning the Foundation ‘Remembrance, Responsibility and the Future’, United States–Germany, 39 ILM 1298 (entered into force 17 July 2000).
[17] These cases were initiated by, amongst others, a prominent New York lawyer and professor, Burt Neuborne: see Burt Neuborne, ‘Preliminary Reflections on Aspects of Holocaust-Era Litigation in American Courts’ (2002) 80 Washington University Law Quarterly 795. See also Pierre A Karrer, ‘Mass Claims to Provide Rough Justice — The Work of the Property Claims Commission of the German Foundation “Remembrance, Responsibility and the Future”’ in Birgit Bachmann et al (eds), Grenzüberschreitungen: Beiträge zum Internationalen Verfahrensrecht und zur Schiedsgerichtbarkeit — Festschrift für Peter Schlosser zum 70 Geburtstag (2005) 329.
[18] Declaration of the Government of the Democratic and Popular Republic of Algeria concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, 20 ILM 230 (entered into force 19 January 1981).
[19] See Iran–United States Claims Tribunal <http://www.iusct.org/index-english.html>.
[20] See The United Nations Compensation Commission <http://ww