Transnational commercial litigation
A.Y. 2019/2020
Learning objectives
Aims of the course
· Acquiring knowledge of the principles, rules and praxis governing transnational litigation in civil and commercial matters
· Developing the skills to apply the acquired knowledge to civil and commercial disputes deferred to domestic and international courts and tribunals
· Making autonomous judgments on legal issues related to transnational commercial litigation, in general and in respect of special fields (cross-border financial, competition, IP and labour law disputes)
· Acquiring basic knowledge of the principal tools of written and oral legal advocacy, including the ability to convincingly argue a case, to draft a legal memorandum, to plead in front of a court
· Acquiring knowledge of the principles, rules and praxis governing transnational litigation in civil and commercial matters
· Developing the skills to apply the acquired knowledge to civil and commercial disputes deferred to domestic and international courts and tribunals
· Making autonomous judgments on legal issues related to transnational commercial litigation, in general and in respect of special fields (cross-border financial, competition, IP and labour law disputes)
· Acquiring basic knowledge of the principal tools of written and oral legal advocacy, including the ability to convincingly argue a case, to draft a legal memorandum, to plead in front of a court
Expected learning outcomes
At the end of the course, students will have an advanced knowledge of:
- Fundamental features of litigating transnational civil and commercial disputes
- Fundamental Procedural Rights in light of the ECHR and CJEU case law
- Theoretical and practical problems in applying domestic notions and concepts (such as res iudicata, public policy ) to transnational disputes
- Theoretical and practical problems arising out of the overlap between adjudicatory bodies of different character (judicial courts, arbitral tribunals, supranational courts based on international treaties or conventions).
- Special procedural issues in litigating cross border disputes in key economic areas, such as competition, financial, IP and labour law disputes
- Fundamental features of litigating transnational civil and commercial disputes
- Fundamental Procedural Rights in light of the ECHR and CJEU case law
- Theoretical and practical problems in applying domestic notions and concepts (such as res iudicata, public policy ) to transnational disputes
- Theoretical and practical problems arising out of the overlap between adjudicatory bodies of different character (judicial courts, arbitral tribunals, supranational courts based on international treaties or conventions).
- Special procedural issues in litigating cross border disputes in key economic areas, such as competition, financial, IP and labour law disputes
Lesson period: Second semester (In case of multiple editions, please check the period, as it may vary)
Assessment methods: Esame
Assessment result: voto verbalizzato in trentesimi
Course syllabus and organization
Single session
Responsible
Lesson period
Second semester
Course syllabus
Programma (Course Syllabus)
The course is designed to acquaint students (who are generally interested in international business transactions and would like to deepen their knowledge and intend to specialize in this field) with a comprehensive view of the principles, laws, rules and praxis which govern transnational litigation in civil and commercial matters and will cover, in addition to the general key-issues (such as access to court by foreign litigants, determination and conflicts of jurisdiction, applicable law, cross border taking of evidence, preserving assets in transnational litigation, recognition of foreign judgments), the peculiarity of litigating cross-border disputes in some key and strategic areas, such as cross-border competition, financial, IP and labour law disputes.
The course will provide students with basic information and knowledge about fundamental principles, legislative regimes, scholars' debates, case law on the main issues related to cross-border litigation. Among the topics dealt with during the course:
- access to courts by foreign litigants (notion of access to courts; national, European and international regime; obstacles to access to courts; tools to foster access to courts - legal aid, third-party funding; sovereign immunity and act of state doctrine);
- fundamental procedural rights in light of the ECHR and the CJEU case law (notions of "dispute", "arguable right", "civil right", "right to court", "tribunal", "independence and impartiality", "fariness", the adversarial principle, the equality of arms, the reasoning of the decisions, the publich hearing, the notion of "reasonable length of the proceedings");
- interim measures of protection (preserving judgement assets);
- cross-border taking of evidence;
- special procedural issues arising out of litigating cross-border IP law disputes;
- special procedural issues arising out of litigating cross-border labour law disputes;
- special procedural issues arising out of litigating cross-border consumer law disputes;
- special procedural issues arising out of litigating cross-border family law disputes;
- collective redress in a cross-border dimension (a comparative perspective; the state of art in Europe; collective redress in consumers' and environmental disputes)
- focus on ongoing issues and trends (the rise of international commercial courts in Europe; cross-border litigation and Brexit)
Programma del Modulo all'interno del corso (Module's Syllabus)
- jurisdictional conflicts in a transnational dimension (determining and declining jurisdiction in cross-border contractual disputes within the context of Brussels I bis Regulation; choice of court agreements; lis pendens, forums non conveniens, related actions);
- recognition and enforcement of foreign judicial judgments (the effect of res judicata in transnational disputes - the determination of its objective and subjective scope; the defense of abuse of process -; the notion and praxis of public policy);
The course is designed to acquaint students (who are generally interested in international business transactions and would like to deepen their knowledge and intend to specialize in this field) with a comprehensive view of the principles, laws, rules and praxis which govern transnational litigation in civil and commercial matters and will cover, in addition to the general key-issues (such as access to court by foreign litigants, determination and conflicts of jurisdiction, applicable law, cross border taking of evidence, preserving assets in transnational litigation, recognition of foreign judgments), the peculiarity of litigating cross-border disputes in some key and strategic areas, such as cross-border competition, financial, IP and labour law disputes.
The course will provide students with basic information and knowledge about fundamental principles, legislative regimes, scholars' debates, case law on the main issues related to cross-border litigation. Among the topics dealt with during the course:
- access to courts by foreign litigants (notion of access to courts; national, European and international regime; obstacles to access to courts; tools to foster access to courts - legal aid, third-party funding; sovereign immunity and act of state doctrine);
- fundamental procedural rights in light of the ECHR and the CJEU case law (notions of "dispute", "arguable right", "civil right", "right to court", "tribunal", "independence and impartiality", "fariness", the adversarial principle, the equality of arms, the reasoning of the decisions, the publich hearing, the notion of "reasonable length of the proceedings");
- interim measures of protection (preserving judgement assets);
- cross-border taking of evidence;
- special procedural issues arising out of litigating cross-border IP law disputes;
- special procedural issues arising out of litigating cross-border labour law disputes;
- special procedural issues arising out of litigating cross-border consumer law disputes;
- special procedural issues arising out of litigating cross-border family law disputes;
- collective redress in a cross-border dimension (a comparative perspective; the state of art in Europe; collective redress in consumers' and environmental disputes)
- focus on ongoing issues and trends (the rise of international commercial courts in Europe; cross-border litigation and Brexit)
Programma del Modulo all'interno del corso (Module's Syllabus)
- jurisdictional conflicts in a transnational dimension (determining and declining jurisdiction in cross-border contractual disputes within the context of Brussels I bis Regulation; choice of court agreements; lis pendens, forums non conveniens, related actions);
- recognition and enforcement of foreign judicial judgments (the effect of res judicata in transnational disputes - the determination of its objective and subjective scope; the defense of abuse of process -; the notion and praxis of public policy);
Prerequisites for admission
There are no specific prerequisites for admission, other than those generally provided for by the academic regulation of the degree. However, a very good command of the English language (both written and oral) as well as having passed the exams of Civil Procedure, International Law and Private International Law are highly recommended.
Teaching methods
The course will refer to international conventions and multilateral treaties pertaining to the conduct of transnational litigation, to examples drawn from other civil and common law jurisdictions, as well as to pure transnational principles and rules (such as lex mercatoria) and non-binding instruments (soft law), always emphasizing practical approaches and solutions to concrete problems.
Each topic dealt with within the course will be addressed not only from a theoretical point of view, but also through the lens of the most relevant arbitral and judicial case law.
The course follows a case - method approach. Aside frontal lessons and seminars, students will be requested to actively participate by reporting cases to the class, discussing them, working in groups and taking part to moot courts and simulations.
The attendance to the course is positively assessed in light of the students' recruitment process for international legal competitions sponsored by our University (in particular the PAX Moot, i.e. the specialized moot court competition focused on private international law issues, organized by Science Po, Paris: https://paxmoot.com/), as well as for the professional internships abroad within the Erasmus Placement Programme.
Each topic dealt with within the course will be addressed not only from a theoretical point of view, but also through the lens of the most relevant arbitral and judicial case law.
The course follows a case - method approach. Aside frontal lessons and seminars, students will be requested to actively participate by reporting cases to the class, discussing them, working in groups and taking part to moot courts and simulations.
The attendance to the course is positively assessed in light of the students' recruitment process for international legal competitions sponsored by our University (in particular the PAX Moot, i.e. the specialized moot court competition focused on private international law issues, organized by Science Po, Paris: https://paxmoot.com/), as well as for the professional internships abroad within the Erasmus Placement Programme.
Teaching Resources
Lectures will be mainly based on specific reading materials indicated prior to each lesson (scholarly papers, case law, reports, research studies). Here below some suggested texts, which might be referred to for the preparation of the exam.
· R. Fentiman, International Commercial Litigation, 2nd ed., Oxford University Press, 2015;
· X.E. Kramer, C.H. van Rhee, Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012.
· R. Fentiman, International Commercial Litigation, 2nd ed., Oxford University Press, 2015;
· X.E. Kramer, C.H. van Rhee, Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012.
Assessment methods and Criteria
The attendance to the course is compulsory.
Only students who attend at least 75% of the course are admitted to take the final exam.
The final mark (max 30/30 cum laude) will consist in an overall assessment of the participation and the activities carried out by each student throughout the course combined with the mark obtained in the final written test (2 hours-long), which will consist on: a) 15 multiple choice questions; b) 2 short essays; c) the resolution of a legal problem.
Those students who do not accept the final mark can undergo an oral colloquium on the overall program of the course, during the official exam sessions.
Only students who attend at least 75% of the course are admitted to take the final exam.
The final mark (max 30/30 cum laude) will consist in an overall assessment of the participation and the activities carried out by each student throughout the course combined with the mark obtained in the final written test (2 hours-long), which will consist on: a) 15 multiple choice questions; b) 2 short essays; c) the resolution of a legal problem.
Those students who do not accept the final mark can undergo an oral colloquium on the overall program of the course, during the official exam sessions.
IUS/15 - CIVIL PROCEDURAL LAW - University credits: 6
Lessons: 42 hours
Professors:
Grassi Michele, Henke Albert
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Professor(s)