Transnational commercial litigation

A.Y. 2020/2021
6
Max ECTS
42
Overall hours
SSD
IUS/15
Language
English
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
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
Course syllabus and organization

Single session

Responsible
Lesson period
Second semester
The teaching, if not carried out "in the presence", will be implemented using the two platforms Ariel and Microsoft Teams. In particular, on Ariel all the relevant material of the course will be uploaded, and it will be accessible and downloadable by each student; on the same platform the function "Forum" will be activated, which consistst in an interactive tool to facilitate communication between the teaching staff and the students on any issue concerning the organization and the contents of the course. The lessons will in principle be held in "synchronous" mode, ie through online lessons on the Microsoft Teams platform, possibly alternated with pre-recorded lessons, uploaded on the same platform ("asynchronous" mode). The teachers are always reachable through their respective institutional email.
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), also the procedural and procedural peculiarities of litigating cross-border disputes in some key and strategic areas, such as competition law, banking and financial law, industrial property law, law of consumers, labor law and family law.
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 justice by foreign litigants (notion of access to justice; national, European and international regime; obstacles to access to justice; tools to facilitate access to courts - free legal aid, third-party funding; immunity of States);
- fundamental procedural rights in light of the ECHR's and the CJEU's case law (notions of "dispute", "arguable right", "civil right", "right to court", "tribunal", "independence and impartiality", "fairness", 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;
- main procedural issues relating to transnational litigation in the field of industrial property, competition, financial law, employment, family, consumers-
- collective redress in a cross-border dimension (a comparative perspective; the state of art in Europe; collective redress in consumers' and environmental disputes)
- recent developments and future challenges (the rise of international commercial courts in Europe; cross-border litigation and Brexit).

Module program within the course (Module program
- conflicts of jurisdiction 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, the doctrine of 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 attending the course, 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 essentially be based on the study and analysis of international conventions and multilateral treaties relating to the conduct of transnational disputes, on examples drawn from other civil law and common law jurisdictions, as well as on transnational principles and rules (such as the lex mercatoria) and non-binding instruments (soft law), always adopting a critical and practical approach.
Each topic of the course will be addressed not only from a theoretical-dogmatic point of view, but also through the lens of the case law, both arbitral and judicial, both Italian and foreign, as well as supranational.
The course adopts a practical-oriented approach. In addition to lectures and seminars, students will be actively involved in case presentations to the class, in joint discussions, in group work and in simulations of arbitration and jurisdictional proceedings.
The positive and active attendance of the course will also be an element of assessment within the selection procedures for taking part in international legal competitions sponsored by our University (in particular the PAX Moot, an international competition - moot court - in the field of private international law and transnational litigation, organized by the University of Science Po, Paris: https://paxmoot.com/), as well as for professional internships abroad as part of the EU-funded Erasmus Placement program.
Teaching Resources
Lectures (and the exam) will be mainly based on specific reading materials circulated during the course (scholarly papers, arbitral and judicial case law, reports of national and int'l organizations, associations and institutions, research studies).
Students who intend to deepen their knowledge on the topics dealt with during the class can avail of the following referenes:
· 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
Attendance to the course is compulsory.
Only students who attend at least 75% of the course's lessons are allowed to take the final exam.
The final mark (maximum 30/30 cum laude) will consist of an overall assessment of the participation and activities carried out by each student during the course, combined with the mark obtained in the final written test (lasting about 2 hours), which will consist of: a) 15 multiple choice questions; b) 2 open questions (or "short essays"; c) the resolution of a legal problem.
Students who do not accept the final grade can take an oral colloquium, during the dates of the official exam sessions, on the entire course program. The same applies to non-attending students, who must bring the entire course program to the oral colloquium.
IUS/15 - CIVIL PROCEDURAL LAW - University credits: 6
Lessons: 42 hours