Transnational Commercial Litigation
A.Y. 2023/2024
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
The course aims to provide students with an overview of the principles, rules and practices governing transnational litigation in civil and commercial matters and covers, in addition to some general fundamental issues - such as access to justice, the fundamental procedural rights in the light of the jurisprudence of the ECHR and the CJEU, the determination and conflicts of jurisdiction, the applicable law, the cross-border taking of evidence, provisional measures in cross-border disputes, the recognition of foreign judgments - some specificities of cross-border litigation in relation to some substantial sectors, such as cross-border disputes in financial matters, IP law, labour law, climate disputes. A specific in-depth analysis will be dedicated to the mechanism of class action / collective redress, with particular attention to their use in cross-border disputes.
At the end of the course, students will have advanced knowledge of the following topics:
- Fundamental characteristics of transnational civil and commercial litigation
- Role and relevance of fundamental procedural rights in the light of the ECHR and CJEU jurisprudence
- Theoretical and practical problems in applying "domestic" notions and concepts (such as res judicata, time bar imitations, the notion of public order...) to transnational disputes
- Theoretical and practical problems arising out of the coordination and conflicts between adjudicatory bodies of different nature
They will acquire a study and work method in relation to:
- legal thinking in a critical manner
- analysis of the jurisprudence
- solving complex legal problems through practical sessions of case analysis, thesis presentation, class discussions and simulation
- written and oral legal advocacy
At the end of the course, students will have advanced knowledge of the following topics:
- Fundamental characteristics of transnational civil and commercial litigation
- Role and relevance of fundamental procedural rights in the light of the ECHR and CJEU jurisprudence
- Theoretical and practical problems in applying "domestic" notions and concepts (such as res judicata, time bar imitations, the notion of public order...) to transnational disputes
- Theoretical and practical problems arising out of the coordination and conflicts between adjudicatory bodies of different nature
They will acquire a study and work method in relation to:
- legal thinking in a critical manner
- analysis of the jurisprudence
- solving complex legal problems through practical sessions of case analysis, thesis presentation, class discussions and simulation
- written and oral legal advocacy
Lesson period: Second semester
Assessment methods: Esame
Assessment result: voto verbalizzato in trentesimi
Single course
This course can be attended as a single course.
Course syllabus and organization
Single session
Responsible
Lesson period
Second semester
Course syllabus
In an increasingly globalized world, lawyers are more and more often confronted with the resolution of international commercial disputes through litigation in national courts. This course will highlight the main issues that arise uniquely in international litigation (such as determination jurisdiction, parallel and related proceedings, class actions, recognition and enforcement of foreign judgments, the relations between national and supranational procedures, and between judicial and arbitration proceedings), by referring to the applicable international conventions and multilateral treaties, European Regulations, pure transnational principles and rules (such as lex mercatoria) and non-binding instruments (soft law), as well as to the most relevant national case law and to examples drawn from civil and common law jurisdictions.
The course is structured in four parts:
First Part - Jurisdictional and Procedural Issues. Relations and Conflicts between National and Supranational Courts and Tribunals
Access to justice in cross-border litigation
Fundamental procedural rights, in light of the ECtHR's and the CJEU's recent case law
Determination and conflicts of jurisdiction in cross-border disputes under Brussels I bis Reg. and 2005 Hague Convention on Choice of Court Agreements
Taking of evidence in cross-border litigation
Provisional measures in cross-border litigation
Recognition and enforcement of foreign judgments (the effect of res judicata in transnational disputes; public policy as a bar to recognition)
Preliminary ruling procedure under art. 267 TFEU: between fostering EU integration process, protecting national autonomy and balancing conflicting needs
Individual application to the European Court of Human Rights and the implementation of the European Convention on Human Rights at national level
The dialogue between national courts and the European Court of Human Rights in light of the ECtHR's new advisory jurisdiction under Protocol No. 16
Effects of the European Court of Human Rights' judgments on domestic res iudicata in civil (and administrative) matters. The issue of third parties
Relationships and conflicts between national courts and private commercial tribunals under EU law
Relationships and conflicts between intra-EU investment arbitration and EU law
Second Part - Class Actions and Collective Redress
Class actions and collective redress: a general and comparative overview
EU Representative Actions Directive 2020/1828 for the protection of the consumers and its implementation at national level
Collective redress mechanisms and EU competition law
Collective redress mechanisms in environmental protection
Collective redress mechanisms and the protection of human rights
Third part - Legal Advocacy
Theoretical and practical hints on written and oral legal advocacy
Practical session on written and oral legal advocacy
Four Part - Cross-Border Procedural Issues in Certain Substantive Law Sectors
The Landscape of International Commercial Courts
Litigating cross-border financial law disputes in Europe
Litigating cross-border IP law disputes in Europe - The Unified Patent Court
Climate Change Litigation - separation of powers and causes of action; different fora and their relationships; the issue of causation and the burden of proof; the issue of insurance coverage for companies' liability risks
The course is structured in four parts:
First Part - Jurisdictional and Procedural Issues. Relations and Conflicts between National and Supranational Courts and Tribunals
Access to justice in cross-border litigation
Fundamental procedural rights, in light of the ECtHR's and the CJEU's recent case law
Determination and conflicts of jurisdiction in cross-border disputes under Brussels I bis Reg. and 2005 Hague Convention on Choice of Court Agreements
Taking of evidence in cross-border litigation
Provisional measures in cross-border litigation
Recognition and enforcement of foreign judgments (the effect of res judicata in transnational disputes; public policy as a bar to recognition)
Preliminary ruling procedure under art. 267 TFEU: between fostering EU integration process, protecting national autonomy and balancing conflicting needs
Individual application to the European Court of Human Rights and the implementation of the European Convention on Human Rights at national level
The dialogue between national courts and the European Court of Human Rights in light of the ECtHR's new advisory jurisdiction under Protocol No. 16
Effects of the European Court of Human Rights' judgments on domestic res iudicata in civil (and administrative) matters. The issue of third parties
Relationships and conflicts between national courts and private commercial tribunals under EU law
Relationships and conflicts between intra-EU investment arbitration and EU law
Second Part - Class Actions and Collective Redress
Class actions and collective redress: a general and comparative overview
EU Representative Actions Directive 2020/1828 for the protection of the consumers and its implementation at national level
Collective redress mechanisms and EU competition law
Collective redress mechanisms in environmental protection
Collective redress mechanisms and the protection of human rights
Third part - Legal Advocacy
Theoretical and practical hints on written and oral legal advocacy
Practical session on written and oral legal advocacy
Four Part - Cross-Border Procedural Issues in Certain Substantive Law Sectors
The Landscape of International Commercial Courts
Litigating cross-border financial law disputes in Europe
Litigating cross-border IP law disputes in Europe - The Unified Patent Court
Climate Change Litigation - separation of powers and causes of action; different fora and their relationships; the issue of causation and the burden of proof; the issue of insurance coverage for companies' liability risks
Prerequisites for admission
There are no specific prerequisites for attending the course, other than those generally provided for by the academic regulation of the master degree. However, a very good command of the English language (both written and oral), as well as having passed the exams of Civil Procedure and International Law are highly recommended.
Teaching methods
Each topic of the course will be addressed not only from a theoretical-dogmatic point of view, but also through the lens of the most relevant case law, both arbitral and judicial, both Italian and foreign, as well as supranational.
The course adopts a practical-oriented approach. In addition to frontal lectures and seminars, students will be actively involved by presenting scholarly papers, reporting cases to the class, discussing them, working in groups and taking part to moot courts and simulations.
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" (Inter-University Moot Competition in Private International Law) [Paris], the most prestigious international legal competition (in English) in the field of civil and commercial cross-border litigation, among ca 30 15 Universities from all over the world - https://www.paxmoot.eu/ e https://sites.unimi.it/ArbitrationMoots/pax/), as well as for professional internships abroad as part of the EU-funded Erasmus Placement program.
The course adopts a practical-oriented approach. In addition to frontal lectures and seminars, students will be actively involved by presenting scholarly papers, reporting cases to the class, discussing them, working in groups and taking part to moot courts and simulations.
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" (Inter-University Moot Competition in Private International Law) [Paris], the most prestigious international legal competition (in English) in the field of civil and commercial cross-border litigation, among ca 30 15 Universities from all over the world - https://www.paxmoot.eu/ e https://sites.unimi.it/ArbitrationMoots/pax/), as well as for professional internships abroad as part of the EU-funded Erasmus Placement program.
Teaching Resources
The reading and studying material will mainly consist in the slides used during the course and in further material (mostly scholarly papers and judicial/arbitral decisions) posted on Ariel by the teacher and discussed during the class.
The texts below can be used to possibly integrate or deepen topics covered during the class:
· R. Fentiman, International Commercial Litigation, 2nd ed., Oxford University Press, 2015
· T.C. Hartley, International Commercial Litigation: Text, Cases and Materials on Private International Law, 2nd ed., Cambridge University Press, 2015
The texts below can be used to possibly integrate or deepen topics covered during the class:
· R. Fentiman, International Commercial Litigation, 2nd ed., Oxford University Press, 2015
· T.C. Hartley, International Commercial Litigation: Text, Cases and Materials on Private International Law, 2nd ed., Cambridge University Press, 2015
Assessment methods and Criteria
Attendance to the course is compulsory.
Only students who attend at least 80% 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 (30%), combined with the mark obtained in the final written test (lasting about 2 hours), which will consist of: a) 20 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.
Only students who attend at least 80% 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 (30%), combined with the mark obtained in the final written test (lasting about 2 hours), which will consist of: a) 20 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.
Educational website(s)
Professor(s)