Transnational commercial litigation

A.A. 2019/2020
Crediti massimi
Ore totali
Obiettivi formativi
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
Risultati apprendimento attesi
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
Programma e organizzazione didattica

Edizione unica

Secondo semestre
The course will provide students with basic information and knowledge about fundamental principles, legislative regimes, scholars' debates, case law on the topics, such as: access to Courts by Foreign Litigants (Legal Aid; Third-Party Funding; Sovereign
Immunity and Act of State Doctrine); Fundamental Procedural Rights in light of the ECHR and CJEU case law; Determining and Declining Jurisdiction in Cross-Border Contractual Disputes; Issues and Praxis; the 2005 Hague Convention on Choice of Court Agreements; Conflicts of Jurisdiction (forum non conveniens, lis pendens, antisuit injunctions); Default judgments and the rights of defence in Brussels I bis Regulation;
Coordination and Conflicts between National Courts and International Public Tribunals, and between National Courts and International Private Tribunals: Coordination and Conflicts; Theoretical and Practical Issues on Determination of the Applicable Law in Cross Border Disputes; Cross border service of documents and cross border taking of evidence; Preserving Judgement Assets and Enforcing Judgement Debts in Transnational Commercial Litigation; Recognition and Enforcement of Foreign Judicial Decisions; the effect of res judicata in transnational disputes (the determination of its objective and subjective scope; the defense of abuse of process); Special Issues Arising Out of Litigating Cross-Border: Commercial Contracts, Competition Law Disputes, Financial Law Disputes, IP Law Disputes, Labour Law Disputes; Collective Redress Mechanism in a Cross-Border Dimension; "Second generation" of EU Regulation on procedural law
for cross-border cases; UNIDROIT/ELI PROJECT on European Rules of Civil Procedure; The rise of International Commercial Courts in Europe; Cross-border litigation and Brexit.
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 held by experienced specialists, 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.
Informazioni sul programma
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.

Erasmus students:
No special or different programmes are provided for Erasmus students.
According to didactic regulation of the Course of Law, Private law, Constitutional law. Remain valid the pre-requirements established by the academic regulation of the degree
The attendance to the course is compulsory.
Only students who attend at least 80% of the course are admitted to take the final exam.
The final mark (max 30/30) will consist in an overall assessment of the activities carried out by each student throughout the course combined with the mark obtained in the final written test, composed as follows (multiple choice questions; short essays; problems). Those students who do not accept that final mark can register for an oral colloquium over the entire program during the official exam sessions.
Materiale di riferimento
Lectures will be mainly based on specific reading materials indicated prior to each lesson. 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.
Lezioni: 42 ore
Per il tutoraggio in diritto internazionale ogni mercoledì dalle 12.30 alle 13.30
Dipartimento di diritto pubblico italiano e sovranazionale - Istituto di diritto internazionale
Giovedì ore 11.00
Università degli Studi di Milano - Istituto di Diritto Processuale Civile - 4to piano - Via Festa del Perdono 3 - 20122 Milano