Transnational commercial litigation

A.A. 2018/2019
Insegnamento per
6
Crediti massimi
42
Ore totali
SSD
IUS/15
Lingua
Inglese
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
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

Struttura insegnamento e programma

Edizione attiva
Responsabile
IUS/15 - DIRITTO PROCESSUALE CIVILE - CFU: 6
Lezioni: 42 ore
Docente: Henke Albert
Programma
The course will provide students with basic information and knowledge about fundamental principles, legislative regimes, scholars' debates, case law on the following topics:
· Is Transnational Litigation Different? (A Journey among National Civil Procedure, Private International Law, International Law, European Law and International Arbitration)

· 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)

· National Courts and International Public Tribunals: Coordination and Conflicts

· National Courts and International Private Tribunals: Coordination and Conflicts

· Theoretical and Practical Issues on Determination of the Applicable Law in Cross Border Disputes

· Theoretical and Practical Issues on Determination of the Applicable Law in Cross Border Disputes. Second Part

· 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. European v. PIL Regime

· Practical session: Case Law Analysis and Discussion On Public Policy as a Bar to the 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 Competition Law Disputes

· Special Issues Arising Out of Litigating Cross-Border Financial Law Disputes

· Special Issues Arising Out of Litigating Cross-Border IP Law Disputes

· Special Issues Arising Out of Litigating Cross-Border Labour Law Disputes.

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.

Moot courts and internships
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.
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.
Propedeuticità
Remain valid the pre-requirements established by the academic regulation of the degree.
Prerequisiti e modalità di esame
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.
Metodi didattici
They will acquire a method on:
- Critical legal thinking
- Analysis of case law
- Solving complex legal problems by practical sessions of case analysis, discussion and moot courts
- Written and oral legal advocacy
Materiale didattico e bibliografia
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.
Periodo
Secondo semestre
Periodo
Secondo semestre
Modalità di valutazione
Esame
Giudizio di valutazione
voto verbalizzato in trentesimi
Docente/i
Ricevimento:
Giovedì ore 11.00