The Brains and Brawn of Cross-Border Disputes

In the era of splintered and diffuse information, a comprehensive and reliable desk reference is a valuable asset. International Aspects of U.S. Litigation, A Practitioner’s Deskbook (American Bar Association 2017), edited by James E. Berger, is precisely that kind of resource. This book is a comprehensive, thoroughly-researched, and user-friendly reference guide that will strengthen the library of lawyers involved in cross-border disputes or who have non-U.S. clients that may find themselves involved in U.S. litigation proceedings.

Berger’s book is an elegant combination of brains and brawn, containing over 1,000 dense pages in two volumes. It includes a detailed Table of Contents and an epilogue List of Cases that permits the type of targeted information search normally reserved only for electronic resources. And the seemingly page-by-page Table of Contents makes up for the puzzling absence of a word or topic index.

The book has an intuitive and logical flow. It starts with a discussion on the conceptual underpinnings of U.S. litigation (e.g., personal and subject matter jurisdiction, forum selection, venue), transitions to the practical aspects of a lawsuit (e.g., service of process, choice of law, discovery), and then discusses the effect and enforcement of judgments. All of this discussion is appropriately contextualized to international disputes.

The content is heavily footnoted with citations and substantive parenthetical descriptions of relevant cases and commentary, although the appearance of legal decisions from outside the U.S. is sparse. As to certain topics, the book features hypothetical scenarios (or summaries of actual case facts) to illuminate the applicable rules and teachings, in a manner similar to what is found in the various Restatements of Law. The book is also populated with “Practice Pointers,” which highlight practical aspects of a particular issue or caution against hidden pitfalls. Again, Berger’s core achievement is the presentation of legal information in a way that is usable and real.

Berger and his contributors dig deep into sticky and recurring challenges in cross-border litigation, including service of process on non-U.S. parties, obtaining discovery from non-U.S. parties, and the varied treatment of attorney-client communications in non-U.S. jurisdictions. On these issues, Berger includes a fulsome analysis of the Hague Convention (both as it relates to service of process and to discovery), the Inter-American Convention, and the elements of a proper letter of request or letters rogatory. Berger follows with a comprehensive discussion about determining the best mechanism for taking non-U.S. discovery in a particular case, and includes commentary on several jurisdictions where cross-border discovery might be most frequent (e.g., France, United Kingdom, China, Japan). In this regard, the book meets its promise of being a “deskbook” for a lawyer’s use as a practical tool.

The penultimate section of the book covers state and federal arbitration law, with a focus on the Federal Arbitration Act, and includes separate discussions about proceedings under the New York Convention and the Panama Convention. This section also includes content on how to compel arbitration and the use of judicial proceedings to enforce an arbitration award. Appropriately, the book does not discuss the rules and processes of the various administrative arbitral groups, such as the ICC or ICSID, focusing instead on the legal and procedural paths to get to that point.

The final section is devoted to three common types of international disputes: lawsuits against sovereign entities, cross-border bankruptcy proceedings, and international trade claims. This section focuses primarily on the statutes that counsel involved in such disputes should know and understand. And as with the other topics covered, this section includes extensive citation to the key legal decisions and commentary that explain how those statutes operate.

Any litigator involved in cross-border disputes should have Berger’s book handy. But it is essential for U.S. litigators who need to understand the impact of U.S. procedures on litigants residing elsewhere. Berger’s book may have its greatest value in the hands of non-U.S. lawyers who find their non-U.S. clients litigating in U.S. courts. That lawyer now has a reference guide for potentially confusing (and arguably arcane) concepts in federal court jurisdiction and procedure, choice of law, discovery, and alternative dispute resolution, among numerous other topics. The book offers a primer on the basics of these legal issues, but also delves into aspects that might be entirely new to a non-U.S. litigator, such as abstention, comity, and the methods of and limitations on enforcing a judgment.

Berger has enlisted high-quality and experienced contributors to create a rare find: An immediate and comprehensive resource for real-world international litigation matters. And one that can sit on a bookshelf within an arm’s reach, rather than exist only as a computer shortcut icon. For cross-border litigators who want a reference guide that might obviate the need and cost of hours of online searching, Berger’s book should be at the top of the list.