Harmonizing jurisdiction in transnational cases: a deep comparative inquiry

ABSTRACTWhat is the nature of legal rules, and how do we discern whether they can be harmonized? My thesis seeks to answer these questions through a comparative analysis of civil law and common law jurisdiction rules in transnational cases. I develop a methodology for comparing legal rules that defines rules by their history, epistemology and cultural context. I seek to discover the legal traditions' essential components linked to their jurisdiction rules. I hypothesize that rules rooted to incompatible essential components are likely not capable of harmonization. Legal communities deeply value their tradition's essential components, which arise from unique historical events that shape the tradition. Further, a tradition's essential components affect allowable legal reasoning structures used by judges, and the structure of legal rules generally. When applying this methodology to personal jurisdiction rules, two essential components emerge. The first is a differing view regarding flexibility and judicial discretion on the one hand, and formalism and predictability on the other. Common law jurisdiction rules arose from English equity courts' unfettered freedom to create substantive law and remedies. They are predominately judge-made multi-factor tests derived from inherent judicial discretion to ensure equitable outcomes. Examples are forum non conveniens, anti-suit injunctions, and U.S. courts' minimum contacts test. Conversely, civil law jurisdiction rules are straightforward code provisions, linked to historical limitations on the judiciary predictable rules, which guarantee that litigants' rights are observed. This essential component is manifested in legal reasoning prohibiting overt judicial discretion. A second essential component also emerged. The common law accepts a relatively aggressive judicial power. This power is tied to the historical link between the Crown and English chancellors, as well as concurrent jurisdiction in English and U.S. domestic courts prior to the merger of equity and common law courts. This royalty-based judicial power resulted in tag jurisdiction, anti-suit injunctions and conditional forum non conveniens stays, all of which the civil law rejects. The civil law favors a more passive judicial role, also linked to mistrust of the judiciary. These implicit assumptions regarding the nature of judges are not overtly apparent, but appear beneath the surface as salient underlying tenets. Several attempts at harmonizing personal jurisdiction rules have failed in recent years. The European Court of Justice has prohibited English courts' use of discretionary jurisdiction doctrines, resulting in vocal opposition by the English legal community. The negotiations leading up to the Choice of Court Convention, which originally envisioned global harmonization of jurisdiction rules, ended in discord between U.S. and EU delegates. These two essential components contributed to these harmonization failures. They further explain why harmonization based on Quebec's forum non conveniens statutory provision or the Transnational Principles of Civil Procedure is unlikely. In the final chapter, this thesis asks the peripheral question of whether harmonization where a forum selection clause exists is occurring, and if so, whether the essential components methodology can explain such harmonization. Both the civil law and common law presume that such clauses are valid, relying on the principle of party autonomy. Despite this commonality, judges in the two traditions continue to utilize different legal reasoning when considering a forum selection clause's validity. Like harmonization of jurisdiction approaches where an arbitration agreement exists, it is likely that harmonization through a common framework, such as the Choice of Court Convention, is possible if a common essential component exists, despite continued divergence in approaches.

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