PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE

The ALI (American Law Institute) and UNIDROIT (the International Institute for the Unification of Private Law) are preeminent organizations working together toward the clarification and advancement of the procedural rules of law. Recognizing the need for a “universal” set of procedures that would transcend national jurisdictional rules and facilitate the resolution of disputes arising from transnational commercial transactions, Principles of Transnational Civil Procedure was launched to create a set of procedural rules and principles that would be adopted globally. This work strives to reduce uncertainty for parties that must litigate in unfamiliar surroundings and to promote fairness in judicial proceedings. As recognized standards of civil justice, the Principles of Transnational Civil Procedure can be used in judicial proceedings as well as in arbitration. The result is a work that significantly contributes to the promotion of a universal rule of procedural law.

The American Law Institute was organized in 1923 following a study conducted by a group of prominent American judges, lawyers, and law professors. Their recommendation that a lawyers’ organization be formed to improve the law and its administration led to the creation of The American Law Institute.

UNIDROIT was founded in 1926 as a specialized agency of the League of Nations. It exists as an independent intergovernmental organization on the basis of a multilateral agreement, the UNIDROIT Statute. Its purpose is to study needs and methods for modernizing, harmonizing, and coordinating private law between states and groups of states and to prepare legislative texts for consideration by governments.

ALI/UNIDROIT Principles of Transnational Civil Procedure

As Adopted and Promulgated

By

The American Law Institute

At Washington, D.C., U.S.A.

May 2004

and By

UNIDROIT

At Rome, Italy

April 2004

CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
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www.cambridge.org
Information on this title: www.cambridge.org/9780521855013

© 2006 The American Law Institute (entire work)
© 2006 UNIDROIT (“Principles” only)

This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press or The American Law Institute.

First published 2006

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication Data

Principles of transnational civil procedure / American Law
Institute, UNIDROIT.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-521-85501-3 (hardback)
ISBN-10: 0-521-85501-2 (hardback)
1. Civil procedure. 2. Judicial assistance. 3. Conflict of laws – Civil procedure.
I. American Law Institute. II. International Institute for the Unification of
Private Law. III. Title.
K2205.P75    2005
347^′.05 – dc22    2005018255

ISBN-13 978-0-521-85501-3 hardback
ISBN-10 0-521-85501-2 hardback

Cambridge University Press has no responsibility for
the persistence or accuracy of URLs for external or
third-party Internet Web sites referred to in this publication
and does not guarantee that any content on such
Web sites is, or will remain, accurate or appropriate.

THE AMERICAN LAW INSTITUTE

OFFICERS^†
Roswell B. Perkins, Chair of the Council
Michael Traynor, President
Roberta C. Ramo, 1st Vice President
Allen D. Black, 2nd Vice President
Bennett Boskey, Treasurer
Susan Frelich Appleton, Secretary
Lance Liebman, Director
Elena A. Cappella, Deputy Director
Michael Greenwald, Deputy Director

UNIDROIT
INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF PRIVATE LAW

LIST OF MEMBER STATES

March 2004

THE UNIDROIT GOVERNING COUNCIL (2004–2008)

EXECUTIVE OFFICERS UNIDROIT

BERARDINO LIBONATI, President
HERBERT KRONKE, Secretary-General
WALTER RODINO, Deputy Secretary-General

PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE

REPORTERS
^*GEOFFREY C. HAZARD, JR., University of Pennsylvania Law School, Philadelphia, Pennsylvania
MICHELE TARUFFO, University of Pavia, Pavia, Italy

ASSOCIATE REPORTER
^**ANTONIO GIDI, Salvador, Brazil; University of Houston Law Center, Houston, Texas

U.S. ADVISERS^***
JOHN J. BARCELO, III, Cornell Law School, Ithaca, New York
JAMES J. BROSNAHAN, San Francisco, California [from 2000]
STEPHEN B. BURBANK, University of Pennsylvania Law School, Philadelphia, Pennsylvania
JEROME A. COHEN, New York, New York
GEORGE W. COOMBE, Jr., San Francisco, California
EDWARD H. COOPER, The University of Michigan Law School, Ann Arbor, Michigan
SHELDON H. ELSEN, New York, New York [from 1999]
JAMIE S. GORELICK, Washington, District of Columbia
PHILIP L. GRAHAM, JR., New York, New York
CONRAD K. HARPER, New York, New York
FRIEDRICH K. JUENGER, University of California at Davis School of Law, Davis, California [deceased 2001]
MARY KAY KANE, University of California, Hastings College of the Law, San Francisco, California
BENJAMIN KAPLAN, Harvard University Law School, Cambridge, Massachusetts [from 1999]
HAROLD HONGJU KOH, Yale Law School, New Haven, Connecticut
STEVEN J. LABENSKY, Phoenix, Arizona [to 2000]
ANDREAS F. LOWENFELD, New York University School of Law, New York, New York
JOSEPH T. MCLAUGHLIN, New York, New York
DAVID W. RIVKIN, New York, New York
LEE H. ROSENTHAL, United States District Court for the Southern District of Texas, Houston, Texas
VANESSA RUIZ, District of Columbia Court of Appeals, Washington, District of Columbia
ANTHONY J. SCIRICA, United States Court of Appeals for the Third Circuit, Philadelphia, Pennsylvania [from 2002]
PETER D. TROOBOFF, Washington, District of Columbia
DETLEV F. VAGTS, Harvard University Law School, Cambridge, Massachusetts
DIANE P. WOOD, United States Court of Appeals for the Seventh Circuit, Chicago, Illinois

INTERNATIONAL ADVISERS^*
BRYAN BEAUMONT, Federal Court of Australia, Sydney, Australia
ANDREW S. BELL, Sydney, Australia
FEDERICO CARPI, International Association of Procedural Law, Bologna, Italy
FEI ZHONGYI, Supreme Court of China, Beijing, China [from 2001]
RICHARD FENTIMAN, Queens' College, University of Cambridge, Cambridge, England
PETER GILLES, Johann Wolfgang Goethe-Universität Frankfurt, Frankfurt, Germany
DAVID GODDARD, Wellington, New Zealand
LORD GOLDSMITH, Q.C., Attorney General for England and Wales, London, England
STEPHEN R. GOLDSTEIN, Hebrew University of Jerusalem, Jerusalem, Israel
LORD ANDREW HARDIE, Edinburgh, Scotland
J. A. JOLOWICZ, Trinity College, Cambridge, England
DIANNA P. KEMPE, Paget, Bermuda
KONSTANTINOS D. KERAMEUS, Athens University School of Law (Director, Hellenic Institute of International and Foreign Law), Athens, Greece [from 2002]
CATHERINE KESSEDJIAN, University of Panthéon-Assas (Paris II), Paris, France
TAKESHI KOJIMA, Chuo University Law Department, Tokyo, Japan
SERGEI LEBEDEV, International Law School of the Moscow State University for International Relations, Moscow, Russia [from 2002]
WANG LIMING, People's University, Beijing, China [from 2001]
KOICHI MIKI, Keio University, Tokyo, Japan
RAMÓN MULLERAT-BALMAÑA, Barcelona, Spain
L. J. PRIESTLEY, Q.C., Sydney, Australia; Retired Justice, Court of Appeal, Supreme Court of New South Wales [from 2001]
JORGE A. SÁNCHEZ-CORDERO DÁVILA, Mexico City, Mexico [from 2002]
CARLOS SÁNCHEZ-MEJORADA Y VELASCO, Mexico City, Mexico [from 2002]
SANG HYUN SONG, Law School, Seoul National University, Seoul, Korea
^**ROLF STÜRNER, University of Freiburg, Freiburg, Germany
TANG WEIJIAN, People's University, Beijing, China [from 2001]
YASUHEI TANIGUCHI, Tokyo, Japan
JANET WALKER, Osgoode Hall Law School of York University, North York, Ontario, Canada
GERHARD WALTER, University of Bern Institute for Swiss and International Civil Procedure, Bern, Switzerland
GARRY D. WATSON, Osgoode Hall Law School of York University, North York, Ontario, Canada
LINA ZHENG, Hong Kong, Hong Kong

LIAISON
HOUSTON PUTNAM LOWRY, Meriden, Connecticut, for the American Bar Association Section of International Law and Practice

EX OFFICIO
ROSWELL B. PERKINS, New York, New York
   Chair of the Council, The American Law Institute
MICHAEL TRAYNOR, San Francisco, California
   President, The American Law Institute
LANCE LIEBMAN, New York, New York
   Director, The American Law Institute

ALI/UNIDROIT WORKING GROUP

PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE

REPORTERS
^*GEOFFREY C. HAZARD, JR., University of Pennsylvania Law School, Philadelphia, United States
ROLF STÜRNER, University of Freiburg, Freiburg, Germany

CHAIR
^**RONALD T. NHLAPO, South African Law Commission, Pretoria, South Africa

MEMBERS
NEIL H. ANDREWS, Clare College, University of Cambridge, Cambridge, England
AÍDA R. KEMELMAJER DE CARLUCCI, Supreme Court of Mendoza, Mendoza, Argentina
FRÉDÉRIQUE FERRAND, Université Jean Moulin, Lyon, France
MASANORI KAWANO, Nagoya University School of Law, Nagoya, Japan
PIERRE LALIVE, University of Geneva, Geneva, Switzerland

CONSULTANT
MICHAEL JOACHIM BONELL, University of Rome, Rome, Italy

SECRETARY
^***ANTONIO GIDI, Salvador, Brazil; University of Houston Law Center, Houston, Texas

EX OFFICIO
BERARDINO LIBONATI, Rome, Italy
   President, UNIDROIT
HERBERT KRONKE, Rome, Italy
   Secretary-General, UNIDROIT

MEMBERS CONSULTATIVE GROUP

PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE (AS OF FEBRUARY 13, 2004)

INTERNATIONAL CONSULTANTS

PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE (AS OF FEBRUARY 13, 2004)

FOREWORD

The proposals for law reform published in this volume result from a happy collaboration between the International Institute for the Unification of Private Law (UNIDROIT) and The American Law Institute (ALI).

   UNIDROIT, based in Rome (Italy), was founded in 1926 as a specialized agency of the League of Nations. After World War Ⅱ it continued as an independent intergovernmental organization on the basis of a multilateral agreement, the UNIDROIT Statute. Its purpose is to study needs and methods for modernizing, harmonizing, and coordinating private law between states and groups of states and to prepare legislative texts for consideration by governments. Membership is restricted to states. The currently 59 member states are drawn from the five continents and represent all varieties of different legal, economic, and political systems as well as different cultural backgrounds. The organization has over the years prepared over 70 studies and drafts. In recent years, nine Conventions plus various “soft-law” instruments such as Model Laws, Guides, and the UNIDROIT Principles of International Commercial Contracts (1994 and 2004), www.unidroit.org/english/principles/contracts/main.htm, were adopted. At present, the focus is on secured-transactions law (Convention on International Interests in Mobile Equipment (Cape Town, 2001), www.unidroit.org/english/conventions/mobile-equipment/main.htm), and capital-market law. It is envisaged to further develop the Principles of International Commercial Contracts.

   ALI, based in Philadelphia, was founded in 1923 by American judges, professors, and practicing lawyers with the goal of recommending simplification of American law and the law’s improved adaptation to social conditions. The ALI is a private organization with nearly 4,000 members, selected on the basis of professional achievement and demonstrated interest in the improvement of the law. For 82 years it has been devoted to law reform, drafting and publishing Restatements of the common law, Principles of law, proposed Statutes, and various studies. For the past decade, ALI’s agenda has included transnational work, recommending rules for coordinating insolvency disputes among the three North American Free Trade Agreement (NAFTA) nations and currently considering recommendations concerning U.S. enforcement of foreign judgments, transnational coordination of intellectual-property disputes, and the law of the World Trade Organization (WTO).

   This work on Principles of Transnational Civil Procedure was begun in 1997 as an ALI project on Transnational Rules of Civil Procedure (later titled Principles and Rules of Transnational Civil Procedure), with Professor Geoffrey Hazard, then ALI Director, and Professor Michele Taruffo as Reporters; Professor Antonio Gidi joined the project soon thereafter, first as Assistant Reporter, then as Associate Reporter. When it became clear that cooperation with a distinguished international institution was desirable, ALI began its collaboration with UNIDROIT in 1999, and the focus of the project began to shift from Rules to Principles. For the UNIDROIT process, Professors Hazard and Rolf Stürner were the Reporters and Professor Gidi was Secretary. In the ALI process, the Reporters benefited from the constructive criticism of Advisers from many countries, a Consultative Group consisting of ALI members, and a group of International Consultants, as well as from annual discussion and consideration by the ALI’s Council and membership. In the UNIDROIT process, a distinguished Working Group devoted four week-long meetings at the UNIDROIT headquarters in Rome to vigorous analysis of the Reporters’ drafts.

   In addition to the formal procedures of the two sponsoring organizations, the drafts were subjected to close critical review at numerous professional meetings and conferences held around the world. The great number of countries visited and of national systems taken into account and compared was crucial not only in demonstrating that the project and its goals were feasible on a broader scale than originally envisioned, but also in providing access to practitioners and scholars from many different jurisdictions, whose comments and criticisms enabled the Reporters both to refine their work and to make it more practicable.

   UNIDROIT and ALI are proud that the work has been completed, confident that it will have influence as the growth of global commerce increases the need for dispute-resolution systems that deserve public confidence, and hopeful that this project will lead to further efforts to help national legal systems adapt to an interconnected world. In the process we have learned again what an early ALI leader once said, that “law reform is not for the short-winded.”

CONTENTS