Peter H. Pfund on Federalism and U.S. Participation in Unification of Private Law

I want to draw readers’ attention to interesting remarks by Peter H. Pfund on Federalism and U.S. Participation in Intergovernmental Efforts to Unify Private Law, in 56 Vill. L. Rev. 559 (2011), which I’ve just had the chance to read. Mr. Pfund was an assistant legal advisor for private international law in the Office of the Legal Adviser in the State Department from 1979 to 1997. The entire article is interesting and worth a read. I was particularly interested in Mr. Pfund’s thoughts on the Hague Choice-of-Court Convention. While the Office of the Legal Adviser, the Office of Legal Counsel (in the Justice Department), and the Uniform Law Commission are coordinating much more closely than before on US implementation of private international law conventions, and while they are focusing in particular on the Choice-Of-Court Convention, there is a difference of opinion as to how to proceed. According to Mr. Pfund, the ULC believes that the states “should be free to enact a uniform law prepared by the ULCfor implementation and that federal legislation imposed on the U.S. states might create problems through non-uniform application and interpretation of such legislation by state courts.” Others favor federal legislation, but there are two competing versions of the proposed federal statute, both still in an early stage of drafting. The contemplated federal statute would preempt a uniform law adopted by the states to the extent the uniform law is inconsistent with the federal statute.

Pfund mentions five criteria that, he says, will be key to the State Department’s decisions about how to implement private international law treaties:

  1. The need to ensure that the United States can comply with its treaty obligations
  2. “Whether potential treaty partners will view the United States as a reliable treaty partner”
  3. Our history of federalism
  4. The need for certainty
  5. The need for transparency

Surely a sensible list!

Here is a link to the proposed Uniform International Choice of Court Agreements Act. I have asked the State Department for copies of the competing drafts of a federal statute but have not yet heard back. (Note to State Department: don’t make me FOIA you!) If anyone has access to these draft and would like to send along a copy, I’d be grateful! Please get in touch via my contact page.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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