Maya Steinitz on “The Case For An International Court of Civil Justice”

Maya Steinitz of the University of Iowa College of Law has recently published The Case For An International Court Of Civil Justice, 67 Stan. L. Rev. Online 75 (2014). The paper proposes creation of an international court to exercise jurisdiction over cross-border torts. I’d like to congratulate Professor Steinitz on her contribution to the debate about ways to solve the perceived lack of access to justice in cross-border tort cases and to recommend her paper to Letters Blogatory readers.

The paper sets up the problem by comparing the Chevron/Lago Agrio case with the BP Deepwater Horizon case. In the BP case, the tort was basically domestic, and the US courts were able to provide a remedy to the victims. In the Chevron case, the tort was transnational and no court to date has been able to provide an effective remedy. A reader could stop here and criticize this set-up. On the one hand, if Chevron is right about the merits of the case, then the fact that courts have not provided a remedy to the plaintiffs is not a defeat for victims but rather a victory for due process. On the other hand, even in the BP case, there are claims that some so-called victims have been making unsubstantiated claims for compensation against the settlement fund. But I don’t want to get derailed here, since Steinitz’s discussion of the two cases is meant, I think, merely to set up the problem, and there’s no question that effective remedies in cross-border tort litigation is indeed a problem.

The real interest in the paper is Steinitz’s counterintuitive point that far from opposing creation of such an international court, major multinationals may have incentives to favor it, ranging from a forum in which they can avoid the rigors of US discovery to the difficulties and risks of litigating in many forums at once. This is an interesting suggestion, and maybe it is right, though I have some doubts. Yes, Chevron (for example) has spent an enormous amount of money litigating the Lago Agrio case, but when compared with the $18 billion the plaintiffs originally obtained, the fees may not be as high as all that. Also, suppose the proposal were adopted. Presumably it would still be necessary to turn to national courts in order to enforce judgments of the new international tribunal. The tribunal might be less suspect in corporate eyes than certain national courts, but then again, depending on its composition, its procedures, etc., it might not. And as Chevron’s case shows, sometimes a big corporate defendant is able to raise arguments about fraud in the proceedings only because it has access to expansive US pretrial discovery procedures.

I also wonder if Steinitz’s prescription is better suited to solve the problem than other solutions out there, e.g., the Whytock & Robertson proposal, which we’ve discussed here extensively. Take the Chevron case as an example. The case was originally brought in the US. No one questions the US court’s competence to adjudicate the case, and had Chevron permitted the case to proceed here, any judgment that resulted would have been readily enforceable. Rather, according to the Whytock & Robertson view, the difficulty arises because the standard courts use when deciding whether to defer to litigation in another forum is not the same as the standard they use when deciding whether to recognize that forum’s judgments. Everyone agrees there is a problem, but the solution has to be judged not just against the problem itself but against the alternate proposed solutions.

I recommend the papers to readers as a useful contribution to the growing literature that tries to get a handle on the problem of transnational tort litigation.

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.

2 thoughts on “Maya Steinitz on “The Case For An International Court of Civil Justice”

  1. Ted, thanks for posting the link. Maya dismisses too hastily in my view international arbitration as a possible venue for these claims, with this comment in her paper; “International commercial arbitration is a private process between private parties regarding private law claims (not torts) and requires an agreement, usually entered into ex ante, to arbitrate from which to derive its jurisdiction.”

    Arbitration can and does include tort claims, in particular when they arise in connection with a breach of contract that is covered by a contractual arbitration clause; ancillary tort claims are arbitrable in most jurisdictions, and efforts to bring those tort claims into courts in the presence of a sufficiently broad arbitration clause will not succeed.

    Further, arbitration is not confined to ex ante arbitration agreements; parties to a tort or contract dispute may submit their dispute to binding arbitration after the dispute arises; the resulting award will be enforceable under the NY Convention.

    If it is really in the interest of corporate America to identify an alternative forum, then I submit it should be far easier to convince parties to use a consensual arbitral forum than to create ex nihilo a new mandatory international jurisdiction that would necessarily create a whole range of new conflicts of law issues (not to mention the impossible political and diplomatic issues involved).

    1. Alex, thanks for the interesting comment. Yes, arbitration can be used in tort claims, and yes it is possible to submit a dispute to arbitration even in the absence of an ex ante agreement to arbitrate. I’m a proponent of arbitration, for sure (I had better be!) But in the context of big transnational torts, it’s difficult for me to imagine both parties agreeing to arbitrate. I wonder if there are any examples out there to help us judge whether this is a real practical possibility?

      By the way, we have have been following the news from Paris very carefully today here in Boston and I’m sure elsewhere. Nous sommes tous Français, especially today!

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