Book of the Day: General Principles of Law and International Due Process
Posted on March 31, 2017
Readers, I’ve been meaning for a while to call to your attention a new book by friend of Letters Blogatory Charles T. Kotuby Jr. and Luke A. Sobota: General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes. Most of the book has to do with the substantive law—the requirement of good faith and pacta sunt servanda, principles of corporate separateness, and other topics.
The part of the book that will be of most interest to Letters Blogatory readers, I think, is the section about international due process as applied by arbitral tribunals, when reviewing decision of national courts, and by national courts, when deciding whether to recognize foreign decisions. This section has a good discussion of the relevant US law of recognition and enforcement, beginning with federal common law and covering the uniform acts on the subject as well as reviewing some illustrative cases.
When I first learned of the idea of international due process, it seemed to me that the principles it contained were so anodyne as to be basically useless. The cases cited in the book, in contexts ranging from BIT “fair and equitable treatment” cases to US recognition proceedings, is a sufficient answer to that point. Today, if there is a criticism to be made of international due process, perhaps it is just the opposite! That was certainly the view, for example, of the Ecuadoran government at that conference I reported on in 2014. Perhaps, those critics would say, there is much more of an agenda behind the seemingly unobjectionable and universal principles of international due process than meets the eye. Addressing this criticism is not really what the book is about, though, which is to my mind anyway a little bit of a relief—it is a good thing to have a straightforward doctrinal treatment of the subject without getting bogged down in political critiques.