Tenth Anniversary Post: Chuck Kotuby on the Future of IJA
Posted on January 8, 2021
I am thrilled that my good friend Ted Folkman has asked me to write this short celebratory post for the Tenth Anniversary of Letters Blogatory. To mark the passing of a productive decade, Ted asked to provide my thoughts on “where you think the law of international judicial assistance will be ten years from now.” I am always reluctant to play the role of a clairvoyant seer, especially for a topic as multidirectional as international judicial assistance, but I will offer some thoughts on one aspect of this subject that could offer hope and direction as we enter a new decade.
By any measure, the topics that form the broad subject of international judicial assistance are junctures of multilateral engagement. They define when and how courts of one country will acknowledge the executive acts of another (e.g. service of process), the judicial acts of another (e.g. the recognition of foreign judgments), and when they will lend assistance in the taking of evidence or request the same from another court. While sovereigns interact daily at the executive level, these are the instances when at least nominally independent domestic judiciaries interact as global players. While this is important in its own right (so that civil and commercial disputes can be efficiently resolved across national borders), there is another consequence of this interaction: it is where judiciaries judge judiciaries, decide on the propriety of their acts, and in the process elevate vital normative standards to announce what precisely qualifies as “justice, very simple, very fundamental, and of such general acceptance by all civilized countries as to form a part of the international law of the world.” (E. Borchard, 1939)
For instance, over the past ten years, we have learned from our courts that foreign judgments based on irrefutable presumptions of causation fall short of international standards of due process (Osorio), as do those where is a litigant is unable to attend the proceedings or secure counsel (DeJoria). Sometimes, transnational discovery can shed light on foreign judicial malfeasance and yield material evidence of the same (Chevron). All told, the field of international judicial assistance exhibits a vibrant reaffirmation of Professor Harold Koh’s “transnational legal process” in a microcosm of private litigants and domestic courts, where each interact to discern, internalize and enforce universal norms.
The deduction of such norms and principles is no mean task, and while the field of international judicial assistance does not undertake it alone, questions of legitimacy plague the alternatives. States can be held accountable for falling short of international standards under investment treaties, and at the dawn of the last decade the institution of investment arbitration held remarkable promise for expand the existing “enclaves of justice” (J. Paulsson, 2009). Since then, however, States have increasingly recorded their discontent with the system, leading many to reject international efforts to hold them accountable. A State who wants its judicial acts recognized abroad, however, has no such luxury to simply walk away from the community of states and the norms it seeks to uphold. One would hope that the field of international judicial assistance can provide a loose multilateral system where independent courts, not subverted by the reflexive instincts of politics, can remain beacons for due process—a force to mold and uphold those constructive norms that help bend the arc of the universe towards justice. At the very least, it reminds us of the “need [for] the courts and the legal profession to understand both the legal and practical realities elsewhere in the world if we are to preserve our own basic American values.” (Justice Breyer, THE COURT AND THE WORLD 235 (Vintage 2015).
I cannot offer such optimism as a prediction, but it remains my sincere hope for the next ten years of international judicial assistance and private international law, and a challenge to the lawyers who read this terrific blog.