Franco Ferrari: Forum Shopping despite Unification of Law
It has often been suggested that forum shopping is “evil” and needs to be eradicated. And it is in this context that one must understand statements by commentators to the effect that the unification of substantive law through international conventions constitutes one way to reach this result. These lectures show not only that the qualification of forum shopping as something that is deplorable is outdated, that the negative attitude vis—à—vis forum shopping seems grounded on outdated preconception and prejudice, and disregards, for example, that critical analysis has demonstrated that forum shopping also has beneficial effects, such as the promotion of ethical representation of one’s client, the protection of access to justice, and the provision of a remedy for every injury.
These lectures also show that the drafting of uniform substantive law convention cannot prevent forum shopping, for many reasons, of which these lectures create a taxonomy. The reasons are classified into two main categories, namely convention-extrinsic and convention-intrinsic reasons. The former category comprises those reasons upon which uniform substantive law conventions do not have an impact at all, and which therefore will continue to exist regardless of the coming into force of any such convention. These reasons range from the costs of access to justice to the bias of potential adjudicators to the enforceability of judgments. These and the other convention-extrinsic reasons discussed in these lectures are and will not be influenced by uniform substantive law conventions.
The convention-intrinsic reasons, on the other hand, are reasons that relate to the nature and design of uniform substantive law conventions, and include their limited substantive and international spheres of application as well as their limited scope of application, the need to provide for reservations, etc. And no drafting efforts will be able to do away with these convention-intrinsic reasons, because they touch upon features of these conventions that are ontological in nature.
The lectures also address another forum shopping reason that cannot be overcome, namely the impossibility to ensure uniform applications and interpretations of the various uniform substantive law conventions. As these lectures show, as long as these conventions are interpreted horizontally, diverging interpretations and applications by courts of different jurisdictions of conventions that need to be drafted using vague language cannot be avoided. This is due mostly to a natural tendency by adjudicators to rely on their domestic legal background and notions when having to resolve problems arising in the context of the interpretation and application uniform substantive law conventions.
It is in light of all of the above that the lectures predict that forum shopping is here to stay.
Franco Ferrari, born 26 October 1965 in Diez, Germany.
Educated at Bologna University School of Law, dottore in giurisprudenza, 1990; Augsburg University School of Law, LLM, 1992.
Doctor honoris causa, National and Kapodistrian University of Athens, 2019. Professor of Law (since 2010) and Director of the Center for Transnational Litigation, Arbitration and Commercial Law at New York University School of Law.
Formerly Professor of Law at Verona University School of Law (2002-2016), Bologna University School of Law (1998-2002) and Tilburg University School of Law (1995-1998); Legal Officer, United Nations Office of Legal Affairs, International Trade Law Division (2000-2002).
Visiting Professor of Law at National University of Singapore (2019, 2018, 2016, 2013-2007), Universität Luzern (2019), SciencesPo Law School (2020, 2019, 2018), Universitat Pompeu Fabra (2017, 1997), Columbia Law School (2009), New York University School of Law (2008, 2005), Louisiana State University (2004, 2003, 2002); University of Pittsburgh (2003); Loyola Law School (Los Angeles) (2002); University of Georgia (2001, 1999, 1998, 1996); Augsburg University (1997); Visiting Lecturer, Bucerius Law School (2014-2010).
General Editor, European International Arbitration Review (2017-2019); Co-editor, Internationales Handelsrecht and Elgar Monographs on Private International Law; Member of the Board of Advisors, Zeitschrift für Europäisches Privatrecht and European Review of Private Law. Titular Member of the International Academy of Comparative Law.
Recipient of the 2018 Certificate of Merit for High Technical Craftsmanship and Utility to Practicing Lawyers and Scholars awarded by the American Society of International Law for the co-editorship of the Encyclopedia of Private International Law.
Chapter I. Setting the stage: uniform law
B. Uniform law: A definition and its implications
C. Aims and goals of uniform law
B. The origins of the CISG
D. The CISG: A paradigm for all things good and bad
Chapter II. Forum shopping: what, why, why not?
A. The existing bias against forum shopping: The US example
B. The bias against forum shopping: The regional and international contexts
C. Anti-forum shopping stance no more?
D. Defining “forum shopping”
Chapter III. Why international uniform substantive law conventions cannot prevent forum shopping: the convention-extrinsic reasons
B. Convention-extrinsic reasons for forum shopping: Divergences in procedural rules and rules of evidence
C. Additional convention-extrinsic forum shopping reasons: Language, efficiency of the proceedings, bias, et al.
D. Arbitration v. litigation
E. Applicability of uniform substantive law conventions by arbitral tribunals v. courts
Chapter IV. Why international uniform substantive law conventions cannot prevent forum shopping: the need to resort to private international law as a convention-intrinsic reason
B. Private international law rules contained in international uniform substantive law conventions
C. Express and implicit references to private international law analyses contained in uniform substantive law conventions
D. The limited international sphere of application of uniform substantive law conventions as a convention-intrinsic forum shopping reason
E. The limited substantive sphere of application of uniform substantive law conventions as a convention-intrinsic forum shopping reason
F. The requirement of a nexus to contracting states or the law of a contracting state as a convention-intrinsic forum shopping reason
Chapter V. Further convention-intrinsic forum shopping reasons: limitations as to scope, reservations, opt-outs and diverging interpretations
A. The limited scope of application of uniform substantive law conventions as a convention-intrinsic forum shopping reason
B. The possibility of declaring reservations as a convention-intrinsic forum shopping reason
C. The dispositive nature of uniform substantive law conventions as a convention-intrinsic forum shopping reason
D. Uniform interpretation and application of uniform substantive law conventions: The theory
E. Uniform interpretation and application of uniform substantive law conventions: The reality and its effects on forum shopping
Chapter VI. Conclusion