According to some commentators, forum shopping is an “evil” that must be eradicated. It has been suggested that the unification of substantive law through international conventions constitutes one way to achieve this outcome. This book shows that the drafting of uniform substantive law convention cannot prevent forum shopping. The reasons are classified into two main categories: 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. These reasons range from the costs of access to justice to the bias of potential adjudicators to the enforceability of judgments. 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. This book also focuses on another reason why forum shopping cannot be overcome: the impossibility of ensuring uniform applications and interpretations of the various uniform substantive law conventions.
Franco Ferrari is a professor of law and director of the Center for Transnational Litigation, Arbitration, and Commercial Law at the NYU School of Law. He is also a former legal officer at the UN Office of Legal Affairs; he has published more than 300 law review articles, encyclopedia entries and book chapters in various languages, and 35 books in the areas of international commercial law, conflict of laws, comparative law and international commercial arbitration.
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