Jurisdictional Conflict and Jurisdictional Equilibration: Paths to a Via Media?

I. INTRODUCTION My goal in this article is to offer some reflections on jurisdictional conflict stimulated by Professor Posch (1) and on jurisdictional equilibration stimulated by Professor Silberman. (2) Thus, having brought to bear on the understanding of jurisdictional conflict an account of the etiology and current dilemmas of American jurisdictional jurisprudence, I will assess the roles and prospects of two jurisdictional equilibration devices--the Latin twins, forum non conveniens and lis pendens--in resolving such conflict, with special attention to international business disputes. II. JURISDICTIONAL CONFLICT Professor Posch's article lays firmly at the door of disagreements about appropriate rules of adjudicatory jurisdiction the difficulties that delegates to the Hague Conference have experienced in crafting a global convention on jurisdiction and judgments. (3) In his view, certain grounds of jurisdiction accepted in the United States but regarded as exorbitant under the Brussels Convention and its replacement regulation, combined with the American Rule on cost (including attorney's fee) shifting, the availability of contingency fee representation, and the right to jury trial in civil cases, prompt overreaching by entrepreneurial American plaintiffs lawyers and risk aversion in foreign defendants. The latter are therefore often led either to settle rather than to litigate once a lawsuit has been commenced in the United States, or to anticipate and try to avoid that dilemma through a forum-selection (including an arbitration) clause. According to this account, the differences in jurisdictional conceptions that have prevented agreement at The Hague overwhelm other differences in the rules and practices applicable in the United States and the E.U. countries that Professor Posch discusses, including differences regarding forum-selection clauses and the recognition and enforcement of foreign judgments. (4) One need not agree with Professor Posch's account to find interesting the conclusion that what he calls "sociological differences" are probably more important than legal differences to an understanding of the jurisdictional conflict he describes. For present purposes, I would highlight one difference that might be so conceived and that has obvious legal impact. In many developed countries in the western world, the State directly affords or provides administrative or other mechanisms that afford--assistance to those who have been injured to a far greater degree than does the United States, where, as a result, litigation picks up the slack. The same is true of mechanisms to vindicate important regulatory interests. These differences reflect, in turn, fundamental differences in attitudes toward the proper role of the State and of private initiative in ordering social life, with predictable effects on general attitudes toward not only litigation but also the status quo and how, if at all, it should be altered. (5) However regrettable the contingency fee, the American Rule on cost-shifting, and the institution of the jury trial in civil cases may appear to a European, they are logical incidents of a system that distrusts government and leans heavily on private litigation to compensate for injury and to enforce important social norms, but that does not provide legal aid that is worthy of the name. (6) It is not only the self-interest of entrepreneurial American plaintiffs lawyers that prompts resistance to attempts to reduce the availability of litigation forums in the United States when an American alleges injury for which a foreign enterprise may be legally responsible or where the activities of that foreign enterprise are alleged to trigger an American regulatory interest. Forced to pursue vindication thousands of miles from home, and without alternative (that is, non-litigation) means of vindication, our putative American plaintiff might lose not only favorable substantive law but that which experience suggests may be more important in many cases, to wit, the ability to secure representation and to develop evidence necessary to establish liability (discovery). …