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Transnational Law and the Doctrine of Comity

World Judicial Systems
Paul Murphy 4/29/2012

The movement towards uniformity in international legal transactions and adjudication of conflicts has a long history. The Hague Conference adopted 7 international Conventions between 1893 and 1904. All have since been replaced by more modern instruments. That is especially not surprising given the rapid advancements of the last half-century in electronic communication and digital transmission of information. The primary purpose of Transnational Law and the Doctrine of Comity is to provide authoritative sources illuminating the necessity of judicial comity in an environment of an increasing number of cross-border legal cases.

Evaluation Criteria The criteria employed for evaluating the sources used in the annotated bibliography are adapted from Critically Analyzing Information Source. 1 The criteria include:           . . . . . . . . . . The author's credentials; The author’s associated with a reputable institution or organization; The publisher; Whether the source is from a scholarly or a popular journal; The author’s intended audience; Whether the information covered is fact, opinion, or propaganda; Whether the information appears to be valid and well-researched How the ideas and arguments advanced align with the other works covered; Whether the author's point of view is objective and impartial; and Whether the material is primary or secondary in nature.

I sought the most authoritative sources based on the type and level of information each could offer the reader. Some are scholarly and some are from popular journals, such as “Law Technology News.” These were chosen to show a more “practical” need for a smooth and reliable system when operating in the international legal theater. I also sought to gather information from primary as well as secondary sources, including the United States Supreme Court, the Hague Conference on Private International law, the American Bar Association site, Heinlein Online, and law journals. At times the sources refer, if not to each other directly, then to shared information. Finding references to a particular set of information is a good indication that the information is probably valuable. For example, a few of the articles note and discuss the 1987 Supreme Court Decision of Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for S. Dist., 482 U.S. 522 (1987). Aerospatiale is not reviewed separately, but is sufficiently noted.

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Cornell University Olin & Uris Libraries, “Critically Analyzing Information Sources,” available at http://bit.ly/Lp65Ly.

Research Methodology A major research tool was DU's Westminster Law Library from where I was able to access sources such as HeinOnline, LegalTrac, LexisNexis, and JSTOR. The web site for The Hague was invaluable for providing quick and authoritative articles and history. Ultimately, the goal of the research was to examine the use of, need for, and method for accomplishing the cooperation necessary for individuals and companies to interact globally in the digital age. Perhaps it is best stated by the HccH itself: The ultimate goal of the Organisation (sic) is to work for a world in which, despite the differences between legal systems, persons - individuals as well as companies - can enjoy a high degree of legal security. 2 I did a search on the American Bar Association site in the Section of Litigation, where I found a number of articles that were on point regarding international business transactions. Another source I investigated was the online magazine, Law Technology News. By subscribing to this site, I received daily emails describing articles, many of which were relevant to my purpose. Research sources were weighted by their authority. Although I use and endorse Wikipedia and find its information to be increasingly credible, I consider it a “quick” source and not a primary one, especially for a work of the caliber I hoped to produce.

Note on hyperlinks and bookmarks: Hyperlinks will open the webpage indicated. Bookmarks refer to another part of the document. The symbol  will take you to the referenced part, and the symbol  will take you back. The symbol  will take you back to the Table Of contents.

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HCCH (April 28, 2012),

http://bit.ly/Ka73h6. 2|Page

Table of Contents Page 4 1. Molly Warner Lien, The Cooperative and Integrative Models of International Judicial Comity: Two Illustrations Using Transnational Discovery and Breard Scenarios. 4 2. Brian Cabrera, 5 Essential Elements of a Global Compliance Program, Law Technology News. 5 3. M. James Daley, A Call to Dialogue: EU Article 29 Data Protection Working Party Document 158 on Discovery for Cross-Border Civil Litigation, Georgetown Law. 4. Jonathan I. Handler and Erica Tennyson, International Discovery Requests Under 28 U.S.C. § 1782. 5. Presented by: Hon. Brian M. Cogan, U.S.D.J., Conflicts in Transnational Discovery. 6. Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. 7. Alan Charles Raul, Edward McNicholas and Elisa Jillson, Reconciling European Data Privacy Concerns with US Discovery Rules: Conflict and Comity. 8. The Sedona Conference® International Principles on Discovery/Disclosure/ Data Protection, December 2011.

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1.

Molly Warner Lien, The Cooperative and Integrative Models of International Judicial Comity: Two Illustrations Using Transnational Discovery and Breard Scenarios, 50 Cath. U. L. Rev. 591 2000-2001, available at http://heinonline.org.
Some scholars regard comity to be either dead or dying, in that "courts have used "comity" to avoid accurate analysts of legal issues.” [593] But the article presents workable "models of international judicial comity that can and must be presents workable "models of international judicial comity that can and must be created [593]." These models are: (1) cooperative comity -- used when courts face real or possible conflicts with foreign courts, and (2) integrative comity -- used for hierarchical controversies between American and international courts. This article is addressed to lawyers and law students interested in international law, in particular how international judicial comity translates to the areas of transnational discovery and Breard Scenarios. The article, which serves as an excellent introduction to the overall topic of my paper, is divided into two parts. Part I presents a summary of the confusion in court-to-court comity in different decisional contexts. Part II examines the focus of and how judicial comity is applied and looks inn particular at how foreign litigants use American courts to obtain discovery not made available abroad. The Breard Scenarios refer to the case of Breard v. Greene, 523 U.S. 371 (1998) in which Angel Francisco Breard, a citizen of Paraguay, convicted of murder and sentenced to be executed for murder, was denied habeas relief on claiming his state conviction violated the Vienna Convention. At the time the article was published, Ms. Lien was Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology. She has since written a number of articles relating to lawyering skills. She is currently Professor of Law and Director, Lawyering Skills Program, at the John Marshall Law School in Chicago, Illinois. Other practice areas include Civil Procedure, International, and Comparative Law. *** 2. Brian Cabrera, 5 Essential Elements of a Global Compliance Program, Law Technology News, http://bit.ly/KxvuUX The 5 essential elements of a global compliance program listed in Cabrera’s article are: 1. Effective Design: Straightforward and Transparent; 2. Efficient Communication: More Partnering, Less Policing; 3. Proactive Training: Relevant, Relatable, and Repeatable; 4. Ongoing Monitoring and Reporting: Extending Your Reach; and 5. Effective Enforcement: Accountability and Transparency. This article is concerned with confronting “the complexity of compliance and risk exposure in doing business globally [1].” For businesses to operate within the global community, they will need compliance methods that are consistent, clear, and cognizable where applied. This article is included here because it is not just the transnational standards as applied to litigious matters that are relevant to comity considerations. The vast majority of interactions with transnational law are of a commercial nature (with an emphasis on e-commerce which is not contained within national borders), and international business prefers not to have to resort to adjudication where possible. Reliable standards of operation for
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such commerce, though not yet completely established, are discussed in the following collection of articles not reviewed here: E-Commerce Law: National and Transnational Topics and Perspectives (Henk Snijders and Stephen Weatherill eds. 2003). Brian Cabrera is vice president, general counsel, and secretary of Synopsys, an electronic design automation company in Mountain View, California. The Law Technology News magazine and website aim to provide easy-to-read coverage of legal technology trends and developments to legal professionals. In contrast to Ms. Lien’s article , Mr. Cabrera’s approach to transnational issues and the need for comity is from a business or practical view. *** 3. M. James Daley, A Call to Dialogue: EU Article 29 Data Protection Working Party Document 158 on Discovery for Cross-Border Civil Litigation, Georgetown Law, EDiscovery Law Blog, available at http://bit.ly/JmOsNB (last visited April 28, 2012, 2012). The article by Mr. Daley is focused on generating possible clients who do or might need the expertise Synopsis provides for solutions to complex e-discovery challenges. This paper discusses the document issued by the Article 29 Data Protection Working Party known as Working Document 158 (WD 158) that addresses “pre-trial discovery for cross-border civil litigation.” One of the challenges facing comity in transnational law reform is for the United States and Europe to come to an agreement on how and what personal information will be protected in cross-border discovery. Links in Mr. Daley’s article lead to a discussion of the Conference on Privacy and Protection of Personal Data, held in Washington and Brussels in March of 2012, from which was produced a joint statement on personal data protection and privacy policy. James Daley is a partner with Daley & Fey LLP. He has extensive experience with complex litigation and helps his clients develop cost effective management methods for erecords-compliance risk assessment. He is also Co-Chair of the Sedona Conference® Working Group on International Electronic Information Management, Discovery and Disclosure, and Executive Editor of The Sedona Conference® Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy and e-Discovery . *** 4. Jonathan I. Handler and Erica Tennyson, International Discovery Requests Under 28 U.S.C. § 1782, http://bit.ly/Lp6s8Q. This article opens with a simple premise, that “the expansion of the global economy and increase in cross-border transactions” will most likely lead to a growth in international commercial disputes. Those involved in such litigation will need mechanisms for seeking and obtaining discovery. 28 U.S.C. § 1782 governs how evidence will be produced in the United States for use in a foreign jurisdiction. Thus, the intent of the statute is to allow “judicial assistance to
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foreign or international tribunals whether or not reciprocal arrangements existed." In re Application of Malev Hungarian Airlines, 964 F.2d 97, 101. This is significant, for the statute is not dependent upon reciprocity or comity, and the discovery under § 1782 may very well be broader than allowed in the foreign jurisdiction. The Supreme Court, in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), clarified that documents in the United States were discoverable under § 1782(a). Advanced Micro Devices (AMD) had filed an antitrust complaint in a foreign tribunal and the documents sought would not have been discoverable if they had been in the European Union, and also would not have been discoverable under the Federal Rules of Civil Procedure, because AMD was not an official party to the quasi-judicial proceeding. One implication of Intel seems to be that as more U.S.-based firms become involved in foreign disputes they will undoubtedly be faced with § 1782 actions and be forced to disclose documents other jurisdictions or statutory authorities might not require. This may not bode well for the doctrine of comity, but § 1782 does give the district court broad discretion “in deciding whether and to what extent to grant Section 1782 requests for judicial assistance.” Both Jonathan I. Handler and Erica Tennyson work in the Boston firm of Day Pitney LLP in the area of complex commercial litigation. *** 5. Presented by: Hon. Brian M. Cogan, U.S.D.J., Conflicts in Transnational Discovery, ABA 2011 Annual Meeting, http://bit.ly/MEAefq In Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 546 (1987), the Supreme Court held that “American courts must exercise ‘special vigilance’ to protect foreign litigants from the burdens of American style discovery.” This presentation by Judge Cogan (the first part of which is a PowerPoint Presentation followed by an outline of the slides) examines the conflict that exists in applying the criteria Federal Rules of Civil Procedure (FRCP) versus that of the Hague Convention. Rule 26(b)(1) of the FRCP allows parties to “obtain discovery regarding any nonprivileged matter that is relevant…” and “(r)elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Many member states of the Hague Convention do not allow this type of latitude in discovery. The “Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters” (discussed next) under Chapter I, directs that evidence be obtained by first issuing a letter of request. Judge Cogan notes in his presentation that because of the specificity required in a request for production, discovery under The Hague Convention takes considerably longer than under the FRCP. “Courts will generally subject a foreign defendant to discovery under the Federal Rules unless the defendant can demonstrate that there are compelling reasons for the court to apply the Hague Convention.” [7] Justice Blackmun, in his opinion in Aerospatiale, concurring in part and dissenting in part, stated, “Some might well regard the Court's decision in this case as an affront to the nations that have joined the United States in ratifying the Hague Convention on the Taking of Evidence [548] ….The Court
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ignores the importance of the Convention by relegating it to an ‘optional’ status, without acknowledging the significant achievement in accommodating divergent interests that the Convention represents.” I chose this article because although Aerospatiale was decided in 1987, much of what Justice Blackmun complained is still prevalent among U.S. judges. Justice Blackmun is addressing the need for judicial comity and, as detailed in the article by Molly Warner Lien, although even now the term “comity” is in frequent use, courts often use it “to avoid accurate analysis of legal issues.”  *** 6. Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, available at http://bit.ly/K8tTr0 The Convention was included to illustrate the method of sending and receiving requests to obtain evidence. In order for true comity to be realized in crossborder discovery, nations will probably need to revisit and either amend the Convention to accommodate the discovery allowed by the FRCP and 28 U.S.C. § 1782, or the United States may need to rethink discovery in the digital age. As previously mentioned, discovery under the Convention is obtained by the requesting authority issuing a Letter of Request to the requested authority. This letter is specific as to the person(s) to be examined and the subject matter of the examination as well as any documents requested. Discovery under the Convention takes longer than discovery under the FRCP. Many U.S. judges have been reluctant, therefore, to rely on the Convention when scheduling deadlines in cases involving foreign parties and often dictate that the FRCP will control discovery. The problems for integrating comity occur where, quoting Molly Warner Lien in her article above, “domestic courts subordinate the determinations, interpretations, and requests of international tribunals to domestic law considerations.” [595] She asserts that a more developed “understanding of the relationship of American courts and international tribunals is necessary if we are to bridge the chasm between American dualism and monist construct of international law.” [Id.] That is, Lien states that the United States views domestic law and international law as separate and distinct, “and that it (international law) can be invoked in domestic courts only when it has been adopted or otherwise transformed into domestic law, through enactment, recognition in a judicial precedent, or through ratification of a treaty incorporating the relevant rule of International law.” [592] Monism views the two as part of a unitary system. As we read in the next article, these conflicting views may not be easily reconciled. *** Alan Charles Raul, Edward McNicholas and Elisa Jillson, Reconciling European Data Privacy Concerns with US Discovery Rules: Conflict and Comity, available at http://bit.ly/MEDeJ0

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Dualism and monism are not the only philosophical differences between the
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United States and European nations (meaning most of the other 72 members and 68 non-member contracting states of the Hague Conference) standing in the way of comity. One very basic and practical impediment includes discovery. Attorneys in the United States are used to being aggressive and even relentless when it comes to discovery requests. After all, according to Rule 26(b)(1) of the FRCP only relevant evidence not even necessarily admissible at the trial is discoverable if it appears reasonably calculated to lead to the discovery of admissible evidence. This is a major conflict in many jurisdictions outside of the U.S. where the primary concern is to protect personal privacy. The conflict is in the fore of controversy now because of the not so sudden appearance of electronically stored information (ESI) in use globally and in Rule 34 of the FRCP as legitimately discoverable evidence. The American judicial system is still grappling with how to deal with what can be millions of documents in the form of emails and other electronically stored documents. The article points out that EU law “identifies privacy as a fundamental human right, (while) US law conceives of privacy as one interest among others.” Even the idea of whistle-blowing, a federally-protected practice in the U.S., is deplorable to Europeans. [120] It is not so implausible to hear that some commentators on the subject believe the differences to be impossible to overcome. The article looks at one area of contention that American litigators take for granted – the duty to disclose before receiving a discovery request the information outlined in Rules 26 and 34 of the FRCP. The EU has gone in quite the opposite direction, mandating the protection of data deemed personal information. The website for the European Commission states: Under EU law, personal data can only be gathered legally under strict conditions, for a legitimate purpose. Furthermore, persons or organisations (sic) which collect and manage your personal information must protect it from misuse and must respect certain rights of the data owners which are guaranteed by EU law. The EU generally does not consider US discovery “as either a sufficient ‘legal obligation’ or a ‘legitimate interest’ for EU data protection purposes” [121] to allow satisfaction of US discovery requirements. “Blocking” statutes have been enacted – and have existed for many years in some contexts -- presumably to stop the production of information in US courts. US courts have not always respected the blocking statutes. There is common ground, however. The article points to the likes of Sarbanes-Oxley and the European Anti-Fraud Office (OLAF) as fertile ground for the development of compromise. The US and EU both seek to eliminate corporate fraud and protect privacy. Implementing common goals is, according to the authors, the best way to implement and achieve international comity. On February 11, 2009, the Article 29 Data Protection Working Party (‘‘Working Party’’)  presented what the authors call a pragmatic solution by "relying on principles of international comity" on pre-trial discovery for crossborder litigation. These are "the Guidelines" offered to companies that will, it is hoped, allow compliance with EU privacy law while allowing civil discovery under US litigation prerogatives. These Guidelines were developed with the tensions
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between the divergent sides in mind. The authors, Alan Raul, Edward McNicholas, and Elisa Jillson are attorneys in the Privacy, Data Security, and Information Law practice in the law firm of Sidley Austin LLP and the article is a reprint from Global Competition Litigation Review Issue 3, 2009. *** 8. The Sedona Conference® International Principles on Discovery/Disclosure/Data Protection, December 2011, available at http://bit.ly/K9U1jt The Sedona Conference is committed to discovering, through open dialogue and discussion, methods of improving cross-border discovery methods and practices. This paper by the Conference, called Working Group 6, was chosen because it is representative of the group’s good and thorough work. Working Group 6, launched in 2005, was in close contact with  Article 29 Working Party (mentioned in #9 above) and traveled to many venues in Europe sponsoring seminars to gather information on the conundrum of cross-border discovery, especially as electronic information began proliferating. In 2007, Working Group 6 decided that the first steps necessary in knowing and understanding conflicts of laws it would be necessary to examine the notions of data privacy, understand the legal methods for cross-border transmission of  ESI, and provide a way of examining the roadblocks to solving the problems. Then, in 2008, The Sedona Conference® Framework for Analysis of Cross-Border Discovery Conflicts (“Framework for Analysis”)  was published. The Working Group 6 then felt ready to start developing a set of principles for guiding parties through the challenges of cross- border conflicts. The International Principles, then, are a culmination of six years of conferences, travel, study and previous publications. The Report presents six principles and four appendices, with Appendix A comprising a bibliography, and Appendices B presenting the Model Protected Data Protective Order. Appendix C presents instructions for Cross-Border Data Safeguarding Process + Transfer Protocol.

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