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American Review of International Arbitration - ARIA - Vol. 15 No. 2 2004
American Review of International Arbitration - ARIA - (U.S. Price)
American Review of International Arbitration - ARIA (International Price)
ARIA Vol. 15 No. 2 2004
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In an increasingly borderless and multijurisdictional international
business environment, parties seek certainty and predictability in the
resolution of cross-border commercial disputes. The legal risk associated
with doing business on a multinational level must be kept to a minimum.
When disputes do arise and self-help remedies are non-viable, parties
want to rely on an efficient and effective dispute resolution system.
Unfortunately, the divergent nature of procedural law in the different
judicial systems throughout the world means businesses face extra costs
and greater uncertainty when engaging in domestic litigation in a foreign
jurisdiction. Such problems have created a focus on harmonizing
transnational civil procedure. The American Law Institute (“ALI”) and
the International Institute for the Unification of Private Law
(“UNIDROIT”) have jointly developed the Principles and Rules of
Transnational Civil Procedure (hereinafter also referred to as the
“ALI/UNIDROIT Project”). The final draft of the ALI/UNIDROIT
Project was approved by both ALI and the UNIDROIT Governing Council
in 2004. It is thus timely to examine the likely success of the
ALI/UNIDROIT Project in its attempts at achieving the monumental task
of harmonizing transnational civil procedure.
I. INTRODUCTION
The concept of creating a procedural system designed for the resolution of
transnational civil disputes is not new. As far back as the times of the medieval
law merchant, informal courts were established to settle disputes that arose out of
commercial dealings in the fairs and markets held throughout Europe.1 The
transient nature of the merchant class meant special customs developed that did
not necessarily reflect local feudal law but were a product of the particular
methods of settling disputes amongst merchants. While mercantile custom was
not entirely homogenous, practices were often similar, thus forming part of what
Stephen McAuley - B App Fin, LLB (Hons). Tipstaff to Justice C.R.R. Hoeben, Supreme Court of
NSW. The author would like to thank Stephen Burke and Alex Low for critique and
feedback on this paper.
