GLB: Civil Procedure and Global Dispute Resolution

Provided by: Tilburg
Bachelor's degree (EQF level: 6)

Objectives course
After completing this course you will:

Civil Procedure and Global Litigation
be able to explain the scope of art. 6 ECHR and the institutional and procedural implications of the right to a fair trial;
understand the basic structure of a civil procedure;
be able to explain what transnational or global litigation is, how that relates to the notion of Global law and how is that different from international private and public law; (week 38)
be able to recall the main features of civil procedure in common law and civil law jurisdictions and the main differences and similarities between those;
be able to compare the various roles lawyers play in transnational litigation and reflect if their compensation that is regulated through different cost regimes and fee structures enhances or restricts access to justice;
understand the dynamics of global litigation not only in terms of the classical private international law themes like allocation of jurisdiction, but also how differences in procedure, judicial management styles and financing rules among jurisdictions shape lawyers' strategies and litigation options and choices;
be able to analyze, discuss and explain the choices that private parties may make in light of differing civil procedural regimes and legal infrastructures (for example in view of the differing rules on cost shifting and funding, judicial management styles etc.
be able to work in a team collaboration on a complex multi-jurisdictional legal problem.

Out of Court Dispute Resolution

Understand and be able to explain

the phenomenon of positional bargaining, principled negotiation and mediation, including the different types of mediation
the agency problem in negotiation and the ethical implications thereof for lawyers and professionals
the difference between negotiation, mediation and adjudication (in and out of court including arbitration)
dispute resolution design and the factors that need to be taken into account when selecting a dispute resolution process
the phenomenon of multi-party mediation and the appropriate models of mediation for a complex multi-party dispute
the phenomenon of Investor-State mediation
the perceived advantages and disadvantages of arbitration
the different types of arbitration

Different approaches from different jurisdictions
be able to explain, compare and contrast the main approaches and different cultural norms, procedural rules and cost and fees rules in the studied jurisdictions to defining, managing and resolving mass disputes;

An investors¿ claim against Swiss based reinsurer Converium is resolved in the United States District Court of the Southern District of New York for US investors and in the Amsterdam Court of Appeal for all other investors world-wide. An Australian corporation agrees to a multi-million dollar settlement of 9,000+ personal injury claims of 9/11 recovery workers in South District of New York. Apple sues Samsung for patent infringement in North District of California and Samsung counter-sues in Korea, Japan and Germany. UK based multinational BP faces in relation to the oil spill in the Golf of Mexico investors¿ class actions in Texas and in Toronto on behalf of investors who purchased their shares in the US and Canada. BP faces also individual actions before the State Court in Texas. In addition, two Dutch investors¿ foundations have been set up in relation to the resolution of the BP securities litigation.  What's going on here? Why do parties and their lawyers choose to fight their legal battles in certain jurisdictions? How much choice do they have? And who are the lawyers who represent clients in global litigation? Do they coordinate their efforts? What is the influence of lawyers¿ fees structures and various cost regimes across jurisdictions on the lawyers¿ conduct and the way they handle disputes? What value can lawyers create for their clients in and out of court? What are the options that parties have for the resolution of a transnational dispute in and out of court? And last but not least: What about the resolution of a dispute that involves numerous parties spread across jurisdictions? Does that require a different approach and how does that influence the litigation dynamics and the roles of the various actors involved: courts and lawyers? Those are the type of questions that we will be addressing in this course.

Civil litigation has become increasingly complex, and increasingly spans multiple fora and multiple jurisdictions. The scale of the economy is such that virtually anything that goes wrong in the manufacturing or delivery of products or services will likely affect a large numbers of consumers, shareholders, and other economic actors. Even what might appear to be an isolated transaction is likely to involve a web of economic actors, each of whom may have a claim or be subject to suit if anything goes wrong with that transaction. As a result, while courts still attract tens of thousands of `ordinary¿ lawsuits involving one or a few parties on each side, the cases that engage the attention of lawyers at large corporate firms, successful plaintiff firms, public sector lawyers responsible for regulatory enforcement and judges more frequently involve hundreds if not thousands of parties participating in class or group litigation. As class actions and group litigation proceedings spread around the world, lawyers and judges are operating in a virtual global court even while their feet are on the ground in their own home court.
Understanding the dynamics of transnational dispute resolution requires not only understanding the formal rules with regard to jurisdiction, conflict of laws and enforcement, but also how differences in procedure, judicial management styles, and financing rules among jurisdictions shape lawyers¿ and parties¿ strategies and judges¿ views on their roles in managing such litigation.

Outline and format of the course
This seminar will consider the evolution of global dispute resolution and will deal with the kind of questions posed above. This is not a seminar in comparative law or civil procedure, nor a seminar in international private or public law, nor a seminar in conflicts of law, but it has elements of all these. The seminar sessions will cover a mix of formal law (`law on the books¿) and informal practices (`law in action¿), and will include guest lectures by academics and practitioners with a specific expertise in the topic at hand.

Roughly speaking the course consists of two parts. The first part will explore themes that relate to global dispute resolution and civil procedure more generally. The second part will focus on class actions and settlements in the transnational context since this is an important group of disputes that emerges in the transnational litigation arena. There will be simultaneous interactive sessions with the Law Schools of Leuphana University and Stanford University.

  • Fall Semester 2022/23 (from to )

    Course start date 2022-09-01
    Course end date 2022-12-23
    Language English
    Credits 6 (ECTS)
    Grading scheme: Grades will be awarded on a 10 point scale where 6 is the passing grade