Along with increased integration between the economic and political worlds has come global litigation that is exceeding the bounds of any single jurisdiction—whether because the matters in dispute are inherently transnational or as a result of conscious, strategic decisions by the litigants. This "globalization" of litigation is, in part, a natural incident of a world economy that is evermore interconnected. And while there is nothing inherently wrong with litigants making choices among available legal systems to maximize their odds of success, concerns arise when litigants manipulate the global litigation system to obtain an unfair advantage. Such abuse often manifests itself as a species of "global forum shopping." Substantive and procedural mechanisms that liberalize the rules of law so as to tilt the playing field unfairly—coupled with litigants who improperly "play the system"—only exacerbate this practice in jurisdictions throughout the world.
The focus of this Article is the treatment of transnational litigation by the United States legal system, where forum shopping remains a genuine concern. As Lord Denning observed: "As a moth is drawn to the light, so is a litigant drawn to the United States." Plaintiffs from around the world seek the jurisdiction of the United States courts in an effort to obtain relief not otherwise available, or available in substantially lesser amounts, in other legal systems. Attractive features of the United States legal system include: (1) procedural constructs, including class actions, jury trials, and punitive damages; (2) economic advantages, such as contingent fees and the relative absence of "loser pays" fee-shifting risks; and (3) substantive law, driven by a bias toward domestic law, often viewed as more plaintiff-friendly (in that either claims are recognized by the United States and not in other jurisdictions, like strict liability, or are perceived to require lower levels of proof). These factors drive efforts by foreign claimants to come to the United States to litigate their disputes...read more
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