1        Introduction

1. This chapter is focused on the cross-border and international dimensions of (1) obtaining evidence and (2) the procedural aspects of determining applicable law. With the increasing number of lawsuits that involve cross-border issues, the role of obtaining foreign evidence and the use of foreign law in domestic courts (as opposed to international courts) has increased.^[1] 
2. Much has been written about both aspects of determining a cross-border dispute—getting the evidence^[2] and determining the content and application of foreign law.^[3] We have looked at many of the same problems in domestic litigation from a comparative perspective, especially in Part 8. In this chapter, we are looking at similar procedures but considering how and why these procedures may differ in the cross-border context. We still find the general differences between civil and common-law systems in their approach to the actual litigation process and the assignment of roles to judges and parties. Differences in focus on orality and written evidence also are seen in the cross-border context.

1.1        Increased Need

3. There are three trends that are observable when looking at the topic of obtaining evidence and determining the applicable law which will be examined in more detail below. First, there is a growing need for foreign law in more cases. This no doubt reflects the increase in cross-border transactions, families crossing borders, and exporting of more products to more continents. Perhaps there is also more willingness in domestic courts to address cases with external elements, including most recently those dealing with climate and human rights. In some legal systems, determinations of applicable law require consideration of the content of the potential foreign law.^[4] To paraphrase Lord Denning, ‘as the moth is drawn to the light’, more parties are looking to sue either in foreign courts or use foreign law in their domestic court.^[5] The universal nature of the European Rome I Regulation^[6] is just one example of why courts need to know the content of foreign laws. In domestic US law, several states utilize choice of law theories that require comparison of different substantive law to determine which law is the ‘better law’^[7] or if applied would result in less impairment.^[8]

1.2        Increased Judicial Cooperation^[9]

4. The second trend one can observe is one toward increased judicial cooperation in obtaining evidence and content of foreign law in cross-border cases. This cooperation includes direct judicial communication among judges or communications with administrative units and may be connected with a hardlaw instrument, and even mandated, or may result in one-on-one memorandum of understanding between judicial systems or courts.^[10] As discussed in more detail below, the Hague Conference’s work reflects a bit of both. There is a provision in the 1980 Hague Parental Abduction Convention^[11] (‘Hague Abduction Convention’) which provides for Central Authorities to help obtain legal determinations of the wrongfulness of a removal or retention.^[12]  In administering the same convention, the Hague Conference has developed Principles for Direct Judicial Communication^[13] that operate along with the Hague Network Judges,^[14] discussed in more detail below. This network and principles have also been urged for cooperation in the administration of the 1996 Child Protection Convention.^[15] This concept of direct judicial communication is clearly connected with obtaining and applying foreign law. In the recent draft of the Hague Parallel Proceedings Convention being considered currently there is a provision being urged for direct judicial cooperation.^[16]
5. Regional efforts at judicial cooperation and communication are present in the EU with its European Judicial Network,^[17] which can help provide a country with legal information. Other networks exist, such as those found within a country with multiple legal systems. Often these networks are focused on underlying substantive law, but they help with correct application and administration of existing regulations in cross-border cases.
6. There are also less structured and independent efforts to obtain foreign law. One interesting example is the memorandum of understanding providing cooperation between the courts in New South Wales, Australia and New York state courts.^[18]  The agreement was initiated by the Australian Judge, Judge Speigelman, who also entered into an agreement with the courts of Singapore.^[19] The process is similar to one used domestically in several US state courts and federal courts where the state has adopted the uniform certification law.^[20] Under this process, a federal court considering a matter of state law on which there is no clear decision may certify a specific question of law with specified facts to the state’s highest court and then when the answer is returned to the federal court, the federal court uses it in their ultimate decision.^[21]

1.3        Increased Access and Digitalization

7. The third trend that one can observe is the increased availability of foreign law content through free online access and increased digitalization. Two decades ago, obtaining the content of foreign law was difficult and expensive.^[22] Today it is available but there are still language barriers and costs of technology even if access is available online. In the European Union, the e-justice portal and the judicial atlas provide for a multitude of information about the judicial systems of EU Member States and substantive law.^[23] These webpages provide information in several languages and forms that translate information automatically. However, the information about the procedural systems of the European Union Member States is still in need of improvement.^[24] 
8. The EU continues to lead the efforts in the area of information and communication technologies of legal sources and has instituted a Regulation requiring digitalization^[25]—so there is increased access to foreign law, often in primary source. The Hague Conference’s hope for a broader portal to foreign law was never pursued but their website now provides extensive sources of foreign law and law applicable to the operation of existing conventions and projects.
9. In situations where there is not a common legal tradition or connection, providing the content of the foreign law is only half of the solution to applying foreign law. There is the possibility of taking the electronic information out of context so as to result in an improper or inaccurate determination of the foreign law. The concept of networks clearinghouses or networks of experts may help place the foreign law in the proper context. Nonetheless, the increased availability of information technologies does provide greater access to foreign law.

1.4        Obtaining Evidence from Abroad

10. One obvious difference between purely domestic litigation and cross-border litigation is the element of sovereignty, especially in relation to the collection/obtaining of foreign evidence. In some jurisdictions deposing witnesses and proceeding with extra-judicial proceedings may violate domestic civil and criminal law. Because of the role of sovereignty in the process, cross-border disputes have led to efforts at harmonization of the area, through hard-law instruments in the international arena with the Hague Evidence Convention,^[26] and in the regional areas such as the Inter-American Convention on the Taking of Evidence^[27] and the EU Regulation on taking of evidence (recast)^[28] just recently revised.
11. In addition to treaties and regional regulations, this is also an area where there has been a longstanding effort to harmonize and obtain cooperation through soft-law instruments. The best known is the American Law Institute’s (ALI) work on a set of transnational rules of procedure,^[29] begun in 1997 under the then Director and Reporter, Geoffrey Hazard, and with the inclusion of foreign legal experts. The ALI subsequently partnered with UNIDROIT and produced the ALI / UNIDROIT Principles of Transnational Civil Procedure^[30] with co-reporters, Rolf Stürner (Reporter, UNIDROIT), Michele Taruffo (Reporter, ALI), and Antonio Gidi (Associate Reporter, ALI). Of relevance are:  Principle 16 Access to Information and Evidence,^[31] Principle 22 Responsibility for Determinations of Fact and Law,^[32] and Principle 31 International Judicial Cooperation.^[33] Subsequently, the European Law Institute partnered with UNIDROIT to produce ELI-UNIDROIT Model European Rules of Civil Procedure^[34] that were finished in 2020.^[35] As discussed in earlier chapters, efforts at harmonization have led to convergence in some domestic procedural systems.
12. Although this chapter does not focus on arbitration, it is worth noting that the issue of producing evidence receives attention in many of the arbitral institutions and the International Bar Association produced revised Rules for Taking of Evidence in 2010 that were modified again in 2020.^[36] These rules tend to overcome differences between the continental and the common law systems by enlarging the obligations of parties to produce means of evidence that are in the control of the adversary.

1.5        Obtaining the Content of Foreign Law

13. In the second area covered in this chapter, that of obtaining the content of foreign law for proceedings, there are well-known unsuccessful efforts at the Hague Conference on Private International Law at creating an instrument for more than a decade before being removed from the work agenda.^[37] The proposed work at the Hague Conference spanned a range of potential work-products, including a hard-law instrument, perhaps looking to the earlier Council of Europe’s London Convention,^[38] which had focused on obtaining the content of the foreign law which many have seen as ineffective and unknown.^[39] Other possibilities considered at the Hague Conference focused on access to foreign law through online portals but without an application to a particular issue, and the use of informal or soft-law networks to provide determination of foreign law issues. As will be discussed in more detail, this range of possibilities reflected the problem of obtaining the necessary consensus to devote further resources to the work at the Hague Conference and in particular to any hard-law instrument.^[40]

1.6        Judicial Cooperation

14. As we will see, there have been a range of efforts to provide for judicial cooperation, from soft-law agreements to formal instruments, as a mechanism to obtain the content and proper application of foreign law. The Hague Conference and its convention and post-convention tools have led the way and as will be discussed served as models for further collaboration. One also sees the efforts within the EU through required interaction under structures such as the European Judicial Network and the Digitalization Regulation ^[41] as discussed later in this chapter.

2        Obtaining and Using Evidence from Abroad

2.1        Diplomatic and Judicial Channels

15. Accessing evidence abroad has been traditionally considered as a problem of sovereignty as courts are not permitted to take evidence on foreign soil. In these instances, they may obtain assistance (cooperation) of a foreign court through letters of request or ‘letters rogatory’.^[42] The first question to be answered is whether the jurisdictions under examination respond to such requests only when obliged by a convention, or also in the absence of a convention, and in this case, whether assistance is subject to reciprocity.  
16. A foreign country's willingness to execute a letter of request is not based on any enforceable treaty but solely on comity, and perhaps an expectation of reciprocity. The court issuing the letter of request sends the request either directly to the foreign court, or through governmental authorities for transmittal through diplomatic channels.^[43] The executing judicial authority in the foreign country generally employs its local procedures to obtain the evidence or testimony of a person or entity over whom the foreign court has jurisdiction. The letter of request is then returned through the same route, thus often taking significant time to complete.^[44] 
17. Given the complexity and variety of circumstances involved with seeking evidence from abroad, the initial analysis requires determining: (1) from whom the evidence is being sought; (2) whether the request is voluntary or compulsory; (3) whether the information being sought is documentary or testimonial; and (4) whether the person or information is subject to any foreign laws restricting disclosure or access, often referred to as blocking statutes.^[45] When corporate entities are involved, additional questions may arise about actual location and ‘control’ of evidence.^[46]  Although the distinction between civil and criminal proceedings also may have an impact on obtaining evidence from abroad, criminal proceedings are beyond the scope of this chapter and often controlled by bilateral memoranda of understanding. The presence of a government as a party also affects the process.
18. This is one area where the civil and common law divide is noticeable, especially in connection with what evidence is obtainable.^[47] This difference is impacted by the role of the judge and the role of oral and written testimony.^[48] Many civil law countries refuse to execute letters of request that seek pretrial discovery or contain broad categories of documents, as is true as well under the Hague Evidence Convention and Article 23.^[49]  In addition, when the foreign country has a blocking or nondisclosure law, it will generally not honor a letter of request that would violate the foreign laws.  For example, in the United States evidence is obtainable both by the parties, rather than the court, and for pretrial use, that is prior to trial. The ALI/UNIDROIT Rules and the ELI/UNIDROIT Rules both reflect some convergence in their attempts to meld civil and common law procedures.
19. Since the letter of request is executed through the assistance of foreign judicial authorities, use of local counsel is almost essential. ‘Without the assistance of foreign counsel, resort to Letters of Request is likely to turn into a time-consuming and expensive effort in futility’.^[50]   Because a letter of request should be translated into the language of the receiving country and since local counsel must be employed, this form is obviously not the preferred means for obtaining evidence or testimony. In addition, even when a country is willing to execute a letter of request,^[51] its local procedures may not allow verbatim transcription or other formalities such as taking testimony under oath. Thus, the potential problems and the need for lengthy and costly procedures highlight the desirability of an international or regional treaty ensuring cooperation and adopting similar procedures and mechanisms that provide faster results. In addition, these instruments increasingly have forms and guides that help countries cooperate in the process.^[52]

2.2        International Treaties and Regional Agreements

20. The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters^[53] is in force in 66 jurisdictions^[54]. However, there have been studies showing its limited use, especially in countries that do not require its use, such as the US as established in 1987 by a major Supreme Court opinion.^[55]  In addition, its use in common law countries with discovery allowed after filing but before the final hearing on the merits (pre-trial) is limited through the ability of a contracting state to exclude pre-trial discovery from coverage.
21. The Evidence Convention has provided a link between different legal systems through letters of requests and diplomatic officers, consular agents, and commissioners. One of the particularly positive aspects is that the convention language used is not restricted to certain technology that would be dated after almost 55 years which unfortunately is the case with the Hague Service Convention and the use of ‘mail’.^[56] The Evidence Convention has grown with the new technology and at the periodic ‘Special Commissions’ to consider the practical operation of the convention^[57], new tools and technology have been approved, including a Guide to Good Practice on the Use of the Video-Link.^[58] One major question has been whether it has application to arbitration proceedings, which is also an issue for discovery outside of the convention.^[59] Finally, the development of model forms has helped encourage more efficient use of the convention in the multiple legal systems and languages involved in requests for taking evidence abroad. In fact, data from 2022 forward from the HCCH in connection with the 2024 Special Commission shows that requests have grown from at least 2224 in 2017 to at least 3470 in 2022,^[60] with the largest incoming requests (under Chapter I) directed at UK, United States, Germany, France, Netherlands, and Argentina.

2.2.1        General Provisions.

22. The Hague Evidence Convention basically provides two procedures for taking evidence, either by letter of request as outlined in Chapter I, or by diplomatic officers, consular agents, and commissioners as set out in Chapter II.  The letter of request mechanism is the primary method in many countries that have limited the use of commissioners and diplomatic channels. The letter of request procedure, limited to obtaining evidence ‘intended for use in judicial proceedings, commenced or contemplated’, utilizes a Central Authority, similar to the mechanism established under the earlier Hague Service Convention. A letter of request is a request by one judicial authority of another ‘to obtain evidence, or perform some other judicial act.’ The letter is sent to the Central Authority of the executing state.  The letter of request basically describes the testimony or documents sought, preferably as specifically as possible, as well as any method requested for obtaining the evidence, such as verbatim transcription.  Under the Convention, the executing judicial authority will apply its own procedures unless a special method is requested, in which case it will use that method if not contrary to the executing state's internal law or if not impractical.  In fact, this provision permits the executing state to refuse to provide verbatim transcription or in civil law countries not to allow cross-examination. The letter of request must be in the language of the executing country or include a translation. However, a letter of request in English or French must be accepted, unless the executing country has made a reservation under Article 33 and refuses to accept English or French. Several countries have refused to accept one or the other language and some accept only in their own language. The Convention specifies that the translation of a letter of request must be certified by a diplomatic officer, consular agent, sworn translator, ‘or by any other person authorized in either State.’  Under US law, diplomatic officers and consular agents are not authorized to act for the United States for these purposes.
23. A receiving state is obligated to execute a proper letter of request ‘expeditiously’ and to apply ‘appropriate measures of compulsion’ followed by the internal law of that country. The state may not refuse the letter unless it does not fall within the ‘functions of the judiciary’ or it considers ‘its sovereignty or security would be prejudiced.’ Although not specified as a basis for refusal under Article 12 of the Convention, a letter or request may be refused if the executing country has made a declaration under Article 23 that it will not execute a letter of request ‘issued for the purpose of obtaining pretrial discovery of documents as known in Common Law countries’. As a practical matter, of the 66 countries party to the convention as of June 2017, all but 15 countries have entered some form of declaration to Article 23, thus reducing the effectiveness of the Convention for purposes of pretrial discovery, of particular significance to those litigating in the United States with its emphasis and use on pre-trial discovery.^[61] 
24. Chapter II of the Hague Evidence Convention governs the alternative procedure of obtaining evidence by use of diplomatic officers, consular agents and commissioners.  Thus, no judicial action is necessary in the executing country, although permission from the foreign state may be needed, both for depositions of the requesting country's nationals and those of the foreign country or of a third country.  In general, this form of discovery is less effective, since it contains no means to compel equivalent to Article 10 for a letter of request but does provide for applying for assistance in compulsion, a process requiring additional time to obtain compliance. Article 33 allows a country to exclude part or all of Chapter II's procedures.  
25. Under either procedure of the Hague Evidence Convention, the witness may refuse to give evidence that is privileged or that he has a ‘duty to refuse to give’ under either the law of the executing country or the requesting country or if the executing country has chosen, of any other country.   The problem of foreign privileges may restrict the scope of the obtainable evidence where the executing country has broader privileges than those of the requesting country.^[62] 
26. In general, the Hague Evidence Convention has limitations that make its effectiveness questionable even for those contracting states. First the question of sovereignty remains and of course there is an explicit exclusion.^[63] Second, the declarations under Article 23 excluding pre-trial discovery, mentioned above, has a significant impact in situations where the legal system allows party-initiated pre-trial discovery, the US being the most significant example. Third, even in countries party to the convention, the convention may not be given a mandatory application, as is the case in US courts. Although the Convention has served as a model for other instruments, such as the European Regulation on the Taking of Evidence,^[64] the Convention has not yet created convergence in the field. In fact, some of the changes in the EU Regulation have in fact impacted suggested practices for the operation of the Hague Convention.

2.2.2        Regional Efforts

27. At the regional (EU) level, the situation has not been much different but with the new IT regime, the situation has already changed.  In 2001, an Evidence Regulation was adopted along the lines of the Hague Convention^[65] to improve judicial cooperation between EU member states, especially when not all EU member states were also contracting states to the Hague Evidence Convention. It has been ignored by most courts and lawyers.^[66] The CJEU has ruled that the Evidence Regulation is optional and does not need to be followed by the courts of Member States if their national procedures are more efficient.^[67] Following several studies of the practical operation of the 2001 Regulation, a new regulation, a recast, was adopted abrogating the previous one and most of it entered into force on 1 July 2022.^[68] It encourages the use of IT tools in the cross-border taking of evidence and facilitates video-conferencing. All communications and document exchanges are to be carried out through an IT system such as e-CODEX. The e-CODEX Regulation entered into force in June 2022^[69] and seeks to ensure ‘the effective access of citizens and businesses to justice and facilitating judicial cooperation in civil, including commercial, and criminal matters between the Member States’.^[70] The Recast also provides a broader definition of ‘court’ and other authorities competent under national law to take evidence and allows for delegation of these tasks to notaries and court clerks.  The videoconferencing should offer an advantage which has become more evident since the COVID experience. The actual use and advantages for parties and courts remains to be seen. But the ability to have cross-border hearings within the EU offers a model where the actual prior concerns with sovereignty and formalism of entering into a foreign country appear to be erased in cyberspace.^[71]

2.2.3        Inter-American Convention on the Taking of Evidence

28. The OAS Inter-American Convention on Taking of Evidence was adopted on January 13, 1975, in Panama City. There are fifteen contracting states to the Convention.^[72] The Convention provides a method for taking evidence in one member-state and using it in another member-state’s proceeding.^[73] The Additional Protocol to the Inter-American Convention on Taking of Evidence Abroad of 1984^[74] supplements the Convention and the Inter-American Convention on Letters Rogatory administers the procedure for service of process.^[75] Each member state must designate a central authority that would carry out the protocols associated with the convention and letters rogatory for the taking of evidence.^[76] The central authority receives, executes, and processes the letter rogatory for communication between member states in the taking of evidence.^[77] The letter rogatory must specify the evidence, clearly describing the type of information being requested and it should be executed in accordance with the laws and procedural rules of the state of destination.^[78] One problem with the convention is that it is dated, but two scholars recently have urged the use of information and communication technologies to help improve international cooperation with these conventions.^[79]

2.3        Individual and Multilateral Efforts        

29. The Nordic States have in place multiple mechanisms for cooperation through the Nordic Council of Ministers and the Nordic Council which provide official co-operation among Denmark, Finland, Iceland, Norway, Sweden, the Faroe Islands, Greenland and Åland.^[80] While these countries have varying degrees of digitalization in their courts, we are aware of no agreements for judicial cooperation between States of the type found in the European Union.
30. Although many common law jurisdictions especially have procedures outside of the international treaties for judicial cooperation in taking of evidence, perhaps the best known and most frequently used mechanism is the United States discovery in aid of foreign proceedings (28 USC Section 1782). This has become a much-used instrument to permit foreign parties to use US-style (electronic) discovery for proceedings abroad. ^[81] Indeed, in some countries, the mechanism is used to avoid the Article 23 Declaration not to include pre-trial discovery under the Hague Evidence Convention.^[82] Under Section 1782, a US federal district court (federal trial courts) can order any person who ‘resides or is found’ in the judicial district to provide discovery ‘for use in a proceeding in a foreign or international tribunal’.^[83] The statute requires that the person from whom discovery is sought resides or is found in the district which has led to litigation about what is sufficient to be ‘found’ and if ‘tag jurisdiction’ (through personal service in the jurisdiction) is sufficient. In addition, there has been significant litigation on what types of ‘proceeding before a foreign or international tribunal’ are included, particularly in connection with commercial arbitration. The US Supreme Court resolved that recently in the ZF Automotive Group^[84] where it held that the provision could not be used in foreign private arbitration.
31. In an earlier 2004 US Supreme Court case, Intel Corporation v Advanced Micro Devices, Inc^[85], the court set certain factors to guide a district court in deciding in its discretion whether to grant the request.^[86] The court also stressed that Section 1782 was meant not only to facilitate fact-finding in litigation in foreign tribunals but also ‘to encourage foreign countries by example to provide similar means of assistance to our courts’.^[87] In keeping with the spirit of Section 1782, one survey found that the requests were granted in 90% of the cases,  and often in ex parte decisions.^[88] The hope for reciprocal treatment in foreign courts has not met with as much success, leading to criticisms from US parties of the unequal playing field in foreign litigation.
32. In addition to specific country legislation, one finds that there are significant bilateral and multilateral informal agreements between countries both in connection with civil and criminal matters, sometimes limited to specific areas of cases, such as competition law, collective actions, and intellectual property.
33. At the EU level, the procedural harmonization in intellectual property litigation,  cartel law and consumer protection affects evidence in the respective areas of law, which often apply in cross-border cases: parties must disclose to the opponent information and means of evidence in their control; courts may order provisional measures to preserve evidence, which is under the control of the other party or third parties, including competition authorities.  These developments have changed the national approaches regarding the disclosure of evidence, at the domestic and cross-border level (within the EU), especially as seen in the cartel and competition law areas.^[89] 

2.4        Softlaw Efforts at Harmonization and Cooperation for Taking of Evidence^[90]

2.4.1        ALI/UNIDROIT Rules

34. The best known soft-law effort at harmonization in the area of cooperation is the work on a set of transnational rules of procedure which the American Law Institute began in 1997^[91] under the then Director and Reporter, Geoffrey Hazard, and with the inclusion of foreign legal experts.^[92] The project subsequently partnered with UNIDROIT in 2000 and produced the ALI/ UNIDROIT Principles of Transnational Civil Procedure^[93] and Rules, with co-reporters, Rolf Stürner (Reporter, UNIDROIT), Michele Taruffo (Reporter, ALI), and Antonio Gidi (Associate Reporter, ALI). Of relevance are:  Principle 16. Access to Information and Evidence,^[94] Principle 22. Responsibility for Determinations of Fact and Law,^[95] and Principle 31. International Judicial Cooperation.^[96] 
35. The accompanying ALI/UNIDROIT Model Rules of Civil Procedure, provide rules that can be adopted or modified by jurisdictions (or arbitral centers^[97]). The rules stress their use for fair procedures for litigants to resolve disputes related to transnational commercial transactions and promote judicial cooperation among courts of various legal systems.^[98] Rules 21-28 govern procedures pertaining to discovery and evidence.^[99] Rule 21 and Rule 22 focus specifically on the disclosure and exchange of evidence between parties and the protocols for various stages of hearings.^[100] Rules 23-28 concentrate on how to obtain certain types of evidence, like depositions, expert evidence, and privileged evidence and also include means for determining how evidence is relevant or admissible, and the effect to be given to the evidence.^[101]

2.4.2        ELI/UNIDROIT Model European Rules of Civil Procedure

36. The ELI UNIDROIT Model European Rules of Civil Procedure expand on the existing ALI/UNIDROIT Principles of Transnational Civil Procedure by providing more detailed rules that are aimed at assisting the European Union with its current legal developments and traditions, while also providing a framework for other legislators and policymakers.^[102] The project began in Vienna in October 2013, and  the rules were approved by the ELI Council and membership in 2020 , and UNIDROIT also approved the work product in 2020.^[103] The ELI UNIDROIT Rules were developed by various Rapporteurs in the Steering Committee and Working Groups.^[104] Discovery and evidence are governed by ELI Rules 87-129.^[105] Specifically, Rule 128 concerns taking evidence within cross-border member states of the European Union through proceedings occurring in that member state or for ordering production of evidence from a foreign court.^[106] Under Rule 128, the parties may choose to rely on Council Regulation (EC) No 1206/2001 of 28 May 2001 for cooperation between member states.^[107] The Rules were finalized in September 2020, prior to the official date of the new Evidence Regulation (recast),  but the reference to the 2001 Regulation is intended to include the Recast.^[108]  Without relying on the 2001 Evidence Regulation, Rule 128 also permits the courts to summon witnesses from member states, appoint experts from member states, require production of documents and evidence located in a member state, or order access to evidence from potential parties or non-parties in a member state.^[109] Rule 129 concerns taking evidence in non-member states and requires the proceedings to rely on the Hague Evidence Convention or other relevant conventions for proper procedure.^[110]

2.4.3        International Bar Association Rules of Evidence

37. The International Bar Association (IBA) has produced the IBA Rules on the Taking of Evidence in International Arbitration which are soft-law rules designed to be used in international commercial arbitration. The IBA Rules offer an example of the harmonization of different legal systems and traditions for cross-border dispute resolution which may suggest ways to harmonize these areas in litigation, especially in the growing number of international commercial courts.
38. Earlier versions were available from 1983, but major changes occurred in the 2010 version. That was updated by the current 2020 edition which also incorporates some of the information and technology advantages.^[111] The Rules have been successful in serving as a model soft-law instrument because of its constant development to reflect technological advances and flexibility to accommodate various institutional structures.^[112]  The IBA Rules also incorporate input from the arbitration public.^[113] The IBA amended Rule 1.3, for example, to address conflicts between the general institutional or ad hoc rules governing the arbitration, the General Rules,^[114] and the IBA Rules of  Evidence by requiring the Arbitration Tribunal to ‘apply the IBA Rules of Evidence in the manner that it determines best in order to accomplish, to the extent possible, the purposes of both the General Rules and the IBA Rules of Evidence, unless the Parties agree to the contrary.’^[115]  By recognizing the conflicts between the IBA Rules of Evidence and the institutional rules underlying the arbitration, the Rules offer the flexibility to be used in multiple institutional settings.^[116] The IBA also amended Rule 8.2 to include remote hearings^[117] and added Rule 2.2(e) to include cybersecurity and data protection for the most ‘efficient, economical, fair procedure.’^[118]

2.5        Conclusion

39. There may be an emerging trend to allow parties access to information in cross-border cases, as seen in international treaties and regional instruments, as well as in the individual legal systems. This trend is evident in significant soft-law efforts, discussed above.  In addition, the increasing use of new technologies, such as video links, electronic mechanisms as illustrated by the EU Evidence Regulation (recast) and eCODEX have made the possibility of cooperation more of a reality. The impact of the COVID pandemic accelerated the increase in use of electronic means to handle distance, as well as having provided a laboratory for some of the issues that arise with the new technology.
40. There are of course questions of authentication, security, and language/translation that were noted with the increased use of the technology but have also been addressed with developments in the electronic medium. Although there have been many advances, there is still an issue of limited resources for this technology. Also, there is the need to bridge civil and common law systems with different views on pre-trial discovery, oral versus written evidence, and the role of judges and parties in the respective litigation process. We may see changes as they occur in specialized areas such as intellectual property, consumer protection, competition, and administrative law areas.^[119] We also may find more harmonization as international commercial courts gain momentum and develop to handle cross-border disputes.

3        Determining and Applying Foreign Law to the Merits^[120]

3.1        Introduction

41. The determination of a cross-border dispute increasingly may require the application of foreign law. Nor is this need limited to dispute resolution but also is important for transactional planning by individuals and corporations and administrative work of governmental agencies. There are two aspects of the problem, applying the foreign law and determining the content of the foreign law. In some legal systems, the need is more pronounced as to determining the content because the rules for applying foreign law may require comparative analysis of the content of the potential laws to be applied.^[121] In other legal systems, especially with codified choice of law regimes or those that do not allow foreign law to be applied, the comparative analysis may be less relevant.
42. The content of the foreign law may also be necessary for more than just determining the substantive legal issues but may also be important to certain procedural mechanisms. For example, in those systems that use a forum non conveniens approach, the need to apply foreign law may be a factor in the analysis, complicating even the decision if and where the litigation should proceed.^[122] Also in some systems where there is no bilateral or multilateral instrument concerning judgment recognition in effect, courts considering enforcing foreign orders and judgments may apply the doctrine of reciprocity and that requires a determination of the law of the foreign jurisdiction. Thus, from transactional planning to dispute resolution, applying foreign law may be an issue when the transaction or dispute contains any non-domestic element.
43. The difficulties of determining and applying foreign law are not a trivial matter.^[123] They may increase costs, lead to the unjust determination of a case; to the failure of legitimate expectations of the parties; even further, to the violation of a fundamental right.^[124]  These problems of applying foreign law have been noted in detail in the efforts at creating a European private international law and the academic attempts to address the issue as in the Madrid Principles of 2010.^[125] Too often courts either fail to apply the foreign law or misapply it. ^[126]
44. The possibility of harmonization in applying foreign law, as discussed in more detail below, was considered for a decade at the Hague Conference on Private International Law but is unlikely because of the major theoretical differences in the treatment of foreign law. This creates difficulties for individual jurisdictions, depending on the nature of their private international law rules. However, mechanisms for cross-border cooperation can help in the application of foreign law, ranging from use of judicial communication to networks of experts, some of which will be discussed as potential models. Along with mechanisms for cooperation, there is a need to make domestic legal materials and case law publicly available as part of the application of foreign law. The role of cooperation then is essential for determining the content of foreign law (the evidentiary aspect) and the second step of deciding what law to apply.

3.2        Applying a Foreign Law to the Merits

45. The need to apply foreign law is increasingly a global problem. For example, in the European Union the universal application of the Rome I and II regulations^[127] means that courts there must determine not only the law of other Member States but also now increasingly the law of third countries, non-E.U. members.^[128] Courts and administrative agencies^[129] around the world need to find reliable and cost-effective means to ascertain the content of foreign law.^[130] The prevailing mechanisms are insufficient, unreliable, or both,^[131] and often fail to meet the need for quick responses. In addition, there is a problem of obtaining accurate interpretation of the foreign law through the appropriate comparative law lens.
46. Although there are examples of regional instruments, such as the London Convention^[132] and the Montevideo Convention,^[133] these conventions have not been widely used and are at least 45 years old.^[134] The London Convention of 1968 is applicable to civil and commercial law, civil and commercial procedure and judicial organization. A Protocol from 1978 extended the Convention to criminal matters. The Council of Europe, recognizing the limited use of the convention, launched a study with questionnaires in 2022 to determine why the Convention was not used more (‘not enjoyed greater success’) and how more could be done.^[135] The Report provides several ways in which the Convention could be improved, recognizing that one major problem is the lack of knowledge about the Convention, especially by legal practitioners.  Some countries rely on bilateral agreements which are often limited in scope (restricted, for example, to civil and commercial matters or to certain subject areas such as competition law).
47. The burgeoning need to determine the content of foreign law in all types of cross-border cases - from commercial to family to criminal - and the absence of efficient and workable mechanisms has resulted in increased interest in developing models for cross-border cooperation. The Hague Conference, as discussed in more detail below, worked on the issue of foreign law for almost a decade, receiving strong support from the European Union. Its work on access to foreign law included both being able to find the content of the foreign law and being able to apply it to the problem - creating a portal to the information and a uniform means of access, and then addressing the cooperative exchange to determine the law to be applied.
48. In general, common-law countries have been more reluctant than civil law countries to consider the possibility of an instrument to provide for determining the content of foreign law, perhaps because for common-law lawyers, the question of foreign law is more focused on how the law applies to certain facts, and there is a reluctance to view law in isolation. One can compare the approaches to the question of whether there is personal or adjudicative jurisdiction. For example, under US law the determination is both constitutional and factual, including a balance of fairness factors as part of the analysis. In contrast, in the European Union, the Brussels Regulation provides for jurisdiction based on the nature of the claim and its relationship to forum, and this is done by code. If you asked a common-law judge whether there is personal jurisdiction, it would not necessarily be clearcut or determinative.^[136]

3.3        Attempts at Harmonization

49. The studies in the last 20 years^[137] on applying foreign law which were frequently related to potential mechanisms to harmonize the area confirmed the existence of a well-known theoretical divide between systems considering foreign law as law (thus to be applied ex officio and subject to the iura novit curia principle), and systems where it is characterized as a fact (thus to be pleaded by the interested party). But as a major study of the treatment of foreign law by the International Academy of Comparative Law concluded, ‘the two-tier characterization of foreign law as ‘law’ or ‘fact’ no longer yields fruitful or conclusive results. ... Although the starting point on how foreign law is treated differs in civil law and common law jurisdictions, the practical outcome comes closer than would appear at the outset.’^[138] For example, Germany belongs to the first block, Canada to the second. In Germany, Section 293 ZPO requires that the court investigate the content of the foreign law. Usually, the court requests an expert opinion from a university institute specializing in private international and comparative law.^[139]  Conversely, foreign law is analogous to fact in Canadian courts. Where the applicable choice-of-law rule designates a foreign law, the party seeking its application must invoke it for the court to use it in determining the merits. Courts in Canada will not raise a choice-of-law question proprio motu; the party invoking foreign law must prove it, typically through the use of its own expert(s).^[140] Quebec law has relaxed the rule, allowing the judge to seek evidence.
50. In the United States, federal courts in the US since 1966 have moved to treating foreign law as a question of law and subject to appellate review de novo, but the different circuits are inconsistent in their willingness to determine   the content of the foreign law themselves. Some see it as the court’s responsibility—with the help of the parties and their experts; others treat the failure to provide the content as a form of waiver of the foreign law being applied or an acceptance of forum law.^[141] State courts within the US have generally followed the federal rule that makes the issue one of law and therefore not subject to a burden of proof, although some courts still treat the need to establish the content of foreign law as not receiving judicial notice and with an evidentiary burden imposed on a party seeking to use the foreign law.^[142] 
51. In Spain, under the International Legal Cooperation Act, where foreign law is a procedural fact, lex fori applies in any instance of a party failing to prove foreign law. However, even if a party fails to do so, the court can step in, ‘cooperating in the accreditation of said content.’ The courts have discretion in determining the value of proof of the foreign law. Spanish courts will look to reports on foreign law although these reports are not binding.^[143]
52. It is commonly acknowledged, though, that no jurisdiction brings the theoretical approach to its final consequences in practice.^[144] France provides a good example, with the French Cour de cassation adopting a mixed system with respect to foreign law under doctrinal influence.^[145] Starting in 1991, Quebec also has progressively embraced a mixed approach in order to overcome the challenges of ascertaining the contents of foreign law.^[146] 

3.4        Attempts at the Hague and in the EU

53. Attempts to address the difficulties associated with the application of foreign law through harmonized rules have been made in international circles, such as the Hague Conference,^[147] and in regional organizations such as the EU, from about 2008 on. However, the Hague Conference project was removed from the Agenda in 2015 as there was not sufficient consensus to pursue an instrument, reflecting also some of the differences in the civil and common-law worlds mentioned above.^[148] Normative solutions have not been endorsed either in the privileged legal environment of the EU, where a more modest legislative intervention helps avoid the problem by minimizing the occasions where the application of foreign law is required.
54. Some international and regional hard law instruments, such as Hague Conference conventions or regional or national codifications of private international law, do minimize the problem of determining what law to apply in cross-border matters where they unify the conflict of law rules. And there are soft-law instruments that attempt to provide uniform rules for the choice of law and thus minimize the variations in what law is applied, such as the Hague Principles on Choice of Law in International Commercial Contracts.^[149] That still leaves the difficulty of ascertaining the content of the foreign law that would be applied. It is to that problem which the Hague Conference turned in 2007 after it quickly realized that a project for a convention on the harmonization or unification of rules on the treatment of foreign law was not likely to gain consensus of member states or be feasible. As mentioned, the project was removed from the active work in 2015.^[150]  Yet the work at the Hague Conference, which coincided with an increased period of globalization and cross-border trade, spotlighted the lack of uniformity in applying foreign law and the need for easy, reliable, and fast means of access to the content of the foreign law. The work at The Hague Conference on access to foreign law also was reflected in some existing Hague conventions as well as tools being developed to help with the practical operation of some of the conventions.^[151]

3.5        Models

55. Several models for determining foreign law already exist and have been studied by scholars and academic groups. The difficulty of resources is always cited as a reason for the lack of access to foreign law. While this continues to be a problem, the burgeoning of new technology and artificial intelligence suggests a rapidly expanding access to foreign law content. The inherent need to understand the law within its context cannot be solved as easily with AI, especially in common law and non-codified legal systems and traditions.
56. Existing mechanisms for cross-border cooperation range from informal memoranda of understanding, such as those currently in effect between New South Wales and the New York state courts, where there is no binding obligation,^[152] to multilateral conventions that require reciprocal performance, such as seen in the Hague Evidence Convention, and provide a framework for future use.  The exchange of information can occur through administrative units, such as Central Authorities, or may be in the form of direct judicial communication, which, as discussed below, has been particularly successful in the context of the 1980 Hague Child Abduction Convention.  A hybrid option in the form of a cross-border ‘certification’ process, similar to the one currently used by many federal courts in the United States to resolve questions of uncertain state law, is another possibility.^[153]  Soft-law models that rely on networks of lawyers or ‘think tanks’ could also be incorporated into either a voluntary or mandatory system of cooperation.^[154]
57. There is an increasing number of models to look to for examples of enhanced judicial and administrative cooperation. Several of the modern Hague conventions rely on cooperation among contracting states, both between their administrative units or Central Authorities, and their courts, through direct communication. One can look for guidance from the Evidence Convention^[155] and the family law conventions, such as the 1980 Child Abduction Convention^[156] and the 1996 Child Protection Convention.^[157]  The Hague Conference instruments have had a direct impact on EU regulations and internal practices. In addition, the Hague Conference’s increasing use of Special Commissions on the Practical Operation of many of the conventions in the family law and legal cooperation areas to produce ‘post-convention’ soft-law Guides to Good Practice, Practical Handbooks, forms for requesting and providing information under the convention and now shared on the website, and other tools enhance cooperation and provide open and free access to users of the conventions—judges, administrative agencies, lawyers, and persons impacted by the conventions.
58. The 1980 Abduction Convention is a particularly good example of mechanisms both in the convention itself and developed by the Hague Conference Permanent Bureau with its member states to help provide access to the law that is involved in all the contracting states.^[158] Within the convention itself,  Article 14^[159] provides what is equivalent to a provision for taking judicial notice of foreign law in connection with the determination that the taking or retaining custody of the child is wrongful and in breach of custody rights under the convention.^[160] There is a matching provision, Article 15,^[161] which allows the court or the Central Authority in the contracting state that is being asked to return the child to obtain an opinion from the authorities of the state of the child’s habitual residence on whether they deem the child wrongfully removed or retained as defined under Article 3 of the Convention. Article 14 has been used^[162] while Article 15 has not been as successful. In some legal systems, there is no possibility of getting a legal determination and even if possible, the long delay far exceeds the need for expediency in return and the 6-week goal.^[163] In fact, while the convention provides a formal provision requiring an opinion with the help of the Central Authorities or administrative agencies, the development and increased use of the International Hague Network Judges have provided direct communications in this area faster and more effectively than Article 15.
59. One could easily see the addition or creation of a binding instrument, using as a model a system of Central Authorities, to provide foreign law.  If the Central Authority has limited resources, it could conceivably forward the request to a network of academics or lawyers to prepare the answer—but of course, that raises questions of cost, delay, reliability and impartiality.  The model of providing opinions under Article 15 has the potential to reach more broadly and to be incorporated into soft-law and hard-law in regional instruments or bilateral agreements. For the 1980 Abduction Convention, there are also country profiles posted online, suggested forms, multi-volume Guides to Good Practice, and related projects of judicial cooperation—the soft-law Principles of Direct Judicial Communication^[164] and the International Hague Network Judges structure.
60. Another mechanism that has helped with providing the content of foreign law and access to how other contracting states interpret provisions in the 1980 and 1996 Conventions, including what is ‘wrongful removal or retention,’ is the database created to provide decisions of contracting states construing the 1980 Convention. This database, INCADAT,^[165] is especially important to provide users of the convention free access to opinions in one database and helps further the Convention’s intention of uniform application.
61. The same need for access to foreign law interpretation and content is evident in conventions such as UN Convention on the International Sale of Good^[166] (CISG) from 1980. The convention itself in Article 7 requires uniformity in application.^[167] The UNCITRAL Secretariat created tools to help further this purpose which was especially important in the years when the convention first entered into force in 1988 when there was limited technology and access to the foreign law. UNCITRAL created a database on cases construing the convention, CLOUT (Case Law on UNCITRAL Texts Digest),^[168] using national reporters in each contracting state. This database has helped achieve the uniform application and provided access to foreign law.

3.6        Enhanced Judicial Cooperation

62. While not specifically replying to a formal request, direct judicial communication concerning the content of the foreign law is an easy step forward from the model of Hague Conventions with enhanced cooperation between Central Authorities, such as in the 1996 Child Protection Convention^[169], to considering ways for cooperation between judiciaries.  In practice, this model has been followed with the Hague 1980 Convention and the Hague Network of Judges established to cooperate with other judges—and the related Principles for Direct Judicial Communication.^[170]  The direct judicial communication process has been criticized by some for its ex parte nature and concerns with confidentiality.^[171] Nonetheless, it is also being suggested for the current work at the Hague Conference on direct jurisdiction in connection with Multiple Proceedings.^[172] The model has also been used in the European Union with the European Judicial Network which was set up in 2002 for civil and commercial matters.^[173] 

The Network’s main tasks are direct contacts and case-handling between national Network contact points, facilitating cross-border access to justice through information given to the public and to practitioners through factsheets and other publications available at the European e-Justice Portal in all Union languages, evaluating and sharing of experience on the operation of specific Union law instruments in civil and commercial matters.^[174] 

63. It has met with mixed success but represents a significant investment and commitment of resources and time.^[175]

3.6.1        Certification

64. Certification is a variation on the direct judicial communication. One finds this model in US practice.  The certification process is available in some jurisdictions and may involve a certification from a federal court to the highest court of a state on a question of uncertain state (not federal) law.  The certification gives very specific facts to use in deciding how the state law applies, reflecting the common law tradition.  An example is Rule 52 of the Seventh Circuit which allows the court when faced with ‘questions arising under the laws of [a] state which will control the outcome of a case pending in the federal court’ to ‘certify such a question to the state court in accordance with the rules of that court’ and to ‘stay the case […] to await the state court’s decision’.^[176] The US process can be time-consuming and depends on cooperation from the state court.  A similar process is available in a very limited number of states and jurisdictions allowing certification between states (rather than between federal court and state court) based on a uniform law.^[177] This uniform law has the potential to include certifications to or from the courts of Mexico or Canada if a state chooses to include the provision in its own act.^[178] 
65. This model of courts cooperating on answering a question of content and interpretation of their law for another court has been taken up in the international context—with some MOUs—specifically the two initiated by Judge Speigelman of the Supreme Court of New South Wales in Australia, one with the New York state courts and one with the Supreme Court of Singapore. To facilitate the practice, the Supreme Court of New South Wales and of Singapore adopted procedural rules.^[179] To avoid problems with US law and the prohibition against giving ‘advisory’ opinions, under the New York agreement, the judges answer voluntarily, and the opinion is not binding. There is also an example of the Supreme Court of Singapore cooperating with the Commercial Court in London to answer a question of English law.^[180] There are a few other ad hoc examples.^[181]  So far the MOUs have been very limited, with one case reported from Australia.^[182] But the model offers a possibility of combining direct judicial communication with a process for obtaining a written opinion on the application of a foreign law.

3.6.2        Clearinghouses and Networks

66. One last example is that of a clearinghouse or network of experts to answer questions of foreign law, much as a certification process might work but not with judicial cooperation.  The examples frequently given are the Max Planck Institute in Hamburg or the Swiss Institute of Comparative Law in Lausanne.  During the consideration of the Hague Conference work on foreign law, thought was given to whether an individual country, such as the United States, could set up a network of academics and attorneys to assist in answering incoming requests for questions of foreign law.  In connection with a US reply to a Hague Conference Questionnaire,^[183] US lawyers were surveyed through the ABA International Section about their use of other networks, such as the one in Hamburg, or setting up a US version.  Lawyers voiced concern with problems of delay, costs, neutrality, and reliability.

3.6.3        Amicus/Friend of the Court Briefs

67. One simple model utilized in some recent US cases where foreign law is crucial to the decision is that of briefs of amicus curiae. The filing by foreign governments and regional and intergovernmental organizations in US courts has increased. Since 1978 there have been approximately forty of these filed in the US Supreme Court, including in criminal cases, such as looking at customary ‘international law’ on death penalty for minors.  One of the better-known examples is the European Union’s brief in Intel v Advanced Micro Devices^[184] in 2004 in connection with discovery cross-border under 28 USC Section 1782.  The EU filed an amicus brief indicating that it was not a ‘tribunal’ for purposes of the US statute in question, which provides the basic requirements and parameters of the scope of discovery available for interested parties seeking information located in the United States for use in foreign proceedings.  

The European Commission is taking the highly unusual (for it) step of appearing as an amicus curiae in this case because it is deeply concerned that 28 USC § 1782 (‘Section 1782’) could be interpreted and applied in a manner like that embraced by the Ninth Circuit below that would directly threaten the Commission's enforcement mission in competition law and possibly interfere with the Commission's responsibilities in other areas of regulatory concern as well. Far from its intended, laudable purpose of aiding the tribunals of foreign sovereigns, Section 1782 could become a threat to foreign sovereigns if interpreted expansively by this Court.^[185]

68. The concern with amicus briefs of course is the question of neutrality and impartiality, especially where the sovereign or a related entity is a party or has a vested interest in the outcome of the litigation, as illustrated by a recent case using an amicus to provide content of foreign law, Animal Science.^[186] On the other hand, where the sovereign’s interpretation of its own law is not a preliminary question or the sovereign is not directly in a partisan position, this process could be helpful and could be viewed as analogous to a certification process.  In light of the decision in Animal Science, courts are free to accord the opinion of the amicus with appropriate weight on a case-by-case basis, reviewing factors such as

[r]elevant considerations include the statement’s clarity […]; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.^[187]

69. The question is whether these amicus briefs are beneficial and if so, how they can be encouraged for their instructive value, especially in courts which fear the mysteries of foreign or international law.  Can we find a way to incorporate these amicus briefs in a more neutral manner, yet continue to profit from the potential use of the amicus to put the foreign or international law in context?  One important question is whether this model could be incorporated into existing practice in both common law and civil law systems.

3.7        Conclusion

70. Cooperation has traditionally required the existence of bilateral or multilateral conventions. Many bilateral conventions providing for reciprocal assistance in legal matters refer expressly to exchanges of information regarding substantive law – although they do not usually establish a procedure for the purpose.^[188] Private international law multilateral conventions done at The Hague regarding specific family matters include rules to the same effect.^[189] Furthermore, multilateral conventions ad hoc have been adopted within the frame of regional organizations setting up a system of administrative cooperation: the best-known ones being the 1968 London Convention and Protocol of 1978 on the information on foreign law of the Council of Europe, and the 1979 Montevideo Convention on proof of and information on foreign law, registered by the Organization of American States in 1986.^[190] But as discussed earlier, these are dated and have not proven to be particularly helpful to litigants.
71. In addition to these conventions, there is an emerging trend both at the Hague Conference and in the European Union to promote, or even to impose, direct judicial communication in specific fields. These relate to child abduction and insolvency, which theoretically could be of use also regarding the exchange of information on the foreign law as applicable to an open procedure. Other legal systems as we have seen have taken up the model with informal memoranda of understanding.^[191] 
72. Since harmonization of both treatment of foreign law and the application do not seem possible at this time, mechanisms for increased cooperation, such as through direct judicial cooperation, and means to increase easy and free access to the content of foreign law appear to be the best paths forward at the moment.

4        Harmonization Through Communication and Digitalization: The Future Is Now

73. As we have seen, cross-border cases often require obtaining evidence as well as applying foreign law. And that means determining the content of that foreign law. The underlying link is access to the foreign law. Today that access is being provided through digitalization and communication between judicial systems. We have looked at some suggested models and examples of systems utilizing some mechanisms. There is no better example today than in the European Union where technology through digitalization is making judicial cooperation a reality within the EU. And the EU Unified Patent Court today is a microcosm of these multiple trends of increased judicial cooperation and increased access, and digitalization mentioned in Sections 2 and 3 above.^[192]
74. We have made reference to the EU Regulation on digitalization and also to e-CODEX.^[193] E-CODEX allows direct digital communication between judicial authorities and parties within the EU as part of the EU political priority of digitalization. The system was developed by 21 Member States with the participation of other third countries/territories and organisations between 2010 and 2016. The total costs of developing the system were about 24 million Euro, of which 50% were funded by the EU and 50% by the participating Member States.^[194] The Digitalization Regulation of December 27, 2023, establishes a uniform legal framework for the use of electronic communication and digital tools in cross-border legal proceedings. It covers communication between competent authorities/natural or legal persons; the use of videoconferencing or other distance communication technology; the application of electronic signatures and electronic seals; the legal effects of electronic documents; and electronic payment of fees. The Regulation establishes that communication between competent authorities of different EU Member States, as well as communication between competent authorities of different Member States and between a national competent authority and EU body or agency, shall be carried out through a decentralized IT system whenever possible. In addition, the EU has created an EU Justice Scoreboard, which includes a specific section on digitalization developments in the Member States.^[195] The Scoreboard’s purpose is described as:

to assist the Member States improve the effectiveness of their national justice systems by providing objective, reliable and comparable data. Effective justice systems are essential for implementing EU law and for upholding the rule of law and the values upon which the EU is founded. They ensure that individuals and businesses can fully enjoy their rights, strengthen mutual trust, and help to build a citizen-, business- and investment-friendly environment.^[196]

Thus, all these regulations strive to provide common integrated technological means for judicial cooperation as well as access to the law.

75. Perhaps intellectual property and cyberspace have created an environment that allows for cooperation in ‘crossborder’ dispute resolution and some harmonization of the underlying legal concepts. An early example is the Uniform Domain-Name Dispute-Resolution Policy (UDRP)^[197] set up by ICANN^[198] to handle domain name disputes in 1999 and administered by the WIPO Arbitration and Mediation Center.^[199]
76. Today, the fully digitalized United Patent Court^[200] started operations in June 2023, with 17 contracting states.^[201] Since the start of operations on 1 June 2023, the Court has received a total of 411 cases.^[202] The UPC offers a uniform framework specialized for patent litigation at a European level, hearing both infringement and revocation actions. It has exclusive jurisdiction in respect of ‘classic’ European patents and European patents with unitary effect (Unitary Patents).^[203]  The Court comprises a Court of First Instance, a Court of Appeal, and a Registry. It has its own rules.^[204] Its judges come from all over Europe. The case management and the actual proceedings are all handled online, and hearings are by videoconferencing. The cases are all available online as well, giving access to the law as it has been developed. The parties and judges can communicate through this structure and digital environment. Thus, digitalization makes access available, and the underlying harmonization of the substantive law has allowed for a system of harmonized procedure and use of foreign law--- a model of the future for other countries and regions that address specialized areas of the law that have extensive cross-border elements. The UPC takes the UDRP and WIPO system and fully develops the online environment for complicated cross-border disputes.
77. The framework of European Union and competence allows the harmonization that is not yet possible through unrelated legal systems with no overarching legal structure. One can imagine the EU’s model being followed in other areas of regional cooperation and perhaps in international organizations with global members, including the Hague Conference on Private International Law, UNCITRAL, UNIDROIT, and more specialized areas such as WIPO.

5        Pro-National Bias?

78. There is limited empirical evidence of how often there is a pro-national bias in the result favoring the litigant domiciled (or holding the nationality) of the forum State and against the foreign litigant. If one found open hostility, in the context of a foreign investment treaty, it might trigger investment arbitration proceedings to obtain compensation from state.^[205] One mechanism to obtain some advantage is that of forum selection clauses, especially when one has unequal bargaining power and when these clauses are one-sided, as used in some areas such as the financial sector. In some legal systems, no particular protection is given to weaker parties such as consumers and the forum selection clause can be used to gain an advantage—procedural or substantive, even without a choice of law clause. From a procedural standpoint, forum selection clauses can allow concentration of cases in a forum that is less friendly to defendants or which limits procedural mechanisms such as collective redress actions. There are cases where powerful parties use forum selection clauses to concentrate litigation in slow (and expensive) jurisdictions.^[206] Individual legal systems may provide protection to foreign nationals.
79. The second aspect of pro-national bias is that which may show up in the application of law that favors the litigant domiciled in the forum state against the foreign litigant. This is of course more likely to occur for several reasons. First, litigants where possible forum shop for the best law and procedure. And there is the possibility in some legal systems to have parallel litigation or negative declarations, allowing a party who might normally be a defendant to become a plaintiff in a more favorable forum.^[207] Second, courts may be more likely to favor their own litigants because to do so may allow them to use their own law with which they are more familiar. Indeed, there have been limited studies that have shown what foreign law sources courts refer to, reinforcing the homeward bound tendency.
80. In legal systems without codified choice of law rules, courts may exhibit forum bias in the application of law. Two well-known examples in choice of law theory used by some US state courts^[208] clearly result in forum bias and litigants selecting the forum are usually the plaintiffs since there are no codified rules of adjudicative jurisdiction. Leflar’s ‘better law’ theory, used in five states,^[209] inherently tends to apply forum law as does the ‘lex fori’ theory, used in two states.^[210]  Another example of where there may be a bias for forum nationals is in systems where public policy can be employed as a sword as opposed to a shield from foreign law. Finally, some legal systems require application of forum law and prohibit the application of foreign law.^[211] In that case, the party who initiated the suit is likely to have selected the most favorable forum if possible. Forum shopping will continue as long as there is no harmonization of both jurisdictional rules and choice of law. Convergence in some procedural aspects and some substantive law could serve to reign in forum bias and parties shopping for favourable law.

Abbreviations and Acronyms

ACCP	Code of Civil Procedure (Argentina)
ACHPR	African Court on Human and Peoples’ Rights
ADR	Alternative Dispute Resolution
ALI	American Law Institute
ANCCPC	Argentine National Civil and Commercial Procedural Code (Argentina)
Art	Article/Articles
ATCCP	Code of Civil Procedure (Austria)
BGH	Bundesgerichtshof (Federal Court of Justice) [Germany]
BID	Banco Interamericano de Desarrollo (Inter-American Development Bank)
CEPEJ	Conseil de l'Europe Commission européenne pour l’efficacité de la justice (Council of Europe European Commission for the efficiency of justice)
cf	confer (compare)
ch	chapter
CJEU	Court of Justice of the European Union
EBRD	European Bank for Reconstruction and Development
ECLI	European Case Law Identifier
ECtHR	European Court of Human Rights
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
ELI	European Law Institute
etc	et cetera
EU	European Union
EUR	Euro
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GCCP	Code of Civil Procedure (Germany)
GDPR	General Data Protection Regulation (EU)
ibid	ibidem (in the same place)
ICPR	Civil Procedure Regulations (Israel)
ICT	Information and Communication Technologies
ie	id est (that is)
IIDP	Instituto Iberoamericano de Derecho Procesal (Iberoamerican Institute of Procedural Law)
JCCP	Code of Civil Procedure (Japan)
n	footnote (internal, ie, within the same chapter)
no	number/numbers
para	paragraph/paragraphs
PD	Practice Direction
PDPACP	Pre-Action Conduct and Protocols
pt	part
RSC Order	Rules of the Supreme Court (UK)
SCC	Supreme Court Canada
Sec	Section/Sections
supp	supplement/supplements
TCCP	Code of Civil Procedure (Turkey)
trans/tr	translated, translation/translator
UK	United Kingdom
UKCPR	Civil Procedure Rules (UK)
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
UP	University Press
US / USA	United States of America
USD	United States Dollar
USFRCP	Federal Rules of Civil Procedure (US)
v	versus
vol	volume/volumes

---

Legislation

International/Supranational

Additional Protocol to the Inter-American Convention on the Taking of Evidence Abroad, 24 May 1984 (OAS).

Agreement on a Unified Patent Court (UPCA), OJ EU C 2013/1, of 19 February 2013 (EU).

Convention on judicial cooperation in civil, commercial and administrative matters between the Kingdom of Spain and the Kingdom of Morocco 1997 (Spain – Morocco).

Council on General Affairs and Policy of the Conference, Conclusions & Recommendations, of 24-26 March 2015 (HCCH).

Council on General Affairs and Policy, Working Group on Jurisdiction: Report 2024, of 2 February 2024 (HCCH).

Council Regulation on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, 1206/2001 of 28 May 2001 (EC).

Direct Judicial Communications - Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, including commonly accepted safeguards for Direct Judicial Communications in specific cases, within the context of the International Hague Network of Judges of 2013 (HCCH).

European Convention on Information on Foreign Law (ETS No 62) and its Additional Protocol (ETS No 97) 2023 (CoE).

Explanatory Memorandum of the EU Commission of 2 December 2020 regarding the proposed Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system), and amending Regulation (EU) 2018/1726, COM (2020).

Hague Convention Concerning the International Administration of the Estates of Deceased Persons of 2 October 1973 (HCCH).

Hague Convention on Civil Procedure, of 1 March 1954 (HCCH).

Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, of 19 October 1996 (HCCH).

Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption of 29 May 1993 (HCCH).

Hague Convention on the Civil Aspects of International Child Abduction, 670 of 25 October 1980 (HCCH).

Hague Convention on the International Protection of Adult, of 13 January 2000 (HCCH).

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, of 15 November 1965 (HCCH).

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970 (HCCH).

Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Table Reflecting the Applicability of Articles 15, 16, 17, 18 and 23 of the HCCH 1970 Evidence Convention of 18 March 1970 (HCCH).

Hague Guide to Good Practice: The Use of Video-Link, 1970 Evidence Convention, <https://www.hcch.net/en/publications-and-studies/details4/?pid=7072&dtid=3>. (HCCH)

Hague Principles on Choice of Law in International Commercial Contracts 2015 (HCCH).

IBA Rules on the Taking of Evidence in International Arbitration of 17 December 2020 (IBA Council Resolution).

Inter-American Convention on Proof of Information on Foreign Law, 8 May 1979 (OAS).

Inter-American Convention on the Taking of Evidence Abroad 13 January 1975 (OAS).

International Sale of Goods Convention 1980 (CISG) (UN).

Judicial cooperation treaty on civil and commercial matters and the recognition and enforcement of judicial decisions of June 28, 1972 (France – Tunisia).

Judicial cooperation treaty on justice matters between the French Republic government and the government of the United-Republic of Cameroon 1974 (France – Cameroon).

Model European Rules of Civil Procedure 2021 (ELI / UNIDROIT).

Principles of Transnational Civil Procedure 2004 (ALI / UNIDROIT).

Regulation of the European Parliament and of the Council on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), 2022/850 of 30 May 2022 (EU).

Regulation of the European Parliament and of the Council on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast), 2020/1783 of 25 November 2020 (EU).

Regulation of the European Parliament and of the Council on the Law Applicable to Contractual Obligations (Rome I), 593/2008 of 17 June 2008 (EU).

Regulation of the European Parliament and of the Council on the Law Applicable to Non-Contractual Obligations (Rome II), 864/2007 of 11 July 2007 (EU).

Regulation on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation, 2023/2844 of 13 December 2023 (EU).

ILA 73rd Biennial Conference Rio de Janeiro: Ascertaining the Contents of the Applicable Law in International Commercial Arbitration 2008 (International Law Association).

Rules of Transnational Civil Procedure 2006 (ALI / UNIDROIT).

Summary of the Responses to the Questionnaire of August 2008 Relating to the Apostille Convention, with Analytical Comments January 2009 (HCCH).

The Tenth Meeting of the Special Commission on the Practical Operation of the 1980 and 1996 Hague Conventions, of June 1–10 June 2011 (HCCH).

National

28 USC § 1781 (1964) (US).

28 USC § 1782 (1996) (US).

Civil Code of Quebec 1991 (Canada).

Supreme Court of Judicature Act 2014 (Rules of Court) (Singapore).

Uniform Certification of Questions of Law [Act] [Rule] (1995) (Uniform Law Commission) (US).

Uniform Civil Procedure Rules 2010 (Amendment No. 34) (Australia).

Uniform Law Commission Legislative Fact Sheet—Certification of Questions of Law (1995) (US).

Zivilprozessordnung 2022 (Code of Civil Procedure) (Germany).

Cases

International/Supranational

Loewen Group, Inc and Raymond L Loewen v United States of America, ICSID case No ARB (AF) 98/3.

Karalyos and Huber v Hungary and Greece, Case 7511/01 (ECtHR), Judgment of 6 April 2004.

Prorail BV v Xpedys NV, Case C-332/11 (CJEU), Judgment 21 February 2013 [EU:C:2013:87].

National

Allstate Insurance Co v Hague (Supreme Court, US), Judgment 31 January 1981 [1981 SCUS].

Animal Science Products, Inc v Hebei Welcome Pharmaceutical Co (Supreme Court, US), Judgment 14 June 2018 [2018 SCUS].

Armiliato v Zaric-Armiliato (District Court, US), Judgment 3 May 2001 [2001 SDNY].

Bodum USA Inc v La Cafetiere, Inc, (7th Cir, US), Judgment 2 September 2010 [2010 7th Cir] (J Wood, concurring).

CA Paris (Court of Appeal, Paris), Judgment 7 February 2002 (RG No 2001/21768).

Case 2001/21768 (Paris Court of Appeal, France) Judgment 2 February 2002.

Cleary v Philip Morris Inc (Seventh Circuit Court, US), Judgment 25 August 2011 [2011 7th Cir].

Daimler AG v Bauman (Supreme Court, US), Judgment 14 January 2014 [2014 SCUS].

Goodyear Dunlop Tires Operations, SA v Brown (Supreme Court, US), Judgment 27 June 2011 [2011 SCUS].

Intel Corporation v Advanced Micro Devices, Inc (Supreme Court, US), Judgment 21 June 2004 [2004 SCUS].

Intel Corporation v Advanced Micro Devices, Inc (Supreme Court, United States), Judgment 21 June 2004 [2004 SCUS].

Keeton v Hustler Magazine (First Circuit Court, US), Judgment 11 January 1987 [1987 1st Cir.].

MBR v YR (District Court in Tel Aviv-Yaffo, Israel), Judgment 17 April 2020, FC 10701-04-20.

Smith Kline & French Laboratories Ltd v Bloch, (Court of Appeal, England and Wales), [1982] EWCA Civ J0513-1.

Societe Nationale Industrielle Aerospatiale v United States District Court, (Supreme Court, US), Judgment 15 June 1987 [1987 SCUS].

ZF Automotive Group v Luxshare, Ltd, (Supreme Court, US), Judgment 13 June 2022 [SCUS 2022].

---

Bibliography

Albornoz M and Paredes S, ‘No turning back: information and communication technologies in international cooperation between authorities. Journal of Private International Law’ (2021) 17(2), Journal of Private International Law 224.

Alsaden S, ‘Proof of Foreign Law: A Guide for Judges’ (2022) Federal Judicial Center.

Baylson M and Gensler S, ‘Should the Federal Rules of Civil Procedure Be Amended to Address Cross-Border Discovery?’ (2023) 107 Judicature 19.

HCCH, ‘Evidence Section’ Bibliography  https://www.hcch.net/en/instruments/conventions/publications1/?dtid=1&cid=82.

Born G and Rutledge P, International Civil Litigation in United States Courts (7th edn, Aspen Casebook Series 2022).

Bowker D and Stewart D, Ristau's International Judicial Assistance: A Practitioner's Guide to International Civil and Commercial Litigation (2nd edn, Oxford University Press 2021).

Cadiet L et al, Privatising Dispute Resolution (1st edn, Nomos, 2019).

Collins L, ‘The Use and Abuse of 28 USC § 1782 Litigation in England’ (2023) 56 New York University Journal of International Law & Politics 151.

Collins S, ‘The Death Knell and the Wild West: Two Dangers of Domestic Discovery in Foreign Adjudications’ (2023) 122 Michigan Law Review 127.

Court Presentation, A single patent court for Member States of the EU, Unified Patent Court, https://www.unified-patent-court.org/en/court/presentation.

Critchley A, ‘The Application of Foreign Law in the British and German Courts’ (1st edn, Hart Publishing 2022).

‘Case Law on UNCITRAL Texts (CLOUT)’ United Nations Commission on International Trade Law https://uncitral.un.org/en/case_law.

‘Enhancing Access to Foreign Law and Case Law - Presentation of Solutions by the EU’, Preliminary Document No 14 of April 2014 for the attention of the Council of April 2014 on General Affairs and Policy of the Conference (April 2014), https://assets.hcch.net/docs/1469a7ab-5b31-4d86-a912-48758211fec3.pdf.

Esplugues Mota C, ‘Application of Foreign Law - Harmonization of Private International Law in Europe and Application of Foreign Law: The ‘Madrid Principles’ of 2010’ (2011) 13 Yearbook of Private International Law 273.

‘EU Justice Scoreboard’ European Commission https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboard_en.

‘Feasibility Study on the Treatment of Foreign Law – Report on the meeting of 23-24 February 2007,’ prepared by the Permanent Bureau, Prel. Doc No 21 A of March 2007 for the attention of the Council of April 2007 on General Affairs and Policy of the Conference.

Friedman P and Wilson C, ‘Representing Foreign Clients in Civil Discovery and Grand Jury Proceedings’ (1986) 26 Virginia Journal of International Law 327.

Gardner M, ‘Parochial Procedure’ (2017) 69 Stanford Law Review 941.

Girsberger D et al, ‘General Comparative Report: Global Perspectives on the Hague Principles’ in D Girsberger, T Kadner Graziano and J Neels (ed), Choice of Law in International Commercial Contracts: Global Perspectives on the Hague (Oxford University Press 2021).

Goldstein S, ‘The Proposed ALI/UNIDROIT Principles and Rules of Civil Procedure: The Utility of Such a Harmonization Project’ (2001) 4 Uniform Law Review 789.

Grosswald Curran V, ‘US Discovery in a Transnational and Digital Age and the Increasing Need for Comparative Analysis’ (2017) 8 Akron Law Review 857.

HCCH, ‘Child Abduction Section’ https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction.

HCCH, INCADAT https://www.incadat.com/en.

Helenius D, ‘Nordic and European Judicial Cooperation in Criminal Matters’ in L Ervo, P Letto-Vanamo and A Nylund (ed), Rethinking Nordic Courts, Ius Gentium: Comparative Perspectives on Law and Justice (Springer 2021).

Hendrix G, ‘The Hague Evidence Convention: How is it Really Working?’ 2 CILE Studies 275.

Hess B, ‘Report on the Application of Regulation Brussels I in the Member States’ (2005) Ruprecht-Karls-Universität Heidelberg 5.

-- --, ‘Europäisches Zivilprozessrecht‘ (2nd edn, IUS Communitatis 2021).

-- --, ‘Digital Judicial Cooperation in the Area of Freedom, Security and Justice: The judicial cooperation in civil matters,’ 3 April 2023 (unpublished manuscript).

-- --, ‘Digitalization of Civil Procedure and AI: the European Perspective’ 26 January 2024 (unpublished article).

ICANN, https://www.icann.org/.

Jansen R, ‘Explaining the methods for taking evidence abroad within the EU and some first observations on the proposal for the Evidence Regulation (recast)’ (2019) 4 Nederlands International Privaatrecht 753.

Jansen R, Legal Privilege and Transnational Evidence-Taking (1st edn, Intersentia 2022).

‘Judicial Cooperation in civil and commercial matters,’ European Judicial Network, https://e-justice.europa.eu/content_european_judicial_network_in_civil_and_comm‌ercial_matters-21-en.do.

Kaufman-Kohler G, ‘Globalization of Arbitral Procedure’ (2021) 36 Vanderbilt Law Review 1313.

Lalani S, ‘Establishing the Context of Foreign Law: A Comparative Study’ (2013) 20(1) Maastricht Journal European & Comparative Law 75.

‘Legal Documents,’ Unified Patent Court: A single patent court for Member States of the EU, https://www.unified-patent-court.org/en/court/legal-documents/69.

Marcus R, ‘Reflections from an Outlier: An American Reaction to The EU Rules on Evidence’ (2011) 11 International Journal of Procedural Law 106.

McClean D, International Co-Operation in Civil and Criminal Matters (3rd edn, Oxford University Press 2012).

Memorandum of Understanding Between the Chief Justice of New South Wales and the Chief Judge of the State of New York on References of Questions of Law (20 December 2010) http://www.supremecourt.lawlink.nsw.gov.au/supremecourt/sco2_internationaljudicialcooperation/ SCO2_agreement_newyork.html.

Neuhaus J, 'The Guide to Evidence in International Arbitration - The 2020 IBA Rules on the Taking of Evidence in International Arbitration: A History and Discussion of the 2020 Revisions’ (2024) Global Arbitration Review 6.

Nishitani Y, Treatment of Foreign Law- Dynamics towards Convergence? (Ius Comparatum - Global Studies in Comparative Law) (Springer 2017).

Nordic Cooperation, Ministry of Justice Finland https://oikeusministerio.fi/en/nordic-cooperation.

Ortega Gimenez A, ‘The Allegation and Proof of Foreign Law in Spain after the New International Legal Cooperation Act’ (2018) 4 Italian Law Journal 367.

Pertegás M, ‘The Provenance of the Hague Principles’ in D Girsberger, T Kadner Graziano and J Neels (ed), Choice of Law in International Commercial Contracts: Global Perspectives on the Hague (Oxford University Press 2021).

Requejo Isidro M, ‘Application of Foreign Law’ in P Beaumont and J Holliday (ed), A Guide to Global Private International Law (1st edn, Hart Publishing 2022).

Richard V and Hess B, ‘The 1965 Service and 1970 Evidence Conventions as crucial bridges between legal traditions?’ in T John, R Gulati and B Koehler (ed), The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar Publishing 2020) 286.

Ristau B, ‘International Judicial Assistance (Civil and Commercial)’ (1990) 1 International Law Institute 279.

Rodger B and Van Doorn J, ‘Proof of Foreign Law: The Impact of the London Convention’ (1997) 46 International & Comparative Law Quarterly 151.

Rubinstein D, ‘Judicial Assistance as Intended: reconciling Sec. 1782’s Present Practice with its Past’ (2023) 123 Columbia Law Review 513.

Silberman L, ‘The Continuing Relevance of Private International Law and Its Challenges: Judicial Jurisdiction and Forum Access—The Search for Predictable Rules’ (2019) 19 Elgar.

Silkenat J, ‘Inter-American Convention on the Taking of Evidence Abroad’ (1990) 24 International Law 880.

Silvestri E, ‘The ELI/UNIDROIT Project: A General Introduction’ in F Gascón Inchausti and B Hess (ed), The Future of the European Law of Civil Procedure (1st edn, Intersentia 2020).

Special Commission Meetings, Hague Conference on Private International Law Conférence de La Haye de droit international privé, https://www.hcch.net/en/home.

Spiegelman J, ‘Proof of Foreign Law by Reference to the Foreign Court’ (2011) 127 Law Quarterly Review 208.

Stürner M and Krauss F, ‘Ausländisches Recht in deutschen Zivilverfahren. Eine rechtstatsächliche Untersuchung, Internationales und europäisches Privat – und Verfahrensrecht’ (2018) 22 Nomos 45.

-- --, ‘The ELI/UNIDROIT European Rules of Civil Procedure: Access to Information and Evidence’ in F Gascón Inchausti and B Hess (ed), The Future of the European Law of Civil Procedure (Cambridge: Intersentia 2020).

Swiss Institute of Comparative Law, ‘The Application of Foreign Law in Civil Matters in the EU Member States and its Perspectives for the Future’ (JLS/2009/JCIV/PR/0005/E4) (2011).

Symeonides S, ‘The Story of Party Autonomy’ in D Girsberger, T Kadner Graziano and J Neels (ed), Choice of Law in International Commercial Contracts: Global Perspectives on the Hague (Oxford University Press 2021).

-- -- and Purdue W, Conflict of Laws: American, Comparative, International Cases and Materials (5th edn, West Academic Publishing 2024).

Teitz L E, Transnational Litigation (1st edn, Charlottesville, Virginia: Michie, 1996 & Lexis Law Publishing Supp 1999).

-- --, ‘From the Courthouse in Tobago to the Internet: The Increasing Need to Prove Foreign Law in US Courts’ (2003) 34 Journal Maritime Law & Commerce 97.

-- --, ‘Both Sides of the Coin: A Decade of Parallel Proceedings and Enforcement of Foreign Judgments in Transnational Litigation’ (2004) 10 Roger Williams University Law Review 1.

-- --, ‘Determining and Applying Foreign Law: The Increasing Need for Cross-Border Cooperation’ (2013) 45 New York University Journal International Law & Politics 1081.

-- --, ‘The Challenge of Accommodating Foreign Law in Domestic Courts’ in The Continuing Relevance of Private International Law and its Challenges (Elgar 2019).

-- --, ‘Is the Service Convention Ready for Early Retirement at Age Fifty-Five? Or Can It Be “Serviceable” in a World Without Borders?’ Hague Conference on Private International Law (HCCH) (a|Bridged edn, HCCH 2020).

‘The European Judicial Network in civil and commercial matters’ European Justice, https://e-justice.europa.eu/content_european_judicial_network_in_civil_and_comm‌ercial_matters-21-en.do.

The International Hague Network of Judges’ https://www.hcch.net/en/instruments/conventions/specialised-sections/child-abduction/ihnj.

‘URDP Model Complaint and Filing Guidelines’ WIPO, https://www.wipo.int/amc/en/domains/complainant/index.html.

Unified Patent Court: A single patent court for Member States of the EU, https://www.unified-patent-court.org/en/news/case-load-court-start-operation-june-2023-update-end-june-2024.

Vallines García E, ‘Harmonising Access to Information and Evidence: The Directives on Intellectual Property and Competition Damages’ in F Gascón Inchausti and B Hess (ed), The Future of the European Law of Civil Procedure (Intersentia 2020).

Verhellen J, ‘Access to Foreign Law in Practice: Easier Said Than Done’ (2016) 12 Journal Private International Law 281.

‘Welcome to the European e-Justice Portal!’ e-uropean Justice, https://e-justice.europa‌.eu/home?action=home accessed 2 July 2024.

‘WIPO Guide to the Uniform Domain Name Dispute Resolution Policy (UDRP)’ WIPO, https://www.wipo.int/amc/en/domains/guide/.

---