LAWCOMM 749 - Special Topic: International Litigation

Lecturer Biography

Mary Keyes is a professor and Deputy Head of School (Research) at Griffith Law School, at Griffith University in Brisbane, Australia.  At Griffith, she teaches International Litigation, International Arbitration, and Contracts.  She has taught Conflict of Laws at the Australian National University.  She has a particular interest in mooting, and has been co-coach of the Griffith Vis International Commercial Arbitration Moot team since 2008. Since 2008, she has been Review Articles Editor of the Journal of Private International Law, the only specialist journal in the field in the English language.  She is co-author of Private International Law in Australia (3rd ed, LexisNexis, 2015, with Reid Mortensen and Richard Garnett).  She has published widely in the field of private international law. Her particular interests are in the areas of jurisdiction and the use of agreements in private international law.  She is a member of the Experts’ Group on Cross-border Recognition and Enforcement of Agreements in Family Matters Involving Children at the Hague Conference on Private International Law, and will give a Special Course at the Hague Academy of International Law in 2020.

Course Outline

This course critically assesses the regulation of cross-border commercial litigation. It covers the three main issues of private international law:  the jurisdiction of courts to hear and determine cross-border disputes; the recognition and enforcement of foreign judgments; and choice of law.  It will consider the regulation of these three issues from the perspective of common law systems, particularly New Zealand and Australia.  We will also look at comparative approaches to the regulation of cross-border litigation, particularly referring to developments in the European Union, which have in turn influenced recent changes to the law in national laws, including in some east Asian jurisdictions. 

Syllabus

The course will cover the following issues:

  • The competition for, and cooperation in, international litigation and arbitration;
  • The importance of strategy in international litigation;
  • Rules of jurisdictional competency, including subject-matter jurisdiction;
  • Rules relating to the discretionary exercise of jurisdiction, particularly the effect of jurisdiction clauses;
  • The contractibility of jurisdiction, including the effect of arbitration clauses;
  • Bilateral and multilateral agreements in the field of jurisdiction and judgments, including between New Zealand and Australia, Hague Conventions, and European Union instruments;
  • The effect of foreign judgments;
  • Cooperation within the Commonwealth of Nations in the area of judgment recognition;
  • The interaction between jurisdiction and judgments;
  • General issues in relation to choice of law, including choice of law theory, characterisation and renvoi;
  • Common law choice of law rules particularly in the areas of contract and tort;
  • The interaction between substantive forum legislation and choice of law rules in common law systems;
  • The contractibility of choice of law;
  • Multilateral agreements in the area of choice of law, including European Union instruments, and their effect on national laws, including in east Asia;
  • Multilateral cooperation in choice of law, particularly through the work of the Hague Conference on Private International Law;
  • The interaction between jurisdiction, choice of law, and the treatment of foreign judgments;
  • The role of public policy; and
  • Comparative approaches to the regulation of international litigation.  

This course is principally about the procedural issues that arise only in cross-border cases, and principally focuses on private, commercial law. It assumes knowledge of  domestic civil procedure. 

Objectives

The main objective of this course is for students to develop a critical understanding of the way in which international litigation is regulated.  This requires an understanding the principles of jurisdiction, judgments and choice of law, as well as an appreciation of how those principles are derived and develop, how they interact, and how they can be used by the parties strategically. It also requires an understanding of different approaches taken in the law of different legal systems, and legal systems from different traditions, to the regulation of cross-border disputes, and the practical implications of this for the resolution of individual disputes.

Learning Outcomes

On completion of this course students should be able to:

  • Appreciate the importance of venue to the resolution of an international dispute;
  • Critically comment upon the idea of international litigation as a product; 
  • Explain, and critically analyse, the common law rules relevant to jurisdictional competency; to the exercise of jurisdiction; to the effect that is given to foreign judgments; and to choice of law;
  • Describe the relationships between jurisdiction, the effect of judgments, and choice of
    law; and
  • Compare the common law regulation of private international law to the that of other legal systems.

Assessment

Research essay of 6500 words (80%), research plan of 800 words (10%), and class participation and presentation (10%).

Essay

Each student is required to submit a research essay of no more than 6500 words including an abstract/synopsis of 500 words. The essay is to be original work, relying on secondary and primary sources. It MUST be the work of the enrolled student. Another person, other than the enrolled student, MUST NOT write the essay nor do the research on behalf of the enrolled student. Plagiarism is not permitted and in that regard each student should read the University’s plagiarism policy and adhere to it. All students will be expected to sign a plagiarism declaration when submitting their essays. Students must also use proper legal citations and include a reading list at the end of their type-written essay. The essay should be comprised of properly crafted English sentences. (Note form is unacceptable.) The use of sub-headings is encouraged and footnotes rather than Harvard style in-text referencing are to be used.

Descriptive essays are not encouraged. Instead students are expected to engage with relevant legal issues by: critiquing the law; developing proposals for reform; examining the operation of law and policy in practice; and/or providing a conceptual analysis of the law, for example.

Essays must be submitted to the Faculty of Law, by 12 noon on 18th July 2019.

Extensions will not be granted lightly (only on sickness and compassionate grounds) and must be requested formally through the Postgraduate Manager.

Research plan

Each student is required to submit a research plan for your essay of no more than 800 words. The research plan must articulate the preliminary title of your research essay, the research question or questions, the significance and originality of the topic, and the method/s that will be used to investigate the question or questions (including identifying the primary and secondary legal materials that will be used). A preliminary bibliography must be attached (which does not count towards the word count).

Criteria and marking

  • Presentation:  Was the plan clearly expressed, using correct terminology, grammar, syntax and spelling, and did it conform to the word limit?
  • Focus of project:  Were the research questions clearly expressed? Is the scope and focus of the project appropriate, given the word length of the essay and the time available to complete it?
  • Significance:  Was the originality of the project clearly explained by reference to the literature, and was a persuasive case made about the importance of the project?
  • Research methods:  Are the proposed methods appropriate in terms of addressing the research questions, and feasible given the time and materials available?
  • Progress:  Does the plan show sufficient progress on the research, as demonstrated by the preliminary bibliography?

Research plans must be submitted by email to m.keyes@griffith.edu.au

Extensions will not be granted lightly (only on sickness and compassionate grounds) and must be requested formally through the Postgraduate Manager.

Class Participation / Presentation

Each student will be asked to prepare a brief (15 minute) answer to one of the focus questions in the Learning Guide and present this to the rest of the class. In addition, each student is expected to make individual contributions to seminar discussions throughout the course. Students will be individually assessed on the quality of their contributions.

Criteria & Marking

Students will be individually assessed on the quality of their contributions with reference to the following criteria:

  • the extent to which the student has identified the important and relevant issues;
  • the clarity of argument;
  • the depth and thoroughness of understanding of the seminar material;
  • the strength and clarity of the arguments presented;
  • the overall lucidity of the contribution;
  • the extent to which issues are placed in their wider context;
  • the extent to which the student has displayed a grasp of the doctrinal and normative issues;
  • the analysis and synthesis of material and;
  • the ability to draw worthwhile conclusions.

Class participation will assessed over the whole 5 days of the course. Quality rather than quantity will be assessed but clearly if a student is not present for all the classes, it will be impossible to achieve the maximum marks possible even if a student’s contributions are brilliant when he/she does speak. Students are reminded that the full range of marks is available to the lecturer in assessing class participation. Please be assured that the lecturer is very aware that mistakes are part of learning. Accordingly, ‘getting the law right’ is not the key focus of the class participation component of assessment. If students knew all the law from the outset, there would be little point in them enrolling in the course. Rather, class participation is included to extend students and to assess students’ imaginative understanding of, and engagement with, the materials under discussion. It is not meant to be threatening.

Reading Materials

Reading materials will be contained in the Casebook/Study Guide. Students may also be asked to access additional materials via the internet or in the library.

Teaching Method

The course will be taught over five days commencing on a Wednesday and concluding at the end of the following Tuesday. Classes will be interactive and hopefully, very friendly. It will be necessary for students to do the pre-reading for the course so that they get the most out of the materials under discussion.
Classes will commence at 9am and run till 5.00pm. Morning tea will be around 10.30am (approx. 20 minutes). We will also have a short break in the afternoon.

Evaluation of Mary Keyes’ similar course, International Litigation, Griffith University, Australia (semester 2, 2016)

This course scored at least 4.8 out of a possible 5 on all questions, including the question of students’ overall satisfaction with the course. Professor Keyes received a Deputy Vice Chancellor’s commendation for her teaching in this course in semester 2, 2016.

Course Details

Semester One
Study mode Intensive
Dates 6-8 May 2019
Time 9 - 5pm
Location Room 326, 1-11 Short St
Value 15 Points

Contact Details

Law Student Centre
Level 2, 1-11 Short St
postgradlaw@auckland.ac.nz

Lecturer contact details: m.keyes@griffith.edu.au