Vol. 8 No. 5 (May 1998) pp. 256-259.

FOREIGN COURTS: CIVIL LITIGATION IN FOREIGN LEGAL CULTURES
by Volkmar Gessner, editor. The Onati International Institute for Sociology of Law. Aldershot, UK: Dartmouth Publishing Company, 1996. 281 pp. Cloth $67.95. Paper $25.95. ISBN 1-85521-808-9.

Reviewed by Albert P. Melone, Department of Political Science, Southern Illinois University.


Too few political scientists pay sufficient attention to foreign courts and comparative approaches to the study of both public and private law topics. FOREIGN COURTS is an exercise in the sociology of law performed admirably by German and Italian lawyer-sociologists. Their work points the way to the type of transnational collaborative research that is needed if we are to describe and to explain the role of law and politics in the modern world.

The contributors focus their empirical projects on domestic civil courts in New York City, the German cities of Bremen and Hamburg, and the Italian city of Milan. First, the researchers painstakingly separate domestic from international cases in each locale. Then they sort and analyze the smaller number of latter cases for the subject matter of the litigation, the characteristics of the parties, and the extent to which domestic courts apply local and foreign law. Each research site is studied for approximately the same time period, between the late 1980s and early 1990s.

New York City is a central locus of international legal activities. Hanno Von Freyhold analyzed a random sample of 2200 court filings in New York's Supreme Court for the year 1986. Thirty-four cross-border cases of original jurisdiction were identified and analyzed. He also studied all international civil judgments decided in the year 1992 and reported in the LEXIS legal database. Further, as part of his study, Von Freyhold interviewed eleven lawyers with a view of comprehending the role of legal professionals in cross-border dispute settlements. Surprisingly, Von Freyhold found that although New York City is clearly a leader in international legal transactions the venue evidences less than satisfactory use of time and money for resolving cross-border disputes.

The presentation of the findings is somewhat complex. The author's description of some of his thirty tables is difficult to follow and requires careful attention. The task is made particularly ponderous because Von Freyhold sometimes orders his independent variables along the rows rather than the columns.

Gessner's chapter on international cases in German courts contains thirty-one tables that also require careful attention to the author's detailed analysis. Contrary to what we might expect, Gessner finds that the northern German export cities in this study process more than ten percent of the commercial lawsuits involving transborder litigants. He therefore concludes that the German courts play a significant role in international litigation. Suggesting international confidence in the German courts, it is revealing that of the 320 international cases in Bremen and Hamburg sixty-five percent were initiated by foreigners.

It comes as no surprise that nearly seventy percent of the business actors in the German transborder cases are mostly large business firms, and only thirty percent of the cases involve private individuals. Foreign private parties are just as likely to appear in the German courts as plaintiffs or defendants in litigation involving mostly contract claims. Family law, succession law, and tort law comprise considerably fewer case filings. The data also indicate parties rarely go to court to settle international disputes for small amounts of money. Parties apparently conceive international lawsuits as laborious and complicated undertakings worthwhile only in the most serious situations.

In common law countries legal service of court summons is primarily the responsibility of the parties. But in civil law countries, including Germany, service is primarily a state responsibility. Gessner found that in over ninety percent of the sample cases, international service was successful. Interestingly, in Germany the parties may select either a single judge to hear their case or a three-person panel composed of a professional judge and two lay persons who are usually businesspersons. In commercial law cases, international litigants favored the panel at a slightly greater rate than litigants in national civil cases; this is particular true for those cases involving large sums of money.

There is a significant downside to German cross-border litigation. Compared to national cases, international law suits require a greater number of hearings and substantially more time to complete. Yet, German courts seem as fair to foreigners as they are to their own nationals; in fact, foreign plaintiffs are more successful in the local courts than are German citizens. Typically, plaintiffs win their international cases in German courts more often than do defendants regardless of their nationality. This is probably true because plaintiffs tend to file only promising cases.

The empirical evidence supports the conclusion that German courts are reasonably fair places to adjudicate international claims. Yet, Gessner concludes his empirical chapter on a negative note. He claims that German jurists are parochial in their worldview. Despite the trend toward globalization, German legal professionals tend to marginalize international and comparative law reflecting, as he argues, a lack of empathy for international matters. Yet, the same might be said of lawyers in other countries. Like their German counterparts, few U.S. lawyers study international and comparative law issues. In short, I suspect Gessner is too hard on his countrymen. But the general proposition that legal professionals must begin to internalize international norms is well taken.

Milan is the final research site and like the New York and German studies the researcher, Vittorio Olgiati, purports to focus on both the legal and sociological determinates of cross-border litigation. Olgiati maintains that cross-border interactions are a high mixture of adversarial, inquisitorial, and cooperative patterns.

Similar to Bremen, Hamburg and New York, the Civil Court of Milan in 1988 handled about the same proportion of cross-border cases, somewhere above 2 percent of all civil cases. Also, as is the case for the German and New York samples, the case filings in the Milan court involve mostly private individuals and large companies. Yet, private individuals represent a remarkably high thirty-one percent of all the cross-border cases in Milan because many cases involve automobile accident claims where insurance companies act as intervenors. Unlike the other research sites, only about one-fifth of all cases initiated in 1988 were completed within one year--indicating the comparative length of Italian procedures. Moreover, cases with foreign plaintiffs tend to be closed by an official court action (51%) more often than cases with Italian plaintiffs (20%).

Olgiati seeks to use the data to answer important questions. He refers to "interpretive-reflexive" answers to the questions why certain actors apply to state courts, and who they might be. He surmises that procedural norms are used as technical tools and as temporal structures of communication. He also finds that courts play a mere notarial role, certifying solutions that have been made outside the four walls of the courtroom. Though one may interpret the data in this way, for Olgiati to come to such a conclusion he needs additional information beyond what his tabulations provide. This deficiency is remedied to some extent by the work of another contributor presented in a brief but revealing chapter.

Enzo L. Vial conducted interviews and discussions with lawyers, judges and social scientists in Padua, Venice, and Milan. He reports that Italian lawyers view formal legal proceedings as broad frameworks for informal ways of settling disputes, which Olgiati terms "litigotiation." Given this sociological context, Italian attorneys tend to be against legal reforms designed to provide for quicker and more efficient means of settling disputes. Further, foreign plaintiffs are at a disadvantage in Italian civil courts because they lack familiarity with the many informal negotiation techniques that require a lengthy duration before parties actually reach settlements.

In the concluding chapter, Von Freyhold, Gessner, and Olgiati evaluate their findings. They are decidedly pessimistic about the future of foreign courts in the development of global legal interactions. Although a substantial number of court cases are taken to resolve cross-border disputes, even more matters are taken to arbitration, mediation or other forms of resolution. New York seems to display the best venue for judicial resolution of cross-border disputes because of the willingness of legal professionals to apply foreign law and to employ foreign legal counsel by New York law firms. The situation is different in Germany and Italy. On the other hand, it is fair to note that the application of domestic law does not prevent foreign parties from being successful. Nonetheless, the authors argue that domestic courts do not typically provide the institutional security for long-distance and cross-cultural trade as well as some other types of global interactions. The authors discuss with approval the model of the European Court of Justice, but they dismiss it as an unrealistic solution for multicultural disputes.

The authors went to great lengths to achieve comparable samples in the three research sites. Yet, they do not directly compare, in a statistically sophisticated fashion, whether the differences in the values on the various dependent variables between and among the three different research sites represent statistically significant differences. Depending upon the mathematical assumptions, they might have tested for differences by employing simple chi-square tests, difference of means tests, or analysis of variance. Then, too, the authors may have tested for the effects of intervening factors by holding constant certain variables. In short, by performing additional statistical analyses the authors may discover other interesting relationships that may help them to refine their findings and to produce multivariate models. No doubt they possess the substantive knowledge that can guide their future mining of the data.

Lastly, it is unfortunate that the editor did not include an index. Because this study invites the reader to compare the data for each research site, a well-crafted subject index would have been a useful tool. Also, there is no bibliography. Yet, few ambitious undertakings such as this one are entirely satisfactory. This book is a fine example of what may be accomplished when international scholars cooperate.


Copyright 1998 by the author