Preface

Presented herewith is Discussion Draft No. 2 of Principles and Rules of Transnational Civil Procedure. The project has been circulated to consultants from many countries, as well as to the Advisers, Members Consultative Group, and, more recently, to the ALI/UNIDROIT Working Group.

There are, understandably, skeptics who think the idea premature at best that there can be “universal” procedural rules, and others who, though sympathetic to the idea, have serious reservations about the present execution of the concept. These reservations are at two levels. First, there is doubt that it is feasible to overcome fundamental differences between common-law and civil-law systems and, among common-law systems, to cope with the peculiarities of the United States system. We think, however, that the reservations based on the civil-law/common-law distinction are unduly fearful. The United States system is unique among common-law systems in having broad discovery and jury trial and the more so in having the combination of these two procedures. Thus, a second-level reservation is that, if such a project is feasible, it is not feasible if it is based on characteristic United States procedure.

Our discussions have led us to accept the latter kind of reservation with important qualifications. We conclude that a system of procedure acceptable generally throughout the world could not include jury trial and would require much more limited discovery than is typical in the United States. This in turn leads us to conclude that the scope of the proposed Transnational Civil Rules should exclude personal-injury and wrongful-death actions, because barring jury trial in such cases would be unacceptable in the United States. Hence, the scope is now conceived in terms of “commercial disputes.” Obviously this definition will require some further specification, but we believe that it is adequate to frame the project for the present.

The worldwide reception given to the project generally has been very positive, but there has been strong dissent. Part of the dissent evidently reflects some irritation at “American cultural imperialism.” We hope that this work product of the Reporters reflects the fact that one of the ALI Reporters, Professor Taruffo, and one of the UNIDROIT Reporters, Professor Stürner, are civil-law scholars and lawyers, and that the Associate Reporter, Professor Gidi, is a civil-law scholar. We all endeavored to overcome the parochialism of our backgrounds.

Geoffrey C. Hazard, Jr.

Michele Taruffo

Rolf Stürner

March 20, 2001