The President’s Letter

In my Fall 2002 Letter, I noted that Justice Sandra Day O’Connor had addressed us at our Annual Meeting that year on a very timely subject, "the internationalization of American law." At that Meeting, she remarked that "[i]t is gratifying and encouraging to see the variety of projects that the ALI is pursuing in the area of international and transnational law," and she declared that "understanding international law is no longer just a legal specialty" but "a duty we all share." As Lance Liebman said in his 2004 Director’s Report, "we should continue our transnational work, which can take the form of Statements, Restatements, or Principles but probably belongs in a category of its own." He noted the influence our NAFTA bankruptcy work has had, the great interest and attention the Transnational Civil Procedure project has sparked, our World Trade project’s analysis of WTO decisions and the project’s forthcoming Principles of the rules for global commerce, and the projects "to improve the American law concerning recognition and enforcement of foreign judgments" and to propose "a regime for international coordination of intellectual-property disputes." He concluded that, although international work "is challenging and expensive, . . . if we choose our targets and our Reporters well, we can make a major contribution to the evolving international legal system." As additional evidence of the ALI’s increasing global scope, many of the Institute’s members, Reporters, Advisers, and Consultants hail from foreign countries, and the ALI Council recently elected Jane Stapleton, from Canberra, Australia, as the first foreign national to join its ranks. Moreover, this year’s Annual Meeting luncheon on Wednesday, May 18, will feature an address by Anne-Marie Slaughter, Dean of the Woodrow Wilson School of Public and International Affairs at Princeton University, a highly regarded expert in both international law and international relations.

In light of the increased importance the Institute has placed on pursuing projects having an international focus, and with appreciation to Director Emeritus Geoffrey Hazard for initiating our projects on transnational insolvency and transnational civil procedure, it is fitting to note that last year the ALI, in association with the International Insolvency Institute (III), published translations of the Guidelines Applicable to Court-to-Court Communications in Cross-Border Cases (the Guidelines) in nine languages: Chinese, French, German, Japanese, Korean, Portuguese, Russian, Spanish, and Swedish, and additional translations are anticipated. There is also a pamphlet of the Guidelines in English, as well as English/French and French/English versions. The Guidelines were previously adopted by the ALI in May of 2000, as part of its Transnational Insolvency Project, and by the III in June of 2001. Having been widely translated and distributed by the III to judges and lawyers throughout the world, and independently approved by both the III and the Insolvency Institute of Canada, the Guidelines have already played a vital and influential role in litigation and been cited by courts. As indicated by Director Liebman in his Foreword to the Guidelines, although they were first developed to improve cooperation among bankruptcy courts within the NAFTA countries, "their acceptance by the III, whose members include leaders of the insolvency bar from more than 40 countries, suggests a pertinence and applicability that extends far beyond the ambit of NAFTA." They should prove useful, he said, not only in insolvency cases, but "whenever sensible and coherent standards for cooperation among courts involved in overlapping litigation are called for. See, e.g., International Jurisdiction and Judgments Project [now known as Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute] § 12(e) (Tentative Draft No. 2, 2004)." Any ALI member interested in a copy of any of these pamphlets is welcome to request it from Nancy Shearer of ALI’s Publications Department (phone: 215-243-1626; e-mail: nshearer@ali.org; fax: 215-243-1636).

On November 10, 2004, the Supreme Court of British Columbia reviewed and adopted the Guidelines for use in that Province. The principal seat of the Supreme Court is in Vancouver, one of Canada’s leading commercial and judicial centers.

According to Supreme Court Chief Justice Donald I. Brenner, an III member, the Guidelines are intended to enhance coordination and harmonization of insolvency proceedings involving more than one jurisdiction by providing direction for communications between the courts in the jurisdictions involved. He said that, in adopting the Guidelines, the Supreme Court followed the III’s recommendation that "insolvency professionals and courts adopt the Guidelines to facilitate court-to-court communication in cross-border matters." He emphasized that the Guidelines "require that all the rules and procedures governing proceedings in British Columbia be complied with," and noted that they do not "alter or affect the substantive rights of the parties or give any advantage to any party over any other party."

The Guidelines are posted on the website of the Supreme Court of British Columbia at www.courts.gov.bc.ca; they are posted in several languages on the III website at www.iiiglobal.org. They also appear as Appendix B in a volume comprising Principles of Cooperation Among the NAFTA Countries (Principles of Cooperation), part of the four-volume set of ALI’s Transnational Insolvency: Cooperation Among the NAFTA Countries, published by Juris Publishing, Inc., in 2003. (The four volumes may be ordered individually, or as a set, on the ALI website (www.ali.org) or by contacting ALI’s Customer Service Department at 1-800-253-6397.)

According to III Chairman Bruce Leonard, who was the Canadian Co-Reporter for the Transnational Insolvency Project, the III is also pursuing adoption of the Guidelines in the Provinces of Quebec and Ontario. He indicated that the Guidelines have already been adopted by the Commercial Division of the Ontario Superior Court of Justice in Toronto, the court responsible for dealing with bankruptcy cases in Ontario. He noted that this court is "where most of Canada’s major reorganizations are filed" and that Mr. Justice J. M. Farley, the Chief Judge of the Commercial Division, who is an ALI member and was a Canadian Liaison to the Transnational Insolvency Project, is a strong proponent of the Guidelines.

In his Foreword to the pamphlet of the Guidelines, Mr. Leonard noted that, "[s]ince their approval by the III, the Guidelines have been applied in several cross-border cases with considerable success in achieving the coordination that is so necessary to preserve values for all of the creditors that are involved in international cases." Noting that the Guidelines should be adopted "at the earliest possible stage of a cross-border case," he concluded that their use in international cases "will change international insolvencies and reorganizations for the better forever, and the insolvency community owes a considerable debt to The American Law Institute for the inspiration and vision that has made this possible."

Lance Liebman has begun exploring with Bruce Leonard whether the ALI and the III should take further steps to adapt the Principles of Cooperation, which were approved in our project for insolvencies involving the NAFTA countries, to have more universal appeal and utility in the non-NAFTA world. At this writing, Cambridge University Press is preparing to publish the ALI/UNIDROIT Principles of Transnational Civil Procedure, a work we hope will have similar international significance. As we contribute to cooperative and transnational approaches to insolvency, civil procedure, world trade, judgments, and intellectual property, it seems clear that the ALI will have more opportunities to help foster internationally harmonious approaches to other difficult legal issues.

Michael Traynor
President