Achieving the Harmonization of Transnational Civil Procedure: Will the ALI/UNIDROIT Project Succeed? – Vol. 15 No. 2

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Author: Stephen McAuley*

Published: December 2005

Commercial Disputes
Dispute Resolution and Litigation
Practice and Procedure
Unification of Arbitration Law

Description: In an increasingly borderless and multijurisdictional international business environment, parties seek certainty and predictability in the resolution of cross-border commercial disputes. The legal risk associated with doing business on a multinational level must be kept to a minimum. When disputes do arise and self-help remedies are non-viable, parties want to rely on an efficient and effective dispute resolution system. Unfortunately, the divergent nature of procedural law in the different judicial systems throughout the world means businesses face extra costs and greater uncertainty when engaging in domestic litigation in a foreign jurisdiction. Such problems have created a focus on harmonizing transnational civil procedure. The American Law Institute (“ALI”) and the International Institute for the Unification of Private Law (“UNIDROIT”) have jointly developed the Principles and Rules of Transnational Civil Procedure (hereinafter also referred to as the “ALI/UNIDROIT Project”). The final draft of the ALI/UNIDROIT Project was approved by both ALI and the UNIDROIT Governing Council in 2004. It is thus timely to examine the likely success of the ALI/UNIDROIT Project in its attempts at achieving the monumental task of harmonizing transnational civil procedure.

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*B App Fin; LLB (Hons). Tipstaff to Justice C.R.R. Hoeben, Supreme Court of NSW. The author would like to thank Stephen Burke and Alex Low for critique and feedback on this paper.