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86 Tul. L. Rev. 623 (2011-2012)

handle is hein.journals/tulr86 and id is 629 raw text is: Rethinking the Harmonization of Jurisdictional Rules Simona Grossi* To Professor Herma Hill Kay a wonderful scholar, teacher, and friend In the aftenmath of the various unsuccessful attempts by the Hague Conference to devise an international convention on junsdiction and frcognition and enforcement ofjudgments, tis iwok examnes what the common law and civil law delegations to the Conference considered invconcdable diffemnces between their mspective junsdictional laws. This Article studies the historical and functional evolution of these allegedly iraconcilable juisdctional categodies, examnes their underlyig ideas (for example, 'mnnum contacts and due process analysis, forum non conveniens, and tag jusdction), and suggests a new method of analysis, which generates a unified approach to juisdictional law and choice oflawrules. The analysis unearths the onginal symmetnes between junsdictional law and choice of law rules in common law and civil law systems that existed i the pas4 as well as the vanous similanres still existing today despite the diffemrnt labels sometimes used and it exposes some preconceptions that make some of these categones and principles falsely appear to be buconcilable. I fac4 by solving some rpresentative problem situations under both of the allegedly ferent regimes, thisArticle shows that the solutions these systems offer ar, most of the time, similar This is because their is a strong interaction betweenjunsdictional law and choice of law rules within each in&vidual system and across legal systems, and because the existing diffrences ar not irreconcilable but merly the product ofrcent developments. Ths Article posits that conflict of laws rules governing civil and commercial matters should be harmonized and that such harmonization is feasible and woth pursuing Therfor, rather than once more suggesting to adopt an international convention only on juisdiction and recognition and enforcement ofjudgments, this work suggests the adoption of an iternational convention on conflict of laws rules. The proposed convention could adopt simnlar critera or connecing factors to identfy the judge with juisdiction over a controversy and the law to govern it. This wil eventually make the judgmentrendered at the end ofthe proceeding suitable forrcognition and enforcement in the countries that atif' the convention. Such a convention would only apply to higation on cil and commerial matters. The identification of the judge and of the governing law would significantly enhance the efficiency and fainess of these types oflitgation. * © 2012 Simona Grossi. Associate Professor of Law, Loyola Law School L.A., J.S.D., U.C. Berkeley School of Law, LL.M., U.C. Berkeley School of Law, J.D., L.U.I.S.S. Guido Carli, Rome, Italy. I wish to thank Professor Allan Ides, il mio Meaestro, for his invaluable comments and help on this project and many others. His teachings and ideas have been incredibly inspirational for me. I would also like to thank Professor David Oppenheimer, Professor William Fletcher, and Professor Patrick Hanlon for their unique ideas, comments, and help on this work. Additional thanks go to my wonderful research assistants David Rosenberg, Sirarpi Mnatsakanyan, Koko Umoren, Cathy McCarthy, Kristin Smith, Geraldine Auberson, and Elan Osterman for their research and support. This Article will be included in my forthcoming book titled HARMONIZING COMMON LAW AND CIVIL LAW: STANDARDS OF DECISION IN COMPARATIVE PERSPECTIVE (Cambridge Univ. Press 2014). 623

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