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7 J. Priv. Int'l L. 1 (2011)

handle is hein.journals/jrlpil7 and id is 1 raw text is: Joiial of Private Ineiatioial La6

Vol. 7 No. 1

JURISDICTIONAL DISCOVERY IN TRANSNATIONAL
LITIGATION: EXTRATERRITORIAL EFFECTS OF
UNITED STATES FEDERAL PRACTICE
SI STRONG*
A. INTRODUCTION
Despite the increasing transnationalisation of litigation,' questions of procedure
typically remain highly provincial.' This phenomenon might be explained in
several different ways: a lack of political wvill to provide special procedural rules
for non-residents, a jurisprudential preference for considering international dis-
putes as largely analogous to domestic disputes,4 or a failure to understand how
extraordinary one's national practices are. The first two factors largely reflect
PhD (la), liversity of Carnbricdge; DPhil, University of OxIibr JD, Duke  n  jirsity; MPH
University of Southern California; BA, University of California, Davis. The author, who is
acdnitted as an atn torny in New York and Illinois and a solicitor in England and Wales, is Asso-
date Pr o f es  of Law at the University of Missouri and Senior fellow at the Center for the
Staly of Di pute Resolution. The author graci lly acknowledges gecrous finan cial support
frorn the Unixversity of Iissouri Law School Founcidaoio during the drafting of this article as
wel as hlplil conmntis niacL by ano inoui(s re(  1  u iring the s uimission proces. All
errors of course remain the aithor's ownX .
See PR Dubinsky, Is Transnational  lion a Dis inct Ficl? The Pr sis tce of Excepin-
alisn in American Procedural Law ' (2)  4 Stet a,  oa of Inte ronal Law 30 1, 3-0
SecS Dodson, Comra iitiv Convergences in Pleading Standards (201) 18 U nis  j
Pennslania Law Rew    1, 4      TO Main, The Procedural iounidation oi Substantix
Law (2010) 87 14shng o          fiL  Reiew 801, 837 (noting that states may be rnore
likely to consider abandoninig thir own substantive regimes of connem rcial law or intellectual
propery ... than thei    s u 1  , irrender their own procedurc). Rc ci effirts to establish al
internationally acceptable system of trainsiational civil procedure have not found widespread
success. See ALI/LNIDROIT, Princl o, Tranat ('vi Procdur (Canbidg1(e U  iverix
Press, 2006), xxix, xxxvil- XXxi  1 oting impact ofthe ALI/ UNIDROIT Principles in Mexico);
OG Chase el at (1ls), (il Lit 'i Comarive  nx St P   Iul  N, Thornson West, 2007),
574-75 (noting the -L1L/UNIDYROIT Prini  av     t    been adopted by anry national
courQ).
Eg some states may be concerned that departing fr ih status quo will harm individuals or
busilesses residCet i their territorics. S C GB Born, Criical Obseivations onl the Draf Tran-
snationial Rules of Civil Procedure (1998) 33 exas lterniational Law journal 387, 408, 410-11.
See Dubinsky, supra n 1, 306 (sggesting UTS courts look at international disputes as a v rian
on interstate litigation).
See KM Cler1on1 t and JRB Palmer, Exorbitant Jurisdiction (2006) 58 faiiie   Re e 474,
474-75 (ioting that lawyers tend to overlook their own countries' excesses and suggesting
(hat some state justi hifeir own national practices on he grounds that other states' procedural
Practices are equally cliscriminatory to non-residents).

1I

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