International Civil Litigation & the interests of the public

Historically, the issues arising in international civil litigation have largely been premised on the commercial nature of that litigation. The challenges of cross-border dealings and the disputes that arose from them were such that it was generally assumed that litigation would be pursued only by sophisticated commercial parties, and even then, only as and when it was warranted by the business interests of the parties.

Increasingly, though, international litigation is conducted for more than purely commercial reasons and by a wider range of participants. As individuals and small businesses enter into international markets they can become parties, as plaintiffs or defendants, to cross-border claims. The participation of individuals and small businesses in international litigation gives rise to the need to re-consider the principles relating to jurisdiction, judgments and applicable law that were fashioned for sophisticated commercial parties. Courts must take into account the varying abilities of parties to litigate in distant fora. Courts must concern themselves with issues of access to justice, both for plaintiffs and for defendants.

As public interest litigation expands, and as commercial litigation increasingly affects matters of public interest, the occasions on which cross-border litigation is of a public interest nature are also increasing. This gives rise to the need to re-consider a host of principles relating to the conduct of international litigation. This is particularly so where those principles were established to support the purely commercial nature of international litigation. Courts must take into account the right of the public to participate in the proceedings. Courts must take into account the changing nature of the rights to be vindicated as it affects the standing of persons to bring claims on behalf of themselves, and on behalf of affected groups. Courts must also consider the varying recognition given in different legal systems to the rights sought to be vindicated.

The topics to be addressed by this Committee could include, among others: standing, intervention, denial of justice (both for plaintiffs and defendants), and single forum claims.