TRANSNATIONAL LITIGATION AND ELEMENTS OF FAIR TRIAL-

approach. The fair trial guarantee may be invoked to invalidate particular misconceived pieces of legislation or CO restrict their scope of application. It is worth noting that civil law courts are not alone in performing such operations. Judges in every country are more and more aware of belonging to a developing global community. The emergence of such a community of courts may achieve a number of goals in this respect: a cross-fertilization of legal cultures in general, but also solutions to some specific legal problems related to transnational disputes in particular. The Report gives some examples of inconsistencies of civil law systems that can be eliminated by applying the Fair trial guarantee. The first example is related to the lis alibi pendens exception. If the problem of lis alibi pendens and parallel proceedings is resolved on the basis of the continental European priority rule, it may well happen that a court is seised by, e.g., a inscriming procedings negative declaration (or relief), with a Revista Eletrônica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periódico Semestral da Pós-Graduação Stricto Sensu em Direito Processual da UERJ Patrono: José Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 511 view to prevent litigation before the second seised court. In such situations, avoid abusive litigation, the fair trial guarantee de lege lata may allow the second seis court to retain its jurisdictional powers and to go further with its proceedings, if it pears that the dispute will not be fairly and effectively resolved by the first seised cou The second example is related to the forum non conveniens doctrine. in cases when is absolutely inappropriate for the court vested with jurisdiction to handle proceedir with Foreign parties, e.g. because the court and the lawyer are completely ignorant of t foreign language and reliable translators are not available, the fair trial guarantee de If lata may exceptionally allow the court to decline its jurisdiction, applying the doctri of forum non conveniens. In the light of the U.S. due process guarantee we can look one of the most critical aspects related to the recognition and enforcement of judgment under the Brussels Convention and Regulation no 44/2001. Subject to few exceptio the jurisdiction of the court of the Member State of origin may not be reviewed by the court seised with the enforcement request in other Member States. The public policy defence may not be applied to the rules related to jurisdiction. The European solution is an example of the disproportionate influence of public policy considerations (in d case: the smooth functioning of the internal market) with regard to the balance between the plaintiff's and the defendant's interests. In other words, if the fairness of the exert of jurisdiction over a non-resident defendant is an element of fair trial, the respect this fairness, as is envisaged by the Convention and the EC Regulation no. 44120 norms on jurisdiction, should also be reviewed in the State where the recognition a enforcement is sought, through the public policy defence. It is true that the public policy exception is an "emergency brake" to be activated only in exceptional cases, but the cases cannot be restricted so as to prejudice the guarantee of a fair trial. National courts should be encouraged to take the opportunity to put a preliminary question before t ECI. under Art. 267, TFEU, on the validity of Art. 28, III, Convention (Arr. 35, I EC Regulation no 44/2001) vis-a-vis Art. 47 of the Charter of Fundamental Rights the European Union. VI. The final part of the report briefly sketches some specific aspects of the fair trial guarantee in transnational disputes, such as the principle of equality, the determinate of the judicial jurisdiction, the interim protection of rights, the right to Revista Eletrônica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periódico Semestral da Pós-Graduação Stricto Sensu em Direito Processual da UERJ Patrono: José Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 512 engage a lawyer, the language, the extension of time limits, the question of the abuse of process, the abuse of jurisdiction by the plaintiff, the public policy exception.


508
both domestic and transnational. Public policy concerns should nor affect the balance between the interests of plaintiffs and defendants. This is true for both the interest of the State in exercising its jurisdiction to adjudicate and any interest the State may have in maintaining control over its territory (territorial sovereignty), as well as For the European Union policies referring to the "sound operation" of the internal market. Normally, public concerns can intervene in favour of either party in the dispute. Thus, the Forum State interest in exercising its jurisdiction to adjudicate is normally exercised in favour of the plaintiff whereas the sovereign interests of the State in avoiding (or limiting to certain means) cross-border discovery or service of foreign process on its own territory favors the Pendant who is resident there.
When assessing the relationship between parties' interests and public concerns, one should observe the following guideline. If the interest of a polity is on the side of one parry (either the plaintiff or the defendant), such a situation should not be detrimental to the "essence" (Wesensgehalt) of the fair trial guarantee and thereby damaging the counterparty. In other words, the regulation of transnational litigation as well as the regulation of domestic litigation should focus on the balance between the parties' interests. Little room should be given to considerations of public interest or of public policy which are not related to either the private interest of parries or to the needs of justice.
Of course, public policy issues should play a major role in our globalized world.
However, it is primarily the political system that should be entrusted with the task of governing globalization and the regulation of transnational litigation has a limited role to play in this context. From the perspective of advancing the public interest, the regulation of transnational litigation has a specific and limited yet important task. It is the task of making the system of civil justice more competitive vis-a-vis arbitration. policies, nor only in the field of transnational litigation but also in the civil procedure more generally. If we agree on the purpose of restoring the competitiveness of state civil justice vis-à-vis arbitration, the path to take is to extend the degree of negotiability of procedural rules, and determine what exactly we consider to be non-negotiable. V.
In order to remove some regulatory deficiencies of civil law systems, and particularly of the European Union civil justice system, the U.S. approach and the central role played by the constitutional due process guarantee in shaping fundamental aspects transnational litigation, should be considered as a good model. This view is by no means new, but it is worth repeating and adapting it to present circumstances. The new legal framework introduced in the European Union law by the Lisbon Treaty makes this proposal more acceptable and more practicable than it was twenty years ago. The European Union now recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union, which shall have the same legal value as the Treaties. In other words, the Charter has become a legally binding instrument of primary EU law. Among the rights set out in the Charter, there is the right to an effective remedy and to a fair trial. Art. 47 Ch. largely corresponds EU Art. 6 and Art. 13 ECHR. The Lisbon Treaty also provides for the accession of the EU to the ECHR.
The European Court of justice, through long-standing case law has affirmed the role of the Convention in the operation of EU law. According to Art. 52(3) Ch., in so far as the Charter contains rights which correspond to the rights guaranteed by the ECHR, 510 the meaning and scope of these rights shall be the same as those laid down by the Convention. Moreover, it is worth mentioning that Art 6(3) TEU also makes reference to the Convention. It provides that fundamental rights, as guaranteed by the Convention and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the EU law. The fairness-based approach is common to both the U.S. legal system and civil law systems. In the continental legal tradition, the pre-determined rules of jurisdiction are also determined on the basis of considerations of proximity and fairness. Adjudicatory authority has never been based solely on the fact that a person is to be found within the territory of a State court. Rules conferring jurisdiction are drafted in a general, abstract manner.
The underlying view has always been that the established jurisdiction is fair to both the parties. Nevertheless, this general-abstract approach may fail in particular circumstances. This is a more general point and applies not only with regard to the rules of jurisdiction. Pre-established rules enhance the certainty and predictability of the law, but they are drafted in relation to the usual course of events. Fair results in applying the law rely both on pre-established rules and on standard situations in which the rules are to be applied. However in exceptional circumstances the application of pre-fixed rules may lead to unfair, even inequitable, outcomes. In such a context there is room for constitutional considerations, through the application of the fair trial guarantee by the courts. In civil law systems, it is not necessary to set aside the general, abstract approach. The fair trial guarantee may be invoked to invalidate particular misconceived pieces of legislation or CO restrict their scope of application. It is worth noting that civil law courts are not alone in performing such operations. Judges in every country are more and more aware of belonging to a developing global community. The emergence of such a community of courts may achieve a number of goals in this respect: a cross-fertilization of legal cultures in general, but also solutions to some specific legal problems related to transnational disputes in particular.
The Report gives some examples of inconsistencies of civil law systems that can be eliminated by applying the Fair trial guarantee. The first example is related to the lis alibi pendens exception. If the problem of lis alibi pendens and parallel proceedings is resolved on the basis of the continental European priority rule, it may well happen that a court is seised by, e.g., a inscriming procedings negative declaration (or relief), with a abusive litigation, the fair trial guarantee de lege lata may allow the second seis court to retain its jurisdictional powers and to go further with its proceedings, if it pears that the dispute will not be fairly and effectively resolved by the first seised cou The second example is related to the forum non conveniens doctrine. in cases when is absolutely inappropriate for the court vested with jurisdiction to handle proceedir with Foreign parties, e.g. because the court and the lawyer are completely ignorant of t foreign language and reliable translators are not available, the fair trial guarantee de If lata may exceptionally allow the court to decline its jurisdiction, applying the doctri of forum non conveniens. In the light of the U.S. due process guarantee we can look one of the The regulation of transnational litigation is not worlds apart from civil procedural law. 6 Transnational litigation does not seek to achieve any special or particular form of justice.
The problem is to balance access to the courts and effective protection of individual rights with the right to be heard. Indeed, these are "eternal" problems of civil procedure.

Substantive Law and Procedural Law
When discussing transnational litigation and elements of fair trial, it is necessary to point out from the outset the distinction between substantive law and procedural law.
It represents a crucial point in the regulation of transnational litigation before national courts.
Traditionally, the procedural law of the Forum State regulates all the aspects related to the judicial process (lex fori rule). On the other hand, in cases that show foreign elements, such as the nationality or the domicile of the parties, or the place of the performance of a contract, courts may apply foreign law to the dispute, in accordance with the conflict of laws rules of the Forum State (lex causae rule). 7 The distinction between the lex fori rule and the lex causae rule has its origins in medieval jurisprudence. The foundation of the modern State strengthened the distinction between the lex fori rule and the lex causae rule whereby judicial jurisdiction came to courts of a state were regulated by the law of a foreign state. However, the lex fori rule is nowadays based on practical, rather than on theoretical reasons. Accordingly, in some cases it may be acceptable that foreign procedural law has to be applied by the courts of the Forum State, in particular when this is required in order to improve the enforcement of the substantive law 8 .

Is Procedural Law Neutral?
The distinction between substantive law and procedural law has fostered the view that procedural law is "neutral" as regards substantive law. Therefore any procedural law could implement any substantive law 9 .
From the perspective of civil law, the idea of neutrality of procedural law is closely linked with the assumption of the priority of substantive law (ubi ins, ibi remedium). As a result of the combination of these two ideas one might have expected that the choice of law would have played a leading role in transnational litigation.
On the contrary, quite the opposite is true. The daily practice of the courts is dominated by rules of judicial jurisdiction as well as international civil procedure. This is a result of the strong differences among national procedural systems, in particular between the U.S. system and the rest of the world.

American "Exceptionalism"
The distinctiveness of the American system of civil litigation has led to the coining of the expression: American "exceptionalism". 10 In particular, the United States is a "plaintiff's heaven", 11 even though recent decisions of the U.S. Supreme Court may have changed to some extent the landscape of the pleading system. 12 The "American advantages" for the plaintiff in civil proceedings are discussed in detail in the Italian version of my report: contingency fees, no loser-pays rule, low court fees, pre-trial discovery, trial by jury, punitive damages, class actions. All these aspects need to be 8  Beyond these elements, the comparison between the U.S. civil procedure and the civil justice systems of other countries (especially of the European countries) shows differences between the overall purposes and role of civil justice. While in Europe civil litigation is not conceived as an instrument to effect important public policy goals and public interest litigation, in the United States the system of private civil justice is seen as an important element in the effective regulation of social and economic actors 13 .
This shows that the system of civil justice is all but neutral as to the means of protecting of private rights.

Public Policy Goals in Transnational Litigation
Public policy goals to be achieved by the regulation of the judicial process are more usu in transnational litigation than in domestic disputes. Let me provide two examples.

a) Jurisdiction of United States Courts
The first one stems from the U.S case law on judicial jurisdiction and can be found

Overstating Public Policy Concerns
It is worth referring to a number of critical situations, in which overstating public policy concerns can affect the balance between plaintiff's and defendant's interests.

a) Jurisdiction and Sovereignty
The first situation stems from the link between the exercise of judicial jurisdiction and sovereignty.
Traditional or classical thought in England would consider that "It is an essential attribute of the sovereignty of this realm, as of all sovereign independent states, that it should possess jurisdiction over all persons and things within its territorial limits and in all cases, civil and criminal, arising within these limits". 21 Accordingly, jurisdiction is established when the service of process is permitted: "Whoever is served with the King's writ, and can be compelled consequently to submit to the decree made, is a person over whom the Court has jurisdiction''. 22 In this way, the judicial jurisdiction relies on the "power theory", linked to the service of the writ upon the defendant. It is not concerned with the assessment of a proper connection between the parties to the dispute and the forum. Even the mere transient presence of a person in England (unless induced by fraud) suffices to render him amenable to the 19 The overall structure of the Convention has not been modified by the Regulation, which has amended only specific provisions. 20

b) Transnational Service of Process
The second critical situation concerns the transnational service of process. 25 The plaintiff's interest in an easy and speedy service of process has to be balanced with the defendant's interest in having knowledge of the document instituting the proceedings (as well as of the subsequent documents) in sufficient time to prepare his or her defence.
According to widespread opinion in the civil law systems, service of process is an act of sovereignty. 26 Thus, the State interest in having control over its territorial sovereignty plays a role in the service of process upon a defendant, who is resident there. According to this view, the service of process is only possible, as a rule, by "tolerance" (such as to direct service by consular and diplomatic channels), consent or collaboration in the framework of international judicial assistance. 27  The addressee is subsequently notified by post, but the communication doesn't affect the validity of the service of process.
In conclusion, a well balanced regulation of service of process should take into consideration the following points. (I) In order to fulfil its functions, service should be simple, quick, reliable and fair. 33 (2) Sovereignty concerns in transnational service of

c) Good Functioning of the EU Internal Market
The third critical situation where public policy intervenes in the assessment of trasnational civil proceedings can be related to the good functioning of the internal mar 34 This point is concerned with the State in which the addressee of service is resident. With regard t Forum State, a link between service of process and sovereignty can be assessed in the legal orders t English law). in which the international judicial jurisdiction depends upon whether the rules Forst of process have been complied with. In this context, jurisdiction -traditionally conceived as an ext of sovereignty -is established when service is permitted (R. Fenriman, 2010, p. 359). 35  The party against whom enforcement is sought is not in a position to raise any objection to the request. However, the Court of the Contracting Stare in which enforcement is sought must ex officio identify and review grounds for non recognition of the judgment. 40 If enforcement is declared, the parry against whom enforcement is sought may appeal against the decision within one month of service thereof. 41 Among the grounds of non recognition, in cases in which the judgment is given in default of appearance, there is the defective service of process, which occurs when the defendant has had no sufficient time to arrange for his defence. 42 Under the Brussels 1 Regulation (EC n. 44/2001), the enforcement statement is automatically issued after purely formal checks of the alleged documents, the court is left without any opportunity to raise of its own motion any of the grounds for non- 40  in maintaining control over its territory (territorial sovereignty), as well as for the European Union policies referring to the "sound operation" of the internal market.
Normally, public concerns can intervene in favour of either party in the dispute.
Thus, the Forum Scare interest in exercising its jurisdiction to adjudicate is normal Of course, I do not think that public policy issues should play no role in our globalised world. Rather I am of the opinion that quite the opposite is true. 48 However, it is primarily the political system that should be entrusted with the task of governing globalisarion and the regulation of transnational litigation has a limited role to play in this context. This topic provides an excellent example of the current tension between the right (and autonomy) of private parties and public policies, not only in the field of transnational litigation but also in the civil procedure more generally. If we agree on the purpose of restoring the competitiveness of state civil justice vis-à-vis arbitration, the path to não sei is to extend the degree of negotiability of procedural rules, and determine what exact we consider to be non-negotiable. 55 In other words, the way forward is to overcome the conception which does not recognize a middle-ground between arbitration, on the one hand, and state justice, on the other hand and to move towards a greater inclusion of the preferences of parties in the structure of the proceedings. This should be done to the extent that it does not hint the efficiency of the judicial process, in line with the objective of a fair settlement to t dispute. 56 In this context, the regulation on choice of court agreements stands our since it não sei make a significant contribution to the predictability of contractual relations between the parries. 57 The degree of predictability that the choice of court agreements can achieve obviously varies depending on the legislative framework that applies to them.
In civil 1aw, countries, a (valid) clause in which the parties had agreed on an exclusive choice of contends to be considered as binding for the courts. Conversely, in common     1997). In this case the Greek Ministry of Education wrote refused to allow the applicants to set up a private school. The Supreme Administrative Court qua the Ministry's decision but the Ministry refused to act accordingly. The Court reiterates that, according to its established case law: (para 40) "Article 6 para 1 secures to everyone the right to have any co relating to his civil rights and obligations brought before a court or tribunal: in this way it embo the 'right to a court', of which the right of access, that is the right to institute proceedings before co in civil matters, constitutes one aspect... However, that right would be illusory if a Contracting St domestic legal system allowed a final. binding judicial decision to remain inoperative to the derri of one party. It would be inconceivable that Article 6 para 1 should describe in derail procedural garantees afforded to litigants -proceedings that arc fair, public and expeditious -without protecting implementation of judicial decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of proceedings would be likely to lead to situations incompatible with the principle of the rule of law which the Contracting States undertook to respect when they ratified the Convention ... Execution of a judgment given by any court must therefore be regarded as an integral part of the 'trial' For the purposes of Article 6; moreover, the Court has already accepted this principle in cases concerning the length of proceedings". 72   statutes, it the sense that they provide for "long-arm" jurisdiction over defendants. it has its own rules of jurisdiction, that are uniform and binding for the Member States;

The European Approach to the Jurisdiction Rules
(2) in relationships between Member States such an autonomous system of international jurisdiction prevails over conflicting national rules of jurisdiction, including those generally regarded as exorbitant; (3)  Specifically, the Convention reduces the number of grounds which can operate to prevent the recognition and enforcement and it simplifies the enforcement procedure; (4) the autonomous interpretation of the Convention by a supranational Court, the European Court of Justice (ECJ). For more details on this aspects, H. Sagmeister, 2010. 83 In the first case, judicial review can be carried out by every judge and its effects arc confined to the decision at hand. In the second one, the review is carried out by a constitutional court seised by a referral an issue arising during a proceedings before an ordinary court or by a request of a number of parricui bodies. The Fairness-based approach is common to both the U.S The judges themselves are in many ways creating their own version of such a system. a bottom-up version driven by their recognition of the plurality of national. regional. and international legal systems and their own duties of fidelity to such systems. Even when they are interacting with one another within the framework of 2 treaty or national statutes. their relations are shaped by a deep respect. For each other's competences and the ultimate need, in a world of law, to rely on reason rather than other force." 94 There are a few countries where the problem of parallel proceedings is simply ignored, in particular for countries not recognizing and enforcing foreign judgments. in the absence of a treaty. 95 An example of a rule adopting this approach is Art. 27 of the Council Regulation EC 44/2001 (former Art. 21 of Brussels Convention): "Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other that the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction o the court first seized is established. 2. Where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favor of that court". In its decision on the case Gasser (Eq. 9 December 2003. C-116/02, Gasser) the European Court of Justice stated that under this provision courts are required to make an inquiry conceived as largely "automatic". In order to decide whether Logo on with its proceeding or to stay it, the court has to passes the same cause of action, the same parties and which proceedings were first commenced. In Gasse the If the problem of lis alibi pendens and parallel proceedings is resolved on the basis of the continental European priority rule, it may well happen that a court is seised first by, e. g., instituting a proceedings for negative declaration (or relief), with a view to prevent litigation before the second seised court. In such situations, to avoid abusive litigation, the fair trial guarantee de lege data may allow the second seised court to retain its jurisdictional powers and to go further with its proceedings, if it appears that the dispute will not be fairly and effectively resolved by the first seised court. 96

b) Forum Non Conveniens
The second example is related to the forum non conveniens doctrine. In cases where it is absolutely inappropriate for the court vested with jurisdiction to handle proceedings with foreign parties, e.g. because the court and the lawyer are completely ignorant of the foreign language and reliable translators are not available, the fair trial guarantee de lege lam may exceptionally allow the court to decline its jurisdiction, applying the doctrine of forum non conueniens. 97 dispute arose between an Austrian seller of children's clothes. Gasser, and an Italian buyer, Misat. The contract between them contained an exclusive choice of court agreement in Favour of the Austrian courts. However, Misat started proceedings first before an Italian court. That was a trick to take an (abusive) advantage of the 'first seized" rule by instituting proceedings in a country (Italy). where proceedings may take long time (Italian torpedo). Gasser brought proceedings in the Austrian courts which were therefore second seized. The Austrian party argued that as the Austrian courts had exclusive jurisdiction under the agreements those courts should proceed and heat the case even though the Ital ian proceeding had been commenced earlier. The ECJ decided that the priority rule set out in Arr. 2 niche Brussels Convention had to prevail over the exclusive choice of court agreement. Therefore the second seized court has to stay its proceedings. while the court first seized determines whether it has jurisdiction. In a following case, 27 April 2014, C-159102, Turner. the ECJ decided that it would be inconsistence with the Brussels Convention, if the courts of a Member State could grant anti-suit injunctions to restrain a party from pursuing proceedings in another EU Member State. With the decision. 10 February 2009, C-185/07, West Tankers Inc., the ECJ rendered it impossible to grant anti-suit injunction against the breach of an Arbitration agreement. With regard to matters of parental responsibility, the priority rule, as stated in Art. 19 (2). Reg. EU No. 2201/2003, has been mitigated in a particular case: S. 9 November 2010, C-296110. Purrucke C-1311. The rule reads as follows: where, notwithstanding efforts made by the court second seised to obtain information by enquiry of the parry claiming lis pendens, the court first seised and the central authority, the court second seised lacks any evidence which enables it to determine the cause of action proceedings brought before another court and which serves, in particular, to demonstrate the jurisdiction of that court in accordance with Regulation No. 2201/2003, and where, because of specific circumstances, the interest of the child requires the handing down of a judgment which may be recognized in Member States other than that of the court second seised, it is the duty of that court, after the expiry of a reasonable period in which answers to the enquiries made are awaited, to proceed with consideration of the action brought before it. The duration of that reasonable period must take into account the best interests of the child in the specific circumstances of the proceedings concerned. 96  "Application of the Forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum For the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of Article 2, and consequently to undermine the principle oflegal certainty, which is the basis of the Convention" (n. 41). 98 Reg. EC No. 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility goes one step further, namely towards the "court better plated to hear the case" (Art. 15): "I. By way of exception, the courts of a Member State having jurisdiction as to the substance of the matter may, if they consider that a court or another Member State, with which the child has a particular connection, would be better placed to hear the case, or a specific part thereof, and where this is in the best interests of the child: (a) stay the case or the part thereof in question and invite the parties to introduce a request before the court of that other Member State in accordance with paragraph 4: or (b) request a court of another Member State to assome jurisdiction in accordance with paragraph 5.1". 99 See e.g. Code civile of Quebec. 3135 "Even though the Quebec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authority of another country are in a better position to decide". On this point, see N. Crocker, 2011, p. 197, n. 53. 100 See Ali/Unidroit Principles of Transnational Civil Procedure, n. 2.5: "Jurisdiction may be declined r the proceeding suspended when the court is manifestly inappropriate relative to another more appre priate court that could exercise jurisdiction". Contracting State, be sued) as regards a civil claim for damages or restitution which is based on act giving rise to criminal proceedings. in the court seised of those proceedings, to the extent that tf court has jurisdiction under its own law to entertain civil proceedings]. Consequently, apart from the foregoing discussion of whether the German court may consider that there is a conflict with its public policy. the French court did not contravene the provisions of the Convention concerning jurisdiction in this respect either". This argument has not been taken up by the ECJ.  104  defence. 105 It is true that the public policy exception is an "emergency brake" to be activated only in exceptional cases, but these cases cannot be restricted so as to prejudice the guarantee of a fair trial. 106

IL Specific Aspects
This final part of the report briefly sketches some specific aspects of the fair trial guarantee in transnational disputes.

Principle of Equality: General Remarks
One of the elements of the Fair trial guarantee with regard to the regulation of transnational litigation which deserves attention is the principle of equality and its implications. Issues of fair trial in transnational litigation arise frequently due to the 538 material inequality between the party that acts in a foreign environment and the party acting in its own habitual environment. Peter Schlosser states this in a rather emphatic way: "foreign language to be used in court (including the particularly irritating judicial vocabulary) foreign rules of procedure, very often also foreign law with respect to the substance or the matter, the necessity of having counsel both at home and abroad, the concern that judges abroad may be biased in favour of their compatriot, particularly if the latter in posing as the victim of his opponent's fraudulent conduct, and uncertainty regarding the financial expenditures of the proceedings". 107 ' We can agree with these observations. Material inequality between the parties in transnational litigation is usually greater than in domestic disputes. Such an inequality is likely to affect the substance of justice in the resolution of the dispute.
However, material inequality between the parties is one of the "eternal" problems on civil procedure. This is not a feature that is peculiar to transnational disputes. It is now an aspect calling for a radically different approach from the one provided for domestic disputes. 108 If the focus is on those disputes with the greatest economic value, that is, on the business litigation of multinational companies, and we neglect small claims, it is easy to see that these problems are principally addressed through international networks on law firms. This is likely to reflect the national diversity of the multinational company activities. The multinational approaches a law firm in its home country and it is the assisted, in the Forum State, by another law firm, which is part of the same international network of law firms. This increases the expense, e.g., due to the costs incurred to cover the translation of documents and records. But the company solves the problem by allow caring more financial resources to the resolution of transnational litigation, compared to those assigned to the resolution of domestic disputes.

Principle of Equaliy: Specific Aspects
The equality of both parties in the process should however be examined If the foreign plaintiff is resident in the state, his or her access to the courts traditionally derives from a principle of customary international law concerning treatment of Foreigners, i.e. the duty to protect, the breach of which gives rise to the denial of justice. IF the foreigner is the defendant, the balance between the reasonable opportunity for the plaintiff to assert his or her rights before a court and the reasonable opportunity for the defendant to defend himself or herself is more difficult to achieve.
It depends on balanced and proportionate legislative provisions on the international jurisdiction to adjudicate. As has already been mentioned, this balancing must leave space for a "judicial correction" based on fairness and reasonableness derived from the guarantee of fair trial -of unfair results that can be determined in the particular case by the application of general rules on jurisdiction to adjudicate.

Jurisdiction
The determination of the judicial jurisdiction of courts is the "cornerstone" of any international litigation. It represents a central aspect of the guarantee of fair trial in transnational litigation. As has already been mentioned, the exercise of judicial jurisdiction is traditionally considered to be an aspect of sovereignty. Within its own sphere of sovereignty, the stare would be free to determine the conditions and limitations of the adjudicatory authority of its courts, with the exception of obligations Despite the differences between legal systems, there are some elements that are widely accepted at a global level that reflect a common core of the fair trial guarantee.
The first one is the parties' power to establish the international jurisdiction of a court b agreement. Furthermore, there are a number of grounds for jurisdiction that are base on a substantial connection of the parties or of the object of the dispute with the Forum State. 116 A substantial connection exists when a significant part of the transaction or event has taken place in the Forum Stare, for instance when an individual defendant a habitual resident of the Forum State or a legal entity has received its charter of organization or has its principal place of business therein, or when the property to which the dispute relates is located in the Forum State (forum rei sitae). 117

Interim Protection of Rights
The interim protection of rights is an indispensable tool for ensuring the effectiveness of judicial remedies and is therefore one of the fundamental Features of a fair trial. 118 The structure of the proceedings, the types of provisional remedies and

Right to Engage a Lawyer
The right to engage a lawyer should include both representation by a lawyer admitted to practice in the Forum and active assistance before the court of a lawyer admitted to practice elsewhere, e.g. in the party's home country. 123 In the United States it is worth mentioning the Pro Hac Vice Admission. 124 In the European Union it is worth mentioning both the Directive to facilitate the effective exercise by lawyers of freedom to provide services, 125 and the Directive to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. 126

Language
A common difficulty faced by the Foreign party participating in the proceedings is the need to act and defend himself or herself before a court in a language other than his or her mother-tongue. This problem should be neither underestimated, nor can it be considered as being resolved merely by guaranteeing representation by a lawyer from the Forum State.
If the Foreign party is sued, the service of process deserves a special treatment.
Therefore the provision of the Ali/Unidroit Principles, relating to this issue, is welcome.
According to this norm, the document instituting the proceedings has to be translated It cannot be denied that in some cases when translations are bad, they are "a cure worse than the disease". If it is a translation of a legal text the clash between different cultures (always present in translation work) is manifested as a clash between the two legal systems that constitute the start and end points of the translation work (if the language of the lex causae is different from the language of the lex fori).
Hence it is about firstly grasping the meaning of the terms, not only by reference to the legal nature of the language but also in the specific context of the legal order of origin and secondly identifying the terms that express the equivalent meaning in the terminology and the legal order of arrival. One faces the double and parallel work of

Extension of Time Limits
Foreign parties need more time than domestic parties to collect the necessary materials, to understand the judicial proceedings and to respond. Therefore, ad hoc extensions of time limits should be provided for Foreign parties by law or, where possible, by courts. 132 The judge must fix the timetable of the proceedings, taking into account the needs of the foreign party in particular. 133

Prohibition of Abuse of Process
The question of the abuse of process and its prohibition plays an important role in transnational litigation as an element of the fair trial guarantee. Beyond specific provisions the prohibition of abuse of process also acts as a general principle to prohibit conducts that is motivated solely by a desire to cause harm to others, despite the fact that such conduct is formally carried out in a legally correct manner. In the field of transnational litigation the problem of the abuse of process arises in several situations, and it is usually) dealt with on a case-by-case basis taking into account the individual circumstances of the proceedings in question. One could pose the question of the legal basis of such a prohibition on the abuse of process. Generally, the prohibition of abuse of process in transnational litigation can be considered as an aspect of the prohibition of abuse of right: as a general principle stemming from international customary law, 134 or, in Europe, as a general principle of European Union law. 135 Otherwise, we have to rely on particular remedies under international conventions or under the lex fori.
An analysis of the fair trial guarantee provides the opportunity to address the prohibition of abuse of process in transnational litigation and to identify the need to develop a specific normative framework for the regulation of this phenomenon. In In particular, exorbitant for are those most likely to be used for this kind of operations.
What remedies are available? A correct interpretation of the rules on jurisdiction sometimes helps to solve the problem. So the plaintiff cannot claim the jurisdiction of the German courts on the basis of the defendant's (personal) property that the plaintiff had brought to Germany against the will of the latter. 139