International Commercial Litigation by Richard Fentiman
| DOI | http://doi.org/10.1111/j.1468-2230.2011.849-1.x |
| Author | Jonathan Fitchen |
| Published date | 01 May 2011 |
| Date | 01 May 2011 |
Richard Fentiman, International Commercial Litigation,Oxford: Oxford
University Press, 2010,766 pp, hb d175.0 0.
This book is part of OUP’s Private International Law Series. It concerns the
subject of international commercial litigation under English and EU private
international law, and particularly the sometimes awkward interrelationship of
each bodyof law as applied by English judges and as explained by the European
Court of Justice.While such atopic is always of interest, what makes this book so
valuable is that its author has taken a step back from purelyacademic debate and
also from the mutual incomprehension sometimes evidencedby the well-rehearsed
arguments of some English and some ‘European’ private international lawyers.
Professor Fentiman approaches his subject from the perspective of the requirements
of the practice of international commercial litigation itself. His account thus trans-
cends the typical opposition of England versus the EU.The argument he advances
is based on eight basic principles of commercial practice which thereafter inform
the discussions in the text.This reviewer makes no apology for summarising these
principles here, since they represent what is distinctive about the book.
The ¢rst principle is that the legal solution proposed to a legal problem must ¢rst
be commercially realistic. The second principle is that private international law
should be understood as important not in and of itself but because of the strategic
choicesito¡erstothelitigant.Thethirdprincipleisthatcommerciallitigationaims
at the economic production of a settlement, rather than the resolution of issues
necessarily of interest to academics.The fourth principle is that interlocutory actions
often possess a‘disproportionate’importance in international commercial litigation
as they may resolve otherwise uncertain issues which obstruct negotiations leading
to settlement. The ¢fth principle is that commercial litigation is based upon an
evaluationof cost and bene¢t i nterms of the l itigant’s moneyand commercial repu-
tation.The sixth principle is that the evaluation referred to in principle ¢ve is based
around a risk assessment exercise conducted byeach litigant and focusedon achiev-
ing a favourable settlement of the dispute. Predictability of legal rules and legal
practicewill assist this exercisejust as surely as unpredictability ineither will hinder
it. The seventh principle is that the risk of becoming involved in international
litigation (litigation risk) is also in£uential at the negotiating and drafting stage
of a commercial transaction (transaction risk). The eighth principle is that when
individual commercial transactions arev iewed collectively the issue of systemic risk
becomes relevantto the adjudicatory and dispute resolutionprocedures provided by
national and international private international laws.
This substantial book is organised into eighteen chapters.It does not followthe
‘text-book’approach to matters of private international law: for instance, by ¢rst
addressingmatters of jurisdiction and then choice of lawand ¢nally enforcement.
Fentiman instead adopts a commercial practice-oriented approach consistent
with the books’focus.There is no detailed consideration of arbitration or other
alternative methods of dispute resolution. These omissions, concerning which
the author is frank in his Introduction, are reasonablewhen taking into account
the aim and scope of the book.
The scene is set with an introductionto the various forms of risk, after which
the author places English and EU private international laws in context before
Reviews
496 r2011The Authors.The Modern Law Review r2011The Modern Law ReviewLimited.
(2011)74(3) 479^501
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