1 The term “extraterritorial” refers to the location of the required conduct. References to “foreign” or “international” discovery are imprecise, because they do not specify the nature of the nondomestic element. For example, “foreign” discovery may refer to conduct on foreign territory or to some other foreign element such as the nationality of a witness.

2 The coercive effect of such an order derives from the expectation that failure to obey the order will lead to the imposition of sanctions. The fact that the order does not itself contain such sanctions does not make it any less coercive.

3 The central conflicts arise from two facts. First, the United States permits the use of state power to search for information rather than merely to secure identified information. Second, it authorizes private attorneys to direct this power with minimal judicial supervision. For detailed discussion, see Gerber, , Extraterritorial Discovery and the Conflict of Procedural Systems: Germany and the United States, 34 Am. J. Comp. L. 745 (1986)CrossRefGoogle Scholar. For a penetrating comparative analysis of procedural systems, see Dam Aska, M., The Faces of Justice and State Authority (1986)Google Scholar.

4 For discussion of the development of the problem, see Gerber, supra note 3, at 746–47.

5 See, e.g., Restatement (Third) of Foreign Relations Law of the United States §442 Reporters’ Note 1 (1988) (“No aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the requests for documents in investigation and litigation in the United States”) [hereinafter Restatement (Third)].

6 Developing such a framework is made particularly difficult by the fact that disputes concerning U.S. discovery procedures generally arise in U.S. courts, and therefore U.S. courts must develop and apply legal principles to resolve international conflicts caused by U.S. policies.

7 Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for the S. Dist. of Iowa, 107 S.Ct. 2542 (1987) [hereinafter Aerospatiale].

8 The last major Supreme Court case on this issue was Societe Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958).

9 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, done Mar. 18, 1970, 23 UST 2555, TIAS No. 7444, 847 UNTS 231. This treaty was expressly intended to “bridge the gap” between U.S. and foreign procedures by providing mechanisms through which United States courts could acquire evidence located in foreign countries without resorting to U.S. discovery rules.

The most important procedure created by the Convention permits a signatory state to request information from a court in another signatory state, and it establishes an international legal obligation on the requested state to provide the requested information. For discussion, see 1 Ristau, B., International Judicial Assistance (Civil and Commercial) 192–257 (1986)Google Scholar.

10 States that are currently parties to the Convention include: Barbados, Cyprus, Czechoslovakia, Denmark, Finland, France, the Federal Republic of Germany, Israel, Italy, Luxembourg, Monaco, the Netherlands, Norway, Portugal, Singapore, Sweden, the United Kingdom and the United States. See 8 Martindale-Hubbell Law Directory 12–21 (1987).

11 Numerous nonparty organizations and countries filed amicus curiae briefs, including the Italy–America Chamber of Commerce, Inc.; the Motor Vehicle Manufacturers Association of the United States, Inc.; the Product Liability Advisory Council, Inc.; Volkswagen AG; the Federal Republic of Germany; Switzerland; France; the United Kingdom; the United States; and the Securities and Exchange Commission.

12 A second defendant was the Société de Construction d’Avions de Tourism[e].

13 Defendants apparently did not argue that they were immune from jurisdiction under the doctrine of foreign sovereign immunity. See Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1330, 1602–1611 (1982).

14 Delay in raising the Hague Evidence Convention issue may have caused that argument to appear as something of an afterthought. Moreover, the possibility of cutting off discovery already begun obviously entails potential unfairness to one of the litigants. This also happened in another case on the same issue that had reached the Supreme Court the preceding year. See In re Anschuetz & Co., 754 F.2d 602 (5th Cir. 1985), remanded, 107 S.Ct. 3223 (1987).

15 Aerospatiale, 107 S.Ct. at 2546.

16 The magistrate denied the motion with respect to all discovery requests, except the request for oral depositions to be taken on French territory. Jones v. Societe Nationale Industrielle Aerospatiale, Civ. 82–435 C, App. to Pet. for Cert. 25a (July 31, 1985) (LEXIS, Genfed library, Briefs file).

17 In re Societe Nationale Industrielle Aerospatiale, 782 F.2d 120 (8th Cir. 1986).

18 Id. at 125.

19 Aerospatiale, 107 S.Ct. at 2554.

20 Id. at 2553.

21 Id. at 2558 (Blackmun, J., dissenting).

22 See, e.g., Work v. Bier, 106 F.R.D. 45 (D.D.C. 1985); International Soc’y for Krishna Consciousness v. Lee, 105 F.R.D. 435 (S.D.N.Y. 1984); Slauenwhite v. Bekum Maschinenfabriken GmbH, 104 F.R.D. 616 (D. Mass. 1985); and Graco Inc. v. Kremlin, Inc. & SKM, 101 F.R.D. 503 (N.D. Ill. 1984). But see, e.g., Schroeder v. Lufthansa German Airlines, 19 Fed. R. Serv. 2d 211 (N.D. Ill. 1983); and Pierburg v. Superior Court of Los Angeles County, 137 Cal. App. 3d 238, 186 Cal. Rptr. 876 (1982).

23 See, e.g., Amram, , Explanatory Report on the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 12 ILM 327 (1973)Google Scholar; 1 B. Ristau, supra note 9, at 253–55; and McLean, , The Hague Evidence Convention: Its Impact on American Civil Procedure, 9 Loy. L.A. Int’l & Comp. L.J. 17, 62 (1986)Google Scholar. But see Radvan, , The Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters: Several Notes Concerning Its Scope, Methods and Compulsion, 16 N.Y.U. J. Int’l L. & Pol. 1031 (1984)Google Scholar; and Comment, , The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad, 132 U. Pa. L. Rev. 1461 (1984)Google Scholar.

For a summary of the foreign and domestic commentary on the exclusivity of the Convention, see McLean, supra, at 42–47.

24 Aerospatiale, 107 S.Ct. at 2554.

25 Id. at 2554–57.

26 Id. at 2561–62, 2567 (Blackmun, J., dissenting).

27 Id. at 2555–56.

28 Id. at 2555.

29 Id. at 2556.

30 Id. at 2561–62, 2567–68 (Blackmun.J., dissenting).

31 Id. at 2569 (Blackmun, J., dissenting).

32 See generally Yntema, , The Comity Doctrine, 65 Mich. L. Rev. 9 (1966)CrossRefGoogle Scholar. The Supreme Court case most often cited for the concept of comity is Hilton v. Guyot, 159 U.S. 113 (1895).

33 Aerospatiale, 107 S.Ct. at 2555 n.27.

34 Restatement (Revised) of Foreign Relations Law of the United States (Tent. Draft No. 7, 1986). Although the latter version was used by the Court, references below will be to the recently published Restatement (Third), supra note 5. For an evaluation of the new provisions concerning extraterritoriality, see Fox, , Extraterritoriality, Antitrust, and the New Restatement: Is “Reasonableness” the Answer?, 19 N.Y.U.J. Int’l L. & Pol. 565 (1987)Google Scholar.

35 Aerospatiale, 107 S.Ct. at 2555 n.28 (§437 is §442 of the Restatement (Third), supra note 5).

36 Section 442 of the Restatement (Third), supra note 5, provides, in relevant part:

In deciding whether to issue an order directing production of information located abroad, and in framing such an order, a court or agency in the United States should take into account the importance to the investigation or litigation of the documents or other information requested; the degree of specificity of the request; whether the information originated in the United States; the availability of alternative means of securing the information; and the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.

The version used by the Court was substantially the same.

37 Aerospatiale, 107 S.Ct. at 2556.

38 Id. at 2557.

39 Id. at 2555–57.

40 Id. at 2557.

41 The Court’ to provide a structured framework of analysis does not mean that the Court intended that it be unstructured; the opinion simply does not provide guidance on the issue.

42 The assumption here is not that legal concepts have inherent or logically discernible content, or that such concepts can be given fixed and unambiguous content. I do assume, however, that legal processes can and regularly do ascribe content to individual concepts and that this content reasonably can be ascertained by using the methods and conventions of the social institutions in which those processes operate. The so-called deconstructionist critique of legal reasoning does not, therefore, undermine the assumptions on which my analysis is based. For discussion of one version of the deconstructionist view, see Kennedy, , Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1725–37 (1976)Google Scholar.

43 For discussion of the distinction between rules and principles, see Dworkin, R., The Model of Rules I, in Taking Rights Seriously 14 (1981)Google Scholar.

44 This assertion does not assume a passive judicial decision maker who is somehow “bound” by the content of the principles. It does assume, however, that conscious application by a judge of a particular set of concepts to a given fact situation will significantly influence the outcome of the decision.

45 The role of structure in cases involving transnational legal claims must be assessed differently from its role in purely domestic disputes. In the domestic context, those affected by a judicial decision are subject to the authority of the state and cannot take legal action to interfere with the state’s regulatory objectives. Moreover, they are presumed to have consented to the authority of the judge, and as members of the polity in which the judge acts they are presumed to be in a position to respond effectively to improper use of judicial discretion. Consequently, the potential adverse impact of ad hoc decision making is minimized.

In the extraterritorial discovery context, however, foreign states can and do take legal measures (e.g., blocking legislation) that obstruct the ability of the United States to accomplish its objectives. Moreover, those states have not consented to the authority of the U.S. judge. As a result, the degree of structure in the applicable analytical framework becomes a critical determinant of the response of foreign states to extraterritorial discovery practices, because it is the central source of information concerning the probable actions of the judge.

46 For discussion of the need for predictability in applying comity principles, see Note, Predictability and Comity: Toward Common Principles of Extraterritorial Jurisdiction, 98 Harv. L. Rev. 1310(1985).

47 See, e.g., Heck, , U.S. Misinterpretation of the Hague Evidence Convention, 24 Colum. J. Transnat’l L. 231, 278 (1986)Google Scholar; Steiner, H. & Vagts, D., Transnational Legal Problems 611 (2d ed. 1976)Google Scholar; and Wilkey, , Transnational Adjudication: A View from the Bench, 18 Int’l Law. 541, 542–43 (1984)Google Scholar.

48 See infra text accompanying notes 145–50.

49 See Aerospatiale, 107 S.Ct. at 2560 (Blackmun, J., dissenting); Heck, supra note 47, at 279; H. Steiner & D. Vagts, supra note 47, at 611; and Wilkey, supra note 47, at 542–44.

50 See Langbein, , The German Advantage in Civil Procedure, 52 U. Chi. L. Rev. 823, 830–32 (1985)Google Scholar.

51 Such a discussion was not necessary to resolve the case, and the Court therefore cannot be faulted for failing to include it. Considering the paucity of guidance concerning the principles of analysis to be used in such cases, however, one must regret the Court’s failure to clarify the situation.

52 The Court also failed adequately to identify the relationship between the principles it was enunciating and existing case law. Although many of the issues in previous cases have either been resolved or rendered irrelevant by Aerospatiale, those cases remain an important source of guidance on, e.g., the application of international law to discovery and the evaluation of fairness in extraterritorial discovery. For a digest of such cases, see Note, Hague Evidence Convention: A Practical Guide to the Convention, United States Case Law, Convention-Sponsored Review Commission (1978 & 1985), and Responses of Other Signatory Nations: With Digest of Cases and Bibliography, 16 Ga. J. Int’l & Comp. L. 73, 99, App. A (1986).

53 For discussion of the entitlement concept, see D’Amato, , The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1100, 1113 (1982)Google Scholar.

54 See, e.g., The Paquete Habana, 175 U.S. 677, 700 (1900); The Over the Top, 5 F.2d 838, 842 (D. Conn. 1925); and Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252–53 (1983). For discussion of the relations between national and international law, see, e.g., 2 Nerep, E., Extraterritorial Control of Competition Under International Law, ch. VII (1983)Google Scholar; and Dickinson, , The Law of Nations as Part of the National Law of the United States, 101 U. Pa. L. Rev. 26, 792, pts. I & II (1952–53)Google Scholar.

55 See generally Henkin, , International Law as Law in the United States, 82 Mich. L. Rev. 1555, 1567 (1984)Google Scholar.

56 Aerospatiale, 107 S.Ct. at 2555–56.

57 An argument that sovereign interests can be determined without reference to international law would be hard to sustain, because without reference to international law there would be no basis for ascribing content to the concept.

58 Aerospatiale, 107 S.Ct. at 2556. 59 Id. at 2542, 2555.

60 This requirement of fairness derives from the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. See generally Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980); International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). See also Maier, , Interest Balancing and Extraterritorial Jurisdiction, 31 Am. J. Comp. L. 579, 582 (1983)Google Scholar; and Newman, , Rethinking Fairness: Perspectives on the Litigation Process, 94 Yale L.J. 1643 (1985)CrossRefGoogle Scholar.

Fairness is also specifically called for in the discovery context in Fed. R. Civ. P. 26(c), which states, in relevant part, that a court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” See generally Kerschbaumer v. Bell, 112 F.R.D. 426, 427 (D.D.C. 1986).

61 A court applying an unstructured “balancing” analysis based on an undefined standard of “importance” to a conflict between the interests of a state and those of an individual would in most cases presumably find that the interests of the state were more “important,” because a state’s conduct typically has more numerous and significant effects on persons and institutions than an individual’s.

62 See, e.g., Heck, supra note 47, at 252 (“U.S. law recognizes that discovery abroad is different from domestic proceedings and therefore may have to be exercised more restrictively”); Lowenfeld, , Sovereignty, Jurisdiction, and Reasonableness: A Reply to A. V. Lowe, 75 AJIL 629, 634 (1981)Google Scholar; and von Mehren, R., Transnational Litigation in American Courts: An Overview of Problems and Issues, 3 Dick. J. Int’l L. 43, 50 (1984)Google Scholar.

63 In some cases, the fairness doctrine may be applied after a discovery order has been entered. The Supreme Court indicated in Societe Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197 (1958), that this may be a more appropriate procedural context for evaluating certain issues.

Evaluation of fairness issues need not, however, be confined to this procedural context, and there may be significant waste and unfairness in doing so. Where a court reasonably believes, for example, that foreign blocking legislation would be applied to prevent compliance with its order, requiring the litigant to attempt to evade its application is likely to be both wasteful and useless.

64 See, e.g., Garpeg, Ltd. v. United States, 583 F.Supp. 789, 797 (S.D.N.Y. 1984); Compagnie Francaise d’Assurance pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 30 (S.D.N.Y. 1984); and Graco Inc. v. Kremlin, Inc. & SKM, 101 F.R.D. 503, 514 (N.D. 111. 1984).

65 See, e.g., United States v. Vetco, Inc., 644 F.2d 1324, 1332 (9th Cir. 1981), cert, denied, 454 U.S. M)98 (1981); and United States v. First Nat’l City Bank, 396 F.2d 897, 905 (1968).

66 Where the penalty involves a fine, ability to pay may also be a factor. A $5,000 fine, for example, may be a significant factor for a small firm but a bagatelle for a large firm.

67 The foreign party presumably cannot comply where the situs state uses force to prevent compliance, as well as where the penalties for violating the statute would involve loss of personal freedom or significant financial burdens.

68 Aerospatiale, 107 S.Ct. at 2567.

69 Id.

70 The degree of specificity in requesting information is critical. Requests for specific information— e.g., documents relating to a particular conversation—generally also entail fewer burdens on the requested party than broader discovery requests.

71 See, e.g., In re Anschuetz & Co., 754 F.2d 602, 607 (5th Cir. 1985), remanded, 55 U.S.L.W. 3852 (1987); and Cooper Indus, v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984). See generally Sadoff, , The Hague Evidence Convention: Problems at Home of Obtaining Foreign Evidence, 20 Int’l Law. 659, 664–65 (1986)Google Scholar.

72 See, e.g., International Soc’y for Krishna Consciousness v. Lee, 105 F.R.D. 435, 446 (S.D.N.Y. 1984).

73 See, e.g., McLaughlin v. Fellows Gear Shaper Co., 102 F.R.D. 956 (E.D. Mo. 1984). See generally Rosdeitcher, , Foreign Blocking Statutes and U.S. Discovery: A Conflict of National Policies, 16 N.Y.U. J. Int’l L. & Pol. 1061 (1984)Google Scholar.

74 See, e.g., Graco Inc. v. Kremlin, Inc. & SKM, 101 F.R.D. 503, 513 (1984); and In re Uranium Antitrust Litigation, 480 F.Supp. 1138, 1147 (N.D. Ill. 1979).

75 See, e.g., Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58, 61 (E.D. Pa. 1983); and Laker Airways v. Pan American World Airways, 103 F.R.D. 42 (D.D.C. 1984).

76 The Court’s failure to discuss this issue in Aerospatiale may have been based on the assumption that no such customary law norms were involved in the case, and therefore that there was no need to address the point.

77 For discussion of the noninterference principle, see Gerber, , Beyond Balancing: International Law Restraints on the Reach of National Laws, 10 Yale J. Int’l L. 185, 209–20 (1985)Google Scholar. See generally Brownlie, I., Principles of Public International Law 310 (3d ed. 1979)Google Scholar; and Lawrence, T., The Principles of International Law 120 (Winfield, P. 7th rev. ed. 1923)Google Scholar.

78 See, e.g., I. Brownlie, supra note 77, at 306–07. According to Hans Kelsen:

That the territory enclosed by the boundaries of a state legally belongs to this state or—as it is usually characterized—that it is under the territorial supremacy or sovereignty of this state means that all individuals staying on this territory are, in principle, subjected to the legal power of that state and only of that state.

Kelsen, H., Principles of International Law 317–18 (Tucker, R. W. 2d rev. ed. 1966)Google Scholar.

79 See, e.g., 1 Whiteman, M., Digest of International Law 225 (1963)Google Scholar; Mann, , The Doctrine of Jurisdiction in International Law, 111 Recueil des Cours 1, 127–58 (1964 I)CrossRefGoogle Scholar; and Oxman, , The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Evidence Convention, 37 U. Miami L. Rev. 733, 751 (1983)Google Scholar.

80 See, e.g., 6 M. Whiteman, supra note 79, at 160–83 (1968); and Ings v. Ferguson, 282 F.2d 149, 151 (2dCir. 1960).

81 See generally 1 B. Ristau, supra note 9, at 90–93; Lorenzen, , Territoriality, Public Policy and the Conflict of Laws, 33 Yale L.J. 736 (1924)CrossRefGoogle Scholar; Oxman, supra note 79, at 749–52; and Note, Limitations on the Federal Judicial Power to Compel Acts Violating Foreign Law, 63 Colum. L. Rev. 1441 (1963). See also, e.g., Work v. Bier, 106 F.R.D. 45, 48 (D.D.C. 1985); and Graco Inc. v. Kremlin, Inc. & SKM, 101 F.R.D. 503, 513 (N.D. III. 1984).

82 See, e.g., Brief for the Republic of France at 16, Aerospatiale, 107 S.Ct. 2542 (1987); Brief for the Federal Republic of Germany at 13, id.; and Brief for the Government of Switzerland at 8, id.

83 For cases refusing orders for extraterritorial document inspection on sovereignty grounds, see, e.g., Compagnie Francaise d’Assurance pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 35 (S.D.N.Y. 1984); Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58, 60 (E.D. Pa. 1983); TH. Goldschmidt A.G. v. Smith, 676 S.W. 2d 443, 445 (Tex. App. 1984) (“[discovery orders] that conflict with West German reservations under the Convention . . . impinge upon the sovereignty of the Federal Republic of Germany and should not be issued in ordinary circumstances”); and Volkswagenwerk A.G. v. Superior Court, 123 Cal. App. 3d 840, 850, 176 Cal. Rptr. 874, 883 (Ct. App. 1981) (discovery orders executed in West Germany “would violate West German judicial sovereignty”).

For cases holding that such orders would not violate foreign sovereignty, see, e.g., International Soc’y for Krishna Consciousness v. Lee, 105 F.R.D. 435, 449 (S.D.N.Y. 1984); and Graco Inc. v. Kremlin, Inc. & SKM, 101 F.R.D. 503, 520 (N.D. 111. 1984).

84 See, e.g., In re Messerschmitt Bolkow Blohm GmbH, 757 F.2d 729 (5th Cir. 1985), remanded, 107 S.Ct. 3223 (1987); In re Anschuetz & Co., 754 F.2d 602, 615 (5th Cir. 1985), remanded, 107 S.Ct. 3223 (1987) (“If Anschuetz is not voluntarily forthcoming in Germany, the court can order documents and the examination of witnesses to occur in the United States to avoid any infringement upon German sovereignty”); and International Soc’y for Krishna Consciousness v. Lee, 105 F.R.D. 435, 449 (S.D.N.Y. 1984).

85 See, e.g., In re Societe Nationale Industrielle Aerospatiale, 782 F.2d 120, 123–24 (8th Cir. 1986); Boreri v. Fiat S.p.A., 763 F.2d 17, 19 (1st Cir. 1985); Compagnie Francaise d’Assurance pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 26 (S.D.N.Y. 1984); and Volkswagenwerk A.G. v. Superior Court, 123 Cal. App. 3d 840, 852, 176 Cal. Rptr. 874, 881 (1981).

86 See, e.g., Report of United States Delegation to Eleventh Session of Hague Convention on Private International Law, 8 ILM 785, 806 (1969) [hereinafter 1969 Delegation Report].

87 For description of the development of this concept, see Gerber, supra note 3, at 775–79. See also Oxman, supra note 79, at 761–65; and Report of the Special Commission on the Operation of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (July 1985), 24 ILM 1668, 1678 (1985) [hereinafter 1985 Special Commission Report]. In drafting the Convention, this concept of judicial sovereignty was “constantly borne in mind.” 1969 Delegation Report, supra note 86, at 806.

88 See, e.g., Lowrance v. Michael Weining, GmbH, 107 F.R.D. 386, 388–89 (W.D. Tenn. 1985); and Cooper Indus, v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984).

89 See, e.g., Work v. Bier, 106 F.R.D. 45, 56–57 (D.D.C. 1985); International Soc’y for Krishna Consciousness v. Lee, 105 F.R.D. 503, 520 (N.D. Ill. 1984); Cooper Indus, v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984); and Volkswagenwerk Aktiengesellschaft v. Superior Court, 33 Cal. App. 3d 508, 509, 109 Cal. Rptr. 219, 220 (1973). For discussion of the difficulties of taking depositions in a foreign state, see Smit, , International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053–59 (1961)Google Scholar; and Jones, , International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L.J. 515, 522–34 (1953)Google Scholar.

90 See, e.g., McLaughlin v. Fellows Gear Shaper Co., 102 F.R.D. 956, 959 (E.D. Pa. 1984) (court declined to order compliance because “some of the requests for production of documents, because of their sweeping character, may very well require of persons located in West Germany, efforts which would be substantially equivalent to producing evidence in that country”); and Philadelphia Gear Corp. v. American Pfauter Corp., 100 F.R.D. 58, 60 (E.D. Pa. 1983).

91 See, e.g., In re Anschuetz & Co., 754 F.2d 602, 611 (5th Cir. 1985), remanded, 107 S.Ct. 3223(1987); and In re Societe Nationale Industrielle Aerospatiale, 782 F.2d 120, 124–25 (8th Cir. 1986).

92 See, e.g., In re Messerschmitt Bolkow Blohm GmbH, 757 F.2d 729, 732 (5th Cir. 1985), remanded, 107 S.Ct. 3223 (1987); In re Anschuetz & Co., 754 F.2d 602, 615 (5th Cir. 1985), remanded, 107 S.Ct. 3223 (1987); International Soc’y for Krishna Consciousness v. Lee, 105 F.R.D. 503, 521 (N.D. Ill. 1984); Lowrance v. Michael Weining, GmbH, 107 F.R.D. 386, 388 (W.D. Tenn. 1985); and Cooper Indus, v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984).

93 See, e.g., In re Anschuetz & Co., 754 F.2d 602, 615 (5th Cir. 1985), remanded, 107 S.Ct. 3223 (1987); In re Messerschmitt Bolkow Blohm GmbH, 757 F.2d 729, 732 (5th Cir. 1985), remanded, 107 S.Ct. 3223 (1987); and Graco Inc. v. Kremlin, Inc. & SKM, 101 F.R.D. 503,521 (N.D. 111. 1984) (“Nor does the court agree that the Convention requires deference to a country’s judicial sovereignty over documents, people, and information—if this really is how judicial sovereignty is to be understood—when they are to be produced in this country”).

94 For discussion of this principle, see Von Glahn, G., Law Among Nations 119–21 (5th ed. 1986)Google Scholar; 1 Oppenheim, L., International Law 265–70 (Lauterpacht 5th ed. 1937)Google Scholar; H. Kelsen, supra note 78, at 357; De Vattel, E., Le Droit des Gens 138–43 (1758)Google Scholar(G. Gregory trans. 1964); and Maier, supra note 60, at 582–86.

95 See, e.g., S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (Judgment of Sept. 7), 2 Hudson, M. O., World Ct. Rep. 20, 35 (1935)Google Scholar.

96 According to Kelsen:

That the legal power of the state is limited to its own territory does not mean that no act of the state may legally be carried out outside this state’s territory. The limitation refers in principle to coercive acts in the wider sense of the term, including also the preparation of coercive acts. These acts must not be executed on the territory of another state without the latter’s consent. Without such consent they constitute a violation of international law.

H. Kelsen, supra note 78, at 310–11.

97 See, e.g., Brief for the Government of Switzerland at 3, Aerospatiale, 107 S.Ct. 2542 (1987); and Brief for the Government of the United Kingdom of Great Britain and Northern Ireland at 17, id.

98 See, e.g., Schlosser, P., Der Justizkonflikt mit den Vereinigten Staaten 17–22 (1985)Google Scholar.

99 See, e.g., Stiefel, , “Discovery”–Probleme und Erfahrungen im Deutsch–Amerikanischen Rechtshilfeverkehr, 25 Recht der Internationalen Wirtschaft 509, 514–20 (1979)Google Scholar; and Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] 1 All E.R. 434, 448, [1978] 2 W.L.R. 81, reprinted in 17 ILM 38, 43 (1978).

100 This argument is sometimes based on the private international law concept of ordre public. For discussion of ordre public, see, e.g., Kahn-Freund, O., General Problems of Private International Law 282–85 (1980)Google Scholar; Forde, , Ordre Public, 29 Int’l & Comp. L.Q. 259 (1980)CrossRefGoogle Scholar; and Paulsen & Sovern, , Public Policy and the Conflict of Laws, 56 Colum. L. Rev. 969 (1956)CrossRefGoogle Scholar.

101 See, e.g., Corning Glass Works v. ITT, 20 ILM 1025, 1029 (1981) (Munich Ct. App. 1980).

102 See, e.g., Mann, supra note 79, at 137.

103 For discussion of this development, see Gerber, supra note 3, at 746–47.

104 See generally Yntema, supra note 32; and Maier, , Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 AJIL 280 (1982)CrossRefGoogle Scholar. For judicial treatment of the concept, see, e.g., First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 768 (1972); Laker Airways v. Sabena, Belgium World Airways, 731 F.2d 909, 937 (D.C. Cir. 1984); United States v. First Nat’l City Bank, 396 F.2d 897,902 (2d Cir. 1968); and Ings v. Ferguson, 282 F.2d 149, 151–52 (2d Cir. 1960).

105 According to one commentator: “The weighing of state interests, including the interests of the individual, is thus a process compelled by international customary law. Whether the weighing of state interests standard in and of itself is a rule of international law, is immaterial.” 2 E. Nerep, supra note 54, at 558.

106 For discussion, see Gerber, supra note 77, at 204–06.

107 See supra text accompanying notes 47–48.

108 See generally Maier, supra note 104, at 303–20; and Meessen, The International Law on Taking Evidence from, Not in, a Foreign State: The Anschuetz and Messerschmidt Opinions of the United States Court of Appeals for the Fifth Circuit, Petitioners’ Brief in Response to the Solicitor General’s Brief for the United States, Anschuetz & Co. v. Mississippi River Bridge Auth., 107 S.Ct. 3223, App. 4 (1987) (cert, granted and case remanded in light of Aerospatiale).

109 In recent years, the systemic aspects of the comity doctrine have been developed primarily by Professor Harold Maier. See, e.g., Maier, supra note 104, at 281–85. See also Maier, , Extraterritorial Discovery: Cooperation, Coercion and the Hague Convention, 19 Vand. J. Transnat’l L. 239, 252–55 (1986)Google Scholar.

110 Where a foreign state prohibits compliance with U.S. procedures, it may render those proceedings unfair by making it unreasonable to expect litigants to comply with the court’s order. A foreign state may also physically prevent information—e.g., documents—from leaving its territory and thus render ineffective the procedures of the requesting state. In both cases the actions of the situs state prevent the requesting state from achieving the objective of providing fair and effective procedures.

111 See, e.g., Gerber, , The Extraterritorial Application of the German Antitrust Laws, 77 AJIL 756, 776–79 (1983)Google Scholar.

112 Foreign subjective interests may be relevant to the analysis of extraterritorial discovery, but only in a separate context. See infra text accompanying notes 151–53. On the problems of trying to combine objective and subjective elements in the same analysis, see Maier, supra note 60, at 582–88.

113 National legal systems cannot provide objectivity in the international context, because they do not regulate the relationships among states and because each is subject to alteration by the state in which it operates.

114 For discussion of that issue, see text at notes 76–103 supra.

115 Such uses of international law have long been neglected, perhaps as a result of the positivist focus on the existence or nonexistence of specific norms, as well as on the separation of international law analysis from domestic legal analysis. Recently, attention has begun to be paid to the related issue of the role of “international soft law”—i.e., international principles that do not have the force of norms. See, e.g., Baxter, , International Law in “Her Infinite Variety,” 29 Int’l & Comp. L.Q. 549 (1980)CrossRefGoogle Scholar; and Van Hoof, G., Rethinking the Sources of International Law 179–91 (1983)Google Scholar. See also Weil, , Vers une normativité relative en droit international?, 86 Revue Générale de Droit International Public 5 (1982)Google Scholar, modified, expanded and translated in 73 AJIL 413 (1983).

116 See, e.g., I. Brownlie, supra note 77, at 298–99.

117 See generally Brazil, , The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand. L. Rev. 1295, 1298–1303 (1978)Google Scholar.

118 See generally Hickman v. Taylor, 329 U.S. 495, 507 (1947); Lyell Theatre Corp. v. Loews Corp., 91 F.R.D. 97, 99 (W.D.N.Y. 1981) (“The purpose of discovery has been succinctly stated as 1) to narrow the issues; 2) to obtain evidence for use at trial; and 3) to secure information about the existence of evidence”); and Nutt v. Black Hills Stage Lines, Inc., 452 F.2d 480 (8th Cir. 1971). See also 8 Wright, C. & Miller, A., Federal Practice and Procedure §2001 (1970)Google Scholar.

119 The concept of relevance used in the United States often differs dramatically from similar concepts employed in other legal systems. For discussion, see, e.g., Gerber, supra note 3, at 761–63.

120 This is also the position of the new Restatement. See Restatement (Third), supra note 5, §442 comment a.

121 See, e.g., Schlesinger, R., Baade, H., Damaska, M. & Herzog, P., Comparative Law 425–33 (5th ed. 1987)Google Scholar.

122 For extensive discussion of the differences between the permissible scope of U.S. discovery and acceptable use of coercive power in the United Kingdom, see, e.g., Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] 1 All E.R. 434, [1978] 2 W.L.R. 81, reprinted in 17 ILM 38 (1978). For further discussion, see Gerber, supra note 3, at 757–69.

123 See, e.g., Aerospatiale, 107 S.Ct. at 2556 (emphasis added).

124 See text at notes 77–103 supra.

125 Although the use of international law that I here advocate—namely, as the central informing principle for domestic comity analysis—is in many ways new, it is clearly supported by modern trends in international law scholarship, particularly by the writings of Professors Myres McDougal, Michael Reisman and other associated scholars of the “Yale school of international law.” McDougal and his colleagues have focused attention on the breadth of the international law process and on the interrelatedness of legal and other social processes, and the analysis I am here proposing draws on those insights. See, e.g., McDougal & Reisman, , The Prescribing Function: How International Law Is Made, 6 Yale Stud. World Pub. Ord. 249 (1980)Google Scholar.

126 Aerospatiale, 107 S.Ct. at 2556.

127 Id. at 2555–56.

128 The degree of harm will depend primarily on the scope of the interrogatories and the type of information requested. The broader the range of the interrogatories and the more politically or economically sensitive the information, the greater the degree of interference.

129 Interrogatories may, of course, also raise issues of fairness to the litigant that must be analyzed separately. See text at notes 62–75 supra.

130 Aerospatiale, 107 S.Ct. at 2557.

131 Information may be obtained from foreign territory through use of letters rogatory, but they do not oblige the situs state to provide the requested information and therefore cannot be viewed as a reasonable alternative to U.S. discovery procedures.

132 Aerospatiale, 107 S.Ct. at 2555.

133 Id. at 2563 (Blackmun, J., dissenting).

134 For general discussions of the practical advantages of using the Convention, see, e.g., Augustine, , Obtaining International Judicial Assistance under the Federal Rules and the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters: An Exposition of the Procedures and a Practical Example: In re Westinghouse Uranium Contract Litigation, 10 Ga. J. Int’l & Comp. L. 101 (1980)Google Scholar; Platto, , Taking Evidence Abroad for Use in Civil Cases in the United States—A Practical Guide, 16 Int’l Law. 575 (1982)Google Scholar; and 1969 Delegation Report, supra note 86, at 806–07. For discussions of the practical aspects of using the Convention to obtain information in particular states, see Borel & Boyd, Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States, 13 Int’l Law. 37 (1979); Collins, , Opportunities for and Obstacles to Obtaining Evidence in England for Use in Litigation in the United States, id. at 27 Google Scholar; and Shemanski, , Obtaining Evidence in the Federal Republic of Germany: The Impact of the Hague Evidence Convention on German-American Judicial Cooperation, 17 id. at 465 (1983)Google Scholar.

155 See 1 B. Ristau, supra note 9, at 225–28. See also Note, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters—A Comparison with Federal Rules Procedures, 7 Brooklyn J. Int’l L. 365, 396–97 (1981).

138 Technical problems, e.g., translation, associated with gathering information from foreign sources may arise in using the Convention, but such problems are not necessarily greater or lesser than they would be if discovery procedures were used.

137 See, e.g., 1 B. Ristau, supra note 9, at 229–35.

138 For discussion of the advantages of having a civil law judge do the questioning, see Langbein, supra note 50, at 826–30.

139 See, e.g., Heck, supra note 47, at 234–35; and Shemanski, supra note 134, at 470.

140 Art. 23, Hague Evidence Convention, supra note 9. See generally Note, supra note 52, at 73, 84–87.

141 States that have made reservations include Denmark, Finland, the Federal Republic of Germany, France, Italy, Luxembourg, the Netherlands, Norway, Portugal, Singapore, Sweden and the United Kingdom. 8 Martindale-Hubbell Law Directory 15–21 (1987).

142 According to the reservation of the United Kingdom, for example:

In accordance with Article 23 Her Majesty’s Government declare that the United Kingdom will not execute Letters of Request issued for the purpose of obtaining pre–trial discovery of documents. Her Majesty’s Government further declare that Her Majesty’s Government understand “Letter of Request issued for the purpose of obtaining pre–trial discovery of documents” for the purposes of the foregoing Declaration as including any Letter of Request which requires a person:

a. to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his possession, custody, or power; or

b. to produce any documents other than particular documents specified in the Letter of Request as being documents appearing to the request court to be, or to be likely to be, in his possession, custody or powers.

Declarations and Reservations of the United Kingdom, id. at 19.

For other reservations with similar provisions, see those of France, Luxembourg, the Netherlands, Norway, Portugal, Singapore and Sweden. Id. at 15–21.

143 There are typically few limits on the right to question witnesses about the contents of documents. In Germany, for example, a witness is required to refresh his recollection about the content of documents, if necessary to have them with him, and to answer fully about their contents. See generally Martens, , German Civil Procedure and the Implementation of the Hague Evidence Convention, 1 Int’l Litigation Q. 115, 120 (1985)Google Scholar. For discussion of similar procedures in the United Kingdom, see Levine, J., Discovery: A Comparison Between English and American Civil Discovery Law with Reform Proposals 61–67 (1982)Google Scholar.

144 For information that is not reasonably and conveniently available under the Convention, the analysis is essentially the same as in cases where the situs state is not a party to the Convention.

145 Aerospatiale, 107 S.Ct. at 2555, 2557 (emphasis added).

146 See text at notes 111–15 supra.

147 For discussion, see Oxman, supra note 79, at 148 n.39; and Contemporary Practice of the United States, 73 AJIL 669, 678 (1979).

148 On the use of statements by foreign governments, see Comment, , The Sovereign Compulsion Defense in Antitrust Actions and the Role of Statements by Foreign Governments, 62 Wash. L. Rev. 129, 146–49 (1987)Google Scholar.

149 These references appear to be part of the Court’s response to the previous practice of utilizing the foreign sovereign compulsion defense to analyze blocking legislation. For discussion, see text at notes 156–172 infra.

150 A state’s position may, of course, be relevant to the analysis of state practice under customary international law, because customary international law develops through the responses of states to the actions of other states. A state’s actions, however, are only relevant under certain circumstances and only when related to the actions of other states. For a leading discussion of the formation of customary international law, see, e.g., D’Amato, A., The Concept of Custom in International Law (1971)Google Scholar.

151 See, e.g., United States v. Belmont, 301 U.S. 324, 330 (1937); Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 801–08 (D.C. Cir. 1984), cert, denied, 470 U.S. 1003 (1985); and United States v. First Nat’l City Bank, 396 F.2d 897, 901 (2d Cir. 1968) (“[C]ourts must take care not to impinge upon the prerogatives and responsibilities of the political branches of the government in the extremely sensitive and delicate area of foreign affairs”). See generally Berger, , The Presidential Monopoly of Foreign Relations, 71 Mich. L. Rev. 1 (1972)Google Scholar.

152 For a discussion of government decision making involving these issues, see Maier, , Resolving Extraterritorial Conflicts, or “There and Back Again,” 25 Va. J. Int’l L. 7, 25–33 (1985)Google Scholar.

153 In effect, this will require judges to keep discovery orders as narrow as is consistent with legitimate government purposes.

154 According to one court, “A blocking statute is a law passed by the foreign government imposing a penalty upon a national for complying with a foreign court’s discovery request.” In re Anschuetz & Co., 754 F.2d 602, 614 n.29 (5th Cir. 1985). For discussion of blocking legislation, see, e.g., 1 Atwood, J. & Brewster, K., Antitrust and American Business Abroad §4.17 (1981)Google Scholar. As of 1986, 15 states had enacted legislation designed to counter U.S. efforts to secure the production of documents within their territories. See Restatement (Third), supra note 5, §442 Reporters’ Note 1. For a list of such legislation, see Bibliography—International Discovery, 16 N.Y.U.J. Int’l L. & Pol. 1217, 1223–26 (1984).

155 See, e.g., Note, Foreign Nondisclosure Laws and Domestic Discovery Orders in Antitrust Litigation,

88 YALE LJ. 612 (1979); Note, Limitations on the Federal Judicial Power to Compel Acts Violating Foreign Law, 63 Colum. L. Rev. 1441 (1963); Comment, Ordering Production of Documents from Abroad in Violation of Foreign Law, 31 U. Chi. L. Rev. 791 (1964); and Note, Compelling Production of Documents from Abroad in U.S. Antitrust Litigation: Recent Developments in the Law Concerning the Foreign Illegality Excuse for Non-Production, 14 Va . J . Int’l L. 747 (1974). See also 1985 Special Commission Report, supra note 87, at 1675.

156 For discussion of this defense, see Meal, , Governmental Compulsion as a Defense under United States and European Community Antitrust Laws, 20 Colum. J. Transnat’l L. 51 (1981)Google Scholar; Rosdeitcher, , Foreign Blocking Statutes and U.S. Discovery: A Conflict of National Policies, 16 N.Y.U. J. Int’l L. & Pol. 1061 (1984)Google Scholar; Timberg, , Sovereign Immunity and Act of State Defenses, Traditional Boycotts and Economic Coercion, 55 Tex. L. Rev. 1, 20–27 (1976)Google Scholar; and Note, International Law—Extraterritoriality—Antitrust Law—Development of the Defense of Sovereign Compulsion, 69 Mich. L. Rev. 888(1971).

157 See, e.g., Interamerican Refining Corp. v. Texaco Maracaibo, 307 F.Supp. 1291, 1296–99 (D. Del. 1970) (proof of compulsion by Venezuelan regulatory authorities served as a defense to U.S. antitrust action).

158 See, e.g., Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976); and United States v. Watchmakers of Switz. Information Center, Inc., 1963 Trade Cas. (CCH) 70,600, 77,456 (S.D.N.Y. 1963). For discussion, see Meal, supra note 156, at 77–82.

159 See, e.g., United States v. Vetco, Inc., 691 F.2d 1281 (9th Cir.), cert, denied, 454 U.S. 1098 (1981) (on fairness); United States v. First Nat’l City Bank, 396 F.2d 897, 902 (2d Cir. 1968); and Application of Chase Nat’l Bank, 297 F.2d 611, 613 (2d Cir. 1962) (on comity).

160 The same basic justifications have been used regarding discovery. See, e.g., Compagnie Francaise d’Assurance pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16, 35 (S.D.N.Y. 1984); and Schroeder v. Lufthansa German Airlines, 39 Fed. R. Serv. 2d 211, 212 (N.D. 111. 1983).

161 See, e.g., United States v. First Nat’l Bank of Chicago, 699 F.2d 341, 345 (7th Cir. 1983); United States v. Vetco, Inc., 691 F.2d 1281, 1287–88 (9th Cir.), cert, denied, 454 U.S. 1098 (1981); and FTC v. Compagnie de Saint–Gobain–Pont–a–Mousson, 636 F.2d 1300 (D.C. Cir. 1980).

162 For discussion, see 1 E. Nerep, supra note 54, at 589–603 (1983).

163 On the limitations of the defense, see Timberg, supra note 156, at 23–27; and Comment, supra note 148, at 134–44.

164 See United States v. First Nat’l Bank of Chicago, 699 F.2d 341, 346 (7th Cir. 1983); United States v. Vetco, Inc., 644 F.2d 1324, 1332 (9th Cir. 1981); and Graco Inc. v. Kremlin, Inc. & SKM, 101 F.R.D. 503, 516 (N.D. 111. 1984). See also Timberg, supra note 156, at 23.

165 See, e.g., Societe Internationale pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 211 (1958) (“It is hardly debatable that fear of criminal prosecution constitutes a weighty excuse for nonproduction”). But see Restatement (Third), supra note 5, §441 comment c (which indicates that the foreign sovereign compulsion defense applies where “the requirement or prohibition by the first state is backed by criminal or civil liability or both”).

166 See, e.g., Application of Chase Manhattan Bank, 297 F.2d 611, 613 (2d Cir. 1962); and Remington Products, Inc. v. North Am. Phillips Corp., 107 F.R.D. 642, 643 (D. Conn. 1985).

167 Aerospatiale, 107 S.Ct. at 2556 n.29.

168 One part of the Court’s analysis involved a fundamental misunderstanding of the international jurisdictional issue. According to the Court, “[T]he language of the statute, if taken literally, would appear to represent an extraordinary exercise of legislative jurisdiction by the Republic of France over a United States District Judge . . . “ (emphasis added). Id. The concept of legislative jurisdiction refers, however, to the legal capacity of a state to attach legal consequences to particular conduct. The French blocking statute merely attaches legal consequences to the actions of individuals subject to its jurisdiction. It does not purport to attach legal consequences to the conduct of a U.S. judge.

169 Id.

170 This distinction derives from the new Restatement. See Restatement (Third), supra note 5, §442 Reporters’ Note 5.

171 Existing blocking statutes do not typically meet the interest-specification requirements. See, e.g., Law Concerning the Communication of Documents or Information of an Economic, Commercial, Industrial, Financial or Technical Nature to Aliens, Whether Natural or Juristic Persons, No. 80–538, 1980 J.O. 1799 (France); and Protection of Trading Interests Act, 1980, ch. 11 (United Kingdom). For discussion, see Lowe, , Blocking Extraterritorial Jurisdiction: The British Protection of Trading Interests Act, 1980, 75 AJIL 257 (1981)CrossRefGoogle Scholar; Herzog, , The 1980 French Law on Documents and Information, id. at 382 Google Scholar; and Toms, , The French Response to the Extraterritorial Application of United States Antitrust Laws, 15 Int’l Law. 585 (1981)Google Scholar.

172 See text at notes 62–75 supra.

173 See 8 C. Wright & A. Miller, supra note 118, §2006; and 15 id. §3914 (1976). See also Greyhound Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968).

174 Legal scholarship may aid in the development of structure. Because legal commentators are not subject to the constraints imposed by particular fact situations, they can more easily focus on the development of the principles of analysis. Legal literature may thus be a central source of information about what lower courts are doing, as well as a means of identifying patterns in the resulting data.

175 An additional benefit of the process of prescribing general principles is that it may be combined with policy analysis of the importance of pursuing particular objectives. Congress and/or the Supreme Court can face the full range of issues and ask how U.S. state power should be employed in the context of extraterritorial discovery.

176 For example, foreign governments could provide information on their own interests and procedural systems, and thus make U.S. proceedings less burdensome, less costly and more effective. In addition, foreign states could enter into agreements with the United States about procedures and principles they would apply to U.S. letters of request, and thus allow U.S. courts more effectively to evaluate the consequences of requiring use of the Hague Evidence Convention.

177 For discussion of different interpretations of the Hague Evidence Convention and suggestions for possible improvements, see Gerber, supra note 3, at 779–88.

178 For example, the signatory states could narrow the scope of permissible reservations under Article 23, which would clarify a source of conflict, eliminate confusion and uncertainty, and increase the usefulness of the Convention for American litigators.