Issue: Free Trade Agreements
Free trade agreements (FTAs) permit referral of commercial disputes litigated before state and federal courts to international arbitration panels. These panels are free to determine whether federal and state law, regulations, court procedures, and judicial decisions meet international law principles.
State court leaders urge the US Trade Representative (USTR) and Congress to only approve trade agreements provisions that recognize and support the sovereignty of state judicial systems and the enforcement and finality of state court judgments and to clarify that under existing trade agreements, foreign investors shall enjoy no greater substantive and procedural rights than US citizens and businesses.
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Issue: General Agreement on Trade Services
The GATS was agreed to by the US as part of the 1994 agreement establishing the World Trade Organization (WTO). Legal services are covered by the GATS agreement and there are ongoing negotiations to “liberalize” licensing requirements for foreign lawyers to practice law in the U.S. When a state supreme court approves a USTR request to “list” its rule (e.g., on foreign legal consultants) as part of a GATS offer, its authority to modify the rule in the future may be limited.
No formal position
Issue: Hague Convention on Choice of Courts
A Convention on Choice of Courts was negotiated as part of the ongoing Hague Conference on Private International Law. The Convention applies only to provisions in written agreements between businesses that expressly choose a court to hear any disputes arising under that agreement. If ratified by the US, the agreement could require a state court to accept jurisdiction over a dispute even though the only connection to the state is the agreement on a forum by the parties and to enforce judgments by a foreign court chosen by the parties to hear their dispute. It could also limit the application of the forum non conveniens doctrine in these cases.
No formal position