Book Reviews Lowenfeld, Andreas F. International Litigation and the Quest for Reasonableness: Essays in Private International Law. New York: Oxford University Press, 1996. Pp. xxvii, 239. Index. $65. Is it possible to identify a universally acceptable standard of reasonableness in the multifarious world of private international litigation? Andreas Lowenfeld, Professor of International Law at New York University, answers decidedly `yes'. His premise is that it is possible to locate factors leading to a reasonableness standard applicable in certain legal disputes that would be acceptable to courts in both sovereign states and the international community at large. To accomplish this daunting task, Professor Lowenfeld begins by rejecting the rigid rules that maintain a sharp distinction between public and private international law. Rather, he defines international law as `a set of standards to which states adhere or ought to adhere'. (at 80). This book explores the grey areas of international litigation where private and public interests, and sometimes the interests of several states, collide. These are cases that cry out for the application of common sense (or what the Restatement calls `reasonableness') and for the rejection of rigid rules to settle international disputes due to unfair outcomes in the past. By analysing a sometimes daunting number of cases, Lowenfeld covers the demanding territory of jurisdictional disputes (both to prescribe and to adjudicate), choice of law and forum problems, transnational discovery disputes involving Americans and enforcement of foreign judgments. He examines the relation of national law to international agreements in these areas. Case illustrations are adeptly set within their proper historical and legal context so that the reader does not get lost in exploring the jungles of civil procedure, conflicts of laws, contracts, and international treaties, conventions, custom and practices. Each chapter begins with a paradigmatic case, a brief historical overview and explanation of the related field of law, and is then followed by skilful contrasts and comparisons of international law decisions from several countries. The book is intentionally heavy on illustrations and light on principles. In a work which presumes the existence of a reasonableness standard, it is often a struggle to unveil it. The author claims that these converging principles of common sense, or this `shared approach to international law', is not linked to specific substantive values. There are, however, several islands throughout the book where Professor Lowenfeld relieves his reader by grounding the standard of reasonableness. In judicial jurisdictional disputes Lowenfeld states that `the cause of action matters, the alternate fora matter, the reasonable expectations of the parties matter, the layers in a product liability suit between the defendant and the end-product matter'. (at 79). In short, an assessment of all of the relevant factors is necessary for a reasonable decision. Lowenfeld's approach is either to critique the existent jurisprudence by explaining how a case should have been reasonably decided, or to endorse a decision, particularly when it was consistent with the Restatement Third of the Foreign Relations Law (to which the author was associated for close to a decade). As the book progresses, the reader is convinced that the Restatement has insights worthy of further exploration. The book's strength lies in the careful selection of international cases, the structure of each chapter, and the comparisons to the Restatement and international laws interlaced throughout. The reader revisits `old familiars' (cases such as Helicopteros, Shaffer, Interhandel, BSI, and Freddie Laker litigation) as well as lesser known international cases, ranging from German to Japanese courts, thus providing fresh perspectives. The chapters on the Hague Evidence Convention and developments regarding discovery blocking statutes are lucid, with helpful lessons for litigators and legal theoreticians (e.g., the author calls for a focus on the purpose in the search for information rather than a sovereign rights emphasis). In fields of international economy, Lowenfeld successfully asserts that there is greater consensus on substance and techniques of dispute settlement, particularly when courts factor in the practical consequences for individuals, companies and states. Lowenfeld quickly updates the reader's knowledge-base in each area he explores. By grouping cases from several countries, one sees how international doctrine has developed in a particular area. The logical, and sometimes unexpected, response of the reader is to question which state of the law (in Europe, North America, and occasionally Asia) is more reasonable. The problem in this book is that the reasonableness analysis is, in the final score, too mercurial to provide a true standard. Had the author provided at least a brief introduction to his unifying principles early in the book instead of waiting until the end, the abundant details of the numerous (excessive?) case studies could have been more easily assimilated into a theoretical framework. It is thus advisable to read the last chapter as a kind of preface. Lowenfeld's ongoing quest is for less territoriality and broad judgment international law as `reasonable expectations, genuine links, the duty to evaluate and balance, the distinction between overlap in regulation and direct conflict and between potential conflict and actual clash' (at 230). After all the effort the reader has made to reach this point in the argument, the final conclusion seems a bit underwhelming. The question one must ask at the end of this book is whether a more unifying principle for a `shared approach to international law' has emerged? Alas, in the absence of the author providing more in-depth guidance in developing an operational definition for such a principle, this reviewer's answer is a regrettable `no'. In the end, Lowenfeld's principle of reasonableness is less a rejection of absolute values in international law than a plea for sound judgment and informed thinking; he calls for judges to consider factors beyond the balance of abstract sovereign interests. Despite Lowenfeld's sincere call for more cooperation and less unilateral decision-making posing as sovereign principles of law, it seems likely that the `reasonableness-shared interests' exercise will inevitably come down in favour of sovereign interests, without a more refined test of balance. Cait Clarke-Shister Harvard Law School
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