Legal Transplants v. Transnational Law: Lessons from the Israeli Adoption of Public Factors in Forum Non Conveniens

תקציר

Legal transplants are an artifact of globalization, in that legal knowledge transcends borders and enables lawmakers, regulators, judges and lawyers to discover and import legal solutions for local problems in the global market of legal ideas. However, it is hasty to assert that legal transplants necessarily promote the globalization or the trans-nationalization of law. This paper argues some legal transplants should be viewed more suspiciously than others, particularly in a world in which it is essential to enhance international comity and forge a network of globally committed national courts that will further effective transnational litigation. Legal transplants regarding procedural law that bear on foreign plaintiffs’ access to local judicial systems should raise concern. This paper will demonstrate the dangers of jurisdiction transplants by analyzing the haphazard path in which Israeli courts adopted and implemented the U.S. mechanism of weighing public factors in the application of the forum non conveniens doctrine.