The Substance and Procedure of Transnational Disputes - Chapter 1 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Priv atrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
Merchants and their lawyers rely on rules of law to provide a peaceful means for the resolution of commercial disputes. When plaintiff A sues defendant B, seeking (e.g.) damages for breach of a commercial obligation, the substantive rules of private and commercial law are designed to direct the decision-maker to the right result: whether A should be awarded damages — or not.
In order to arrive at the right result in a commercial dispute, lawyers on the European continent often look to the law of Obligations — the same substantive field which Common lawyers usually subdivide into Contract and Tort.1 In a dispute involving a contractual obligation, for example, lawyers consult the substantive rules which regulate contract formation and validity, the scope of promissory obligation, the remedies available for breach, etc. In a tort-related dispute, perhaps involving a manufacturer’s liability for a defective product, the relevant substantive rules might set the standards for the defendant’s exercise of due care, etc. Having located the relevant rules of substance, the decision-maker will then apply those rules to the concrete facts, so as to reach a decision on the merits (a finding in favor of the party who has the law on his or her side).
1.2 Themes and Cross-Currents in Transnational Litigation