International Practice: Litigation and Dispute Resolution
Introduction and Overview. We are pleased to share this discussion and analysis of timely topics and trends under the general rubric of international practice – that is, controversies or disputes constituting or arising out of litigations, arbitrations, and regulatory enforcement and investigations of companies, laws, or regulations affecting more than one international sovereign power.
The need for this e-book, and the International Practice domain of which it is a part, can perhaps be demonstrated by considering the difficulty that exists in naming exactly what area of law and practice we are dealing with. There is no separate body of jurisprudence called "international litigation", "international dispute resolution", or "international controversies". Indeed, these phrases typically conjure up cross-border disputes or what, in the middle of the last century, was commonly known as "public" international law. We do not treat those topics here; they are treated well elsewhere.
But despite the difficulty in naming the discipline or practice area, there is no difficulty in discerning it – or in finding crucially important challenges and opportunities that are unique to disputes that are international in the way we mean it here.
At bottom, these challenges and opportunities arise because commerce in today's world increasingly ignores traditional geographic borders. Our tag-line, The World's Gone Global! tries to capture that reality. The means of production, as well as the marketing and distribution of goods and services, routinely CRISS-cross the globe. Fueled by the Internet, we are collectively rendering all but moribund historical national and state boundaries for commercial or business purposes.
These realities have prompted a meteoric increase in both the sheer number but also the complexity of international, transnational, or cross-border disputes. This is especially true given overlapping, diverging, or converging regulatory regimes in countries where global companies do business.
By international, transnational, or cross-border business controversies, we encompass three types of controversies:
- disputes involving companies, property (real, intangible, intellectual), or business practices affecting different countries;
- disputes implicating the laws, legal practices, or regulatory regimes of different jurisdictions; and/or
- disputes where different possible venues are available to pursue, defend, and resolve the disputes.
Several decades of practice in this area has demonstrated to us that international controversies present not only challenges but often unique opportunities, for both the client and practitioner. These must be seized, whether our clients are prosecuting or defending cases or whether the adversary is a private or, as is becoming more common, a single or multiplicity of regulatory or enforcement bodies.
There are solutions to the puzzle presented by international disputes. Sometimes these include creating business structures, controls, and legal instruments that enable clients to avoid altogether the problems posed by international litigation or regulatory matters or to succeed in prosecuting or defending them when presented. Sometimes solutions include finding a way out of complex and conflicting regulatory regimes. Sometimes solutions arise from knowing the specific issues relating to seizing of jurisdiction, winning the battle of venue, forum, or remedy, how to protect privileges and obtain the evidence needed to win or settle favorably, and other very practical issues.
We have found that the crucial issues in cross-border commercial or regulatory disputes do not merely concern questions of where to sue or defend a case or what law to rely on, etc. Pursuing strategic alternatives available specifically because a controversy is cross-border in nature can affect, influence, and often determine a vast and varied array of other controversy-determining issues as well – for example, the type of disclosure or discovery available; whether privileges or immunities will apply and be symmetrical between plaintiff or claimant and the defendant/respondent; what the very evidence will be that is available to the trier of fact and, indeed, who the trier of fact will be; whether legal or contractual limitations can be enforced or avoided; whether a client can insist on or avoid an investigation, can insist on or avoid the presence of witnesses or documents, can enforce or avoid enforcement of an award or judgment – indeed, in our experience, whether the controversy can be resolved efficiently and successfully, or not.
The e-book is arranged in four major units, treating a total of 10 key topics. We did not opt for a comprehensive analysis of every aspect of every subject that arises in an international dispute. The topics are arranged as follows:
2. Choice of Law/Choice of Forum
3. The Special Case of Sovereign Entities
Ordering the Resolution of International Controversies
4. Provisional Remedies, Injunctions, Abstention
6. Simultaneous Regulatory or Enforcement Proceedings
Adjudicating International Controversies
7. Proof: Pre-Trial Discovery and Evidentiary Privileges in International Controversies
10. Post-Adjudication Enforcement, Recognition, Challenges
We would enjoy hearing from you. With the Team and Blog associated with this e-book, we hope readers will receive not only timely updates of trends and even tendencies in this dynamically moving area; as important, we hope you will feel free to react and respond so that the resulting dialogue will assist writer, reader, and the development of this area of legal practice generally.
With thanks to the others who have made this work a reality, and with due disclaimer, we trust you will find International Practice: Topics and Trends to be a useful tool in your own efforts to confront, resolve, and avoid the issues that arise when a commercial or regulatory dispute impacts multiple national jurisdictions.
Louis M. Solomon