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Transnational Litigation and Arbitration

Transnational Litigation and Arbitration. Choice of forum. forum selection clauses multiple fora w/o clause US perceived as pro-plaintiff. US as forum. “As a moth is drawn to the light, so is a litigant drawn to the United States.” –Lord Denning Why contingent fees

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Transnational Litigation and Arbitration

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  1. Transnational Litigation and Arbitration

  2. Choice of forum • forum selection clauses • multiple fora w/o clause • US perceived as pro-plaintiff

  3. US as forum • “As a moth is drawn to the light, so is a litigant drawn to the United States.” –Lord Denning • Why • contingent fees • punitive, multiple damages • jury trials in civil cases • broader discovery • no “loser pays” rule • unique causes of action • class actions

  4. US as forum—more • Defendants sometimes stipulate to liability if US suit dismissed • But US not always best—e.g., UK for defamation • Expense—for small amounts, plaintiff may be better off at home

  5. Strategies for forum choice • Exclusive forum selection clause • Non-exclusive clauses permit but don’t require a forum • Must have agreement, but clause can cover torts arising from agreement

  6. Forum choice w/o selection clause • First-to-file • can be defendant seeking “negative declaration” • filing status not dispositive (a factor) • Move for forum non conveniens dismissal • mostly US law question • some assessment of foreign law

  7. Attacking foreign forum • substantive law inadequate • procedures inadequate • political/social circumstances

  8. Service • start w/ FRCP • look for treaty (Hague Convention where applicable) • State Department website = best source • letters rogatory/letters of request

  9. Discovery --various scenarios • unilateral application of US rules abroad • request for judicial assistance from foreign authorities—Hague Convention on Taking of Evidence Abroad • letters rogatory (28 USC § 178)

  10. Judgments • no multinational agreement for US • usually pursue separate action for enforcement in foreign juris. • Martindale-Hubbell = great starting point

  11. Researching international litigation • Fairly good resources • US law often applies or discusses • treatises • CLE materials (PLI, ALI-ABA) • State Department • Martindale-Hubbell

  12. International Commercial Arbitration (ICA) • Why favored • distrust of foreign legal system • speed • resolution by expert in business • control of rules • awards easier to enforce • secrecy

  13. Types of arbitration • institutional vs. ad hoc • specialized vs. general purpose institutions • state vs. private parties

  14. Institutions • Big players • ICC • LCIA • AAA • now many others • specialized or general

  15. Enforcement • bilateral investment treaties (BITs) • separate bilateral agreement • New York Convention on Recognition and Enforcement of Foreign Arbitral Awards • limits grounds for attack • most attorneys limit venues to signatory countries

  16. Case Law on UNCITRAL Texts--CLOUT • http://www.uncitral.org/uncitral/en/case_law.html • Digest arranged by article number • Rule statement with citations • Most CLOUT cases are on non-conformity of goods

  17. Researching arbitration • arbitration traditionally confidential • some awards available • Transnational Law Database • Kluwer subscription database • Lexis and Westlaw • ICSID • CLOUT • Gloria Miccioli’s ASIL guide: International Commercial Arbitration

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