1 / 17

Transnational Litigation and Arbitration

Explore forum selection, international litigation, and arbitration strategies including exclusive and non-exclusive clauses, attacking foreign forums, service, discovery, judgments, researching resources, and types of arbitration.

dbullock
Download Presentation

Transnational Litigation and Arbitration

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  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

More Related