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 punitive, multiple damages jury trials in civil cases broader discovery no “loser pays” rule unique causes of action class actions

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

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

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

Attacking foreign forum substantive law inadequate procedures inadequate political/social circumstances

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

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)

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

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

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

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

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

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

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

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