International litigation is a topic that is more important than ever to be well versed in.
We live in an unprecedented time. Everything about our lives — from business to social contacts to entertainment — is becoming increasingly globalized.
For litigators, this means that your practice will undoubtedly face international disputes as your clients (and their products and services) reach across borders like never before. Are you ready to start swimming in the unfamiliar waters of international litigation?
If not, you’re in luck. This post is designed to serve as a foundational overview for those who have not yet managed an international case but are looking to dip their toes into this increasingly relevant field.
Understanding international litigation
International litigation encompasses any legal dispute that crosses national borders or involves parties from multiple countries. Unlike domestic litigation, which operates within known federal or state systems, international cases require practitioners to confront completely different legal systems, each with its own procedures, practices, and laws.
One of the most basic issues in international litigation is the type of legal system involved. Globally, the two predominant systems are common law and civil law.
Common law, used in countries like the United States and the United Kingdom, relies heavily on precedent and the rulings of prior courts to guide decisions. Civil law, conversely, is prevalent in much of Europe and Latin America, and is based on comprehensive statutes and codes.
For litigators, understanding these differences is non-negotiable. Not only do these systems dictate procedural norms, but they also influence the strategies you’ll unleash as your cases progress.
For example, the role of a judge in a common law system is often more passive compared to their more investigative role in civil law jurisdictions.
But that’s just the beginning…
Understanding international treaties and their impact
If you’re going to practice international litigation, you’ll want to start by exploring the world of international treaties. Treaties such as the Hague Convention and the Vienna Convention provide frameworks that help standardize and streamline processes across different legal systems.
The Hague Convention, for instance, has several treaties under its umbrella that address various aspects of international legal cooperation and litigation. One of the most pivotal is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
In short, it simplifies the process of serving documents across borders and helps you make sure that a summons or judicial document reaches the defendant in another country. Similarly, the Vienna Convention on the Law of Treaties plays a fundamental role in the interpretation and application of treaties themselves.
Understanding these treaties and how they apply can be a dizzying task. Nonetheless, they ensure that despite the diversity of legal frameworks around the world, there is a level of predictability and uniformity in how legal proceedings will be conducted.
Preparing for international litigation
Despite the vast differences, international litigation demands one essential skill that litigators use at home — preparation. Just like in your local practice, initial preparation can significantly influence the outcome and flow of your international case.
Here are some of the primary ways you can prepare for global litigation challenges:
Understanding jurisdictional challenges
Jurisdiction in international litigation can be complex, involving multiple countries that might have the authority to hear a case.
Determining where legal proceedings should be initiated involves considering factors such as the locations of the parties, where the contractual obligations were to be performed, or where the legal breach occurred.
Sometimes, the choice of jurisdiction is influenced by the perceived advantages of one legal system over another, such as faster proceedings or more favorable local laws.
Cultural and legal framework
Litigation professionals must be aware of cultural differences that could affect litigation strategies. For example, negotiation styles, the importance of saving face, or the role of written versus oral agreements can vary significantly across cultures and can impact both the proceedings and the resolution of a case.
Building a competent international legal team
It would be foolish to think you could just hop into a foreign court system without some local guidance.
Your international team should include both local counsel and international law experts who can navigate the finer points of the applicable international and local laws at issue.
Among other things, these foreign legal professionals can provide invaluable insights into the local legal culture and practices, which will save you the time and headache of figuring everything out yourself.
Don’t be tempted to hire one at the exclusion of the other; however, Local counsel can ensure that all local legal requirements are met and can maneuver through the local judicial system more effectively.
International law experts, on the other hand, can help align the broader legal strategies with international norms and client objectives.
Navigating legal principles and procedures
Once that groundwork is laid, it’s time for you to build your own understanding of the legal principles and procedures. This stage is about dealing with the actual mechanics of international litigation.
Just as with your domestic cases, general legal principles may include issues around contract law, torts, and statutory obligations. All of these are likely to differ significantly from one jurisdiction to another. Don’t assume that just because you’re a contracts expert in the United States, you’re a contracts expert anywhere else.
Procedural differences in international courts can also be stark. For example, discovery processes in the United States are much more extensive compared to those in most civil law countries, where the gathering of evidence might be more limited and controlled by the presiding judge.
Additionally, managing documentation and evidence across borders presents its own set of challenges. Ensuring that documents are properly translated, authenticated, and accepted in a foreign court requires careful planning. Techniques for managing these challenges include:
- Utilizing the provisions of international treaties like the Hague Evidence Convention.
- Relying on tech tools for secure and efficient document management.
- Engaging professional services for accurate translations and legal document handling.
Overcoming challenges
As you can see, international litigation is fraught with challenges that can complicate even the most straightforward cases. Key among these are language barriers and cultural differences, which can significantly impact every phase of litigation, from negotiation and communication to the interpretation of agreements and the enforcement of legal judgments.
Language barriers can often be the most immediate obstacle. Ensuring accurate and legal-appropriate translations of documents is paramount, as is the need for skilled interpreters during negotiations and court proceedings.
This is not just about literal translation but also about understanding legal terms and concepts that may not have direct equivalents in another language.
As mentioned above, understanding the cultural differences at play is a significant challenge when entering into a global practice. Different cultures have different perceptions of the law, authority, individual rights, and obligations.
These differences can affect communication styles, conflict resolution strategies, and even the willingness of parties to litigate versus settle. Recognizing and respecting these cultural peculiarities can lead to more effective interactions and better outcomes.
Navigating time zone differences sounds simple but is actually quite complex within global disputes. When faced with a deadline, for example, does that deadline occur in your time zone or your opponent’s?
Effective use of collaborative tools and flexible scheduling can help ensure that all parties, regardless of their geographic location, are properly served and kept abreast of case developments in a timely manner.
Essential resources for international litigation
Obviously, we can only skim the surface of international litigation in a post such as this. Consequently, we thought it would be a good idea to provide you with access to some of the more comprehensive resources on the subject.
Legal databases
Legal databases and international law resources are fundamental. Databases like LexisNexis and Westlaw International provide extensive legal materials that cover multiple jurisdictions. Additionally, specialized databases focused on international law, such as the International Legal Materials or Kluwer Arbitration, can be invaluable for finding precedents and legal analyses.
Networks
Networks of international lawyers offer an invaluable platform for collaboration and advice. Organizations such as the International Bar Association or the American Society of International Law can connect litigation professionals with experienced practitioners around the world and can also facilitate referrals, shared experiences, and expert advice.
Professional development
Training programs and professional development opportunities allow lawyers to stay updated on the latest in international litigation practices. Programs offered by the Hague Academy of International Law, for instance, provide in-depth training on international civil and commercial litigation.
Other resources
For those looking to deepen their understanding of international litigation, a variety of resources are available. Recommended readings include book collections like the Transnational Litigation Guide and websites like the United Nations Commission on International Trade Law. Professional forums and continuing legal education seminars also provide platforms for learning and discussion.
Conclusion
There’s a lot to digest here, but given the increasingly global nature of business (and business disputes), it’s a good investment of your time and resources to learn the ins and outs of international litigation. That way, when the time comes, you’ll be ready to answer the call. Good luck!
