Thinking of litigating abroad?

I don’t do much  litigation in my practice, let alone international litigation, but I did do some research while still in law school for a professor who was very interested in international arbitration.  And so it’s still just as interesting now as a practicing attorney, if just as inapplicable as it was to a 2L.  But still interesting.

As more business crosses international borders, and if you believe Thomas Friedman then you know it is only a matter of time before your business has some cross-border transactions, and any time the deal goes south, proverbially speaking, there will be the need for you to evaluate whether litigation is a viable remedy for resolving the problem.

When you do get to that point, check into the International Business Law Advisor for some tips, including this short post on how to evaluate litigating abroad.  Just a few quick points from their article:

  • The “choice-of-law clause” can be a factor but mostly has no bearing on the choice of court. A court can apply foreign laws, although it might need expert evidence.
  • It is important that any judgment obtained in one court is “recognized” by the courts of the place where you might want to enforce the judgment – which will be where the defendant has any assets. In the U.S., many states have enacted variations of the Uniform Enforcement of Foreign Judgments Act.
  • If your judgment was the subject of an arbitration, the judgment is enforceable in any country that has signed on to the New York Convention on the Recognition and Enforcement of  Foreign Arbitral Awards (over 142 countries are parties to the Convention).

And last, but perhaps the most important–if you have a choice, litigate in U.S. courts:

  • The quality of courts and local lawyers is also important. There are courts, even within the EU, that have the reputation of being susceptible to corruption and most developing-world courts are best avoided. In the U.S, the integrity and quality of the courts are generally first rate.
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