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Litigation 2017

Introduction

Despite the still-growing influence of international arbitration, transnational litigation is on the rise as well. In a number of situations and circumstances, parties consciously decide against arbitration and favour the resolution of disputes before state courts, especially in countries known or thought to have an efficient and transparent court system. Other disputes, by their nature or owing to other constraints, are rarely subject to arbitration, either generally or at least in certain countries or under certain national laws. The often highly complex areas of patent and trademark validity, anticompetitive and cartel damages issues, securities disputes, and product liability come to mind.

The countries within the European Union, in particular, have observed an increase in transnational litigation as efforts are being made to harmonise more and more areas of law through European Union directives or comparable initiatives. In addition, mutual recognition and enforcement of civil judgments between EU member states has increasingly been facilitated, thus also doing away with the former thicket of divergent and not always compatible national requirements. Furthermore, there have been significant and successful moves to harmonise and unify private international law in many areas of commercial life (including contractual and non-contractual obligations), resulting in a greater foreseeability of the application of national law and less incentive to debate, which national law should apply.

Many practitioners are increasingly faced with the challenge of advising their clients regarding disputes not only in their home jurisdiction, but also at a transnational level. As multinational companies are more frequently faced with similarly situated disputes pending simultaneously or sequentially in multiple jurisdictions, the demands placed on the litigator change correspondingly. This includes not only the substantive demands, but the logistical management and coordination of disputes subject to different procedural standards and calendars on a global level. An example is the discovery by competition authorities all over the world of a global cartel spanning five continents. Those affected by the cartel would usually claim damages in their home jurisdiction, leaving the cartel members exposed to multiple lawsuits in various countries, all revolving around the same or similar questions. Successful coordination of these lawsuits requires knowledge and appreciation of several legal systems, court calendars, procedures and, of course, substantive standards, along with attention to the imponderables of lis pendens, res judicata and collateral estoppel elements.

The deadline for transposing the EU antitrust damages directive into national law, which expired at the end of 2016, marked the most notable development in European litigation. The EU antitrust damages directive’s overall aim is to remove practical obstacles to compensation for victims of infringements of EU competition law and to fine-tune the interplay between private damages actions and public enforcement of the EU competition rules by the European Commission and national competition authorities. Perhaps the most controversial aspect pertains to the possibility of obtaining disclosure of evidence through court orders, a legal concept that was (and still is) largely uncommon in German and continental European civil litigation, which may explain a certain delay in the transposition process in various jurisdictions. Other aspects relate to confidentiality obligations regarding leniency applications and settlement submissions to the EU Commission, certain protections of small and medium-sized companies, limitation periods for claims and the so-called passing-on defence.

It remains to be seen how the new rules will play out in practice. So far Germany – together with the UK and the Netherlands – were among the main forums within the European Union where cartel victims choose to bring their damages actions. 

A transnational litigator’s practical and substantive knowledge of a foreign jurisdiction may enhance the ability to make informed decisions respecting choice of forum, forum shopping and jurisdictional defences.

In view of the above, GAR Know-how aims to provide valuable cutting-edge information on the key questions facing cross-border litigators and to assist in assessing possible advantages and disadvantages of litigating in multiple jurisdictions. It also serves as a valuable resource for those conducting comparative legal research in the international dispute resolution space.

 

Cleary Gottlieb is a pioneer in globalising the legal profession

Since 1946 our lawyers and staff have worked across practices, industries, jurisdictions and continents to provide clients with simple, actionable approaches to their most complex legal and business challenges, whether domestic or international. We support every client relationship with intellectual agility, commercial acumen and a human touch.

We have a proven track record for serving with innovation. We are fluent in the many languages of local and global business. And we have achieved consistent success in multiple jurisdictions.

We have 16 offices in major financial centres around the world, but we operate as a single, integrated global partnership and not a US firm with a network of overseas locations. The firm employs approximately 1,200 lawyers from more than 50 countries.

Cleary received Chambers and Partners’ inaugural International Law Firm of the Year award, recognising our global practice and our pioneering tradition of developing home-grown talent in the different countries where we operate. Recognised as one of the top litigation and arbitration groups in the world, Cleary Gottlieb has helped governments, corporations, financial institutions and individuals in cases that have dominated world business and legal news.

Our lawyers are committed to providing clients with creative and result-oriented litigation and arbitration counsel. This ethos permeates everything we do in the pursuit of innovative, sustainable results.

The firm engagements frequently involve complex legal issues that require novel solutions and cross-border coordination of the firm’s varied resources, allowing us to pair our renowned corporate, regulatory and financial experience with our litigation prowess. Our litigators’ abilities to handle both local matters and multijurisdictional disputes make us equally at home representing clients in virtually any venue worldwide.

We handle litigation and arbitration involving a wide variety of issues, such as securities, derivatives, M&A, sovereign debt, investment treaties, antitrust, bankruptcy, white-collar crime, employment, executive compensation, intellectual property and general commercial disputes. 

In March 2017, Cleary Gottlieb was listed in the GAR30 ranking of the world’s leading international arbitration practices.

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