PrintBy international or cross-border business litigation and arbitration, we encompass in three types of controversies:
- disputes involving companies, property (real, intangible, intellectual), or business practices affecting different countries;
- disputes implicating the laws, legal practices, or regulatory regimes of different jurisdictions; and/or
- disputes where different possible venues are available to pursue, defend, and resolve the disputes.
In our own practices and cases, we have learned to use international or cross-border litigation or regulatory investigations or proceedings to present clients with strategic choices. Opportunities arise and must be seized, whether our clients are prosecuting or defending cases and whether the adversary is a private or, as is becoming more common, a single or multiplicity of regulatory or enforcement bodies. The opportunities include creating business structures, controls, and legal instruments that enable clients to avoid altogether the problems posed by international litigation or regulatory matters.
The crucial issues in cross-border commercial or regulatory disputes do not merely concern questions of where to sue or defend a case or what law to rely on. Pursuing strategic alternatives available specifically because a controversy is cross-border in nature can affect, influence, and possibly determine a vast and varied array of other controversy-determining issues as well – for example, the type of disclosure or discovery available; whether privileges or immunities will apply and be symmetrical between plaintiff or claimant and the defendant/respondent; what the very evidence will be that is available to the trier of fact and, indeed, who the trier of fact will be; whether legal or contractual limitations can be enforced or avoided; whether a client can insist on or avoid an investigation, can insist on or avoid the presence of witnesses or documents, can enforce or avoid enforcement of an award or judgment – indeed, in our experience, whether the controversy can be resolved efficiently and successfully, or not.
It is the purpose of Proskauer on International Litigation and Dispute Resolution to address these and related areas in a comprehensive, but above all practical, way. We believe we have the credentials to do that. We say that not merely as beneficiaries of the legacy of such legendary international litigation practitioners as Joseph Proskauer himself, who was often retained to litigate what we now call public cross-border disputes involving issues such as the return of U.S. assets confiscated in the Russian Revolution, the recovery of U.S. bank losses incurred in Cuban sugar investments following World War I, and the sale of Saudi Arabian oil to European countries under the Marshall Plan following World War II. The world and the private, commercial controversies that we deal with in our practices and treat in this Guide are too complex and fast-changing for anyone to rest long on the past. Rather, our claim to participate in this dialogue flows from our current experiences. Two in particular are worth mentioning:
First, in this work, we use the methodological approach toward the challenges and opportunities of international litigation and regulatory controversies that we deliver to our clients every day in the context of purely domestic proceedings. The Proskauer Rose Litigation and Dispute Resolution Department is a cohesive team of trial lawyers and other arbitration and litigation specialists of unsurpassed talent and dedication. It is our mission overall to partner with our clients and one another. Through such partnering, we solve our clients’ most serious controversies with efficiency, pragmatic thoroughness, and ingenuity. We are a world-class litigation powerhouse – nearly 60% of the more than 750 lawyers in our international firm – with 10 offices in numerous countries -- represent clients in litigation or regulatory proceedings worldwide. In the present work, and with notable help from our corporate, transactional, and restructuring colleagues in Proskauer’s International Practice Group, we employ the same type of pragmatic, real-time approach to solving controversies that touch more than one jurisdiction.
Second, the nearly 30 authors of the chapters in the Guide have spent decades litigating matters touching countless jurisdictions and venues around the world and, for some of the world’s largest or most complex businesses, have participated in the development of the seminal legal concepts shaping this area at all levels within the U.S. (including the Supreme Court and the leading Circuit Courts of Appeal), in France, where we have had an office for nearly 30 years, in many other countries, and in the international court and arbitration and regulatory systems as well. What was novel to us decades ago, which we addressed without the benefit of a guide, treatise, or handbook, has become a commonplace in our practice today. Yet new challenges and opportunities are presenting themselves all the time, and we have the breadth of experience and depth of talent to address them effectively.
In the 28 Chapters of this Guide, we will summarize the law concerning the significant issues arising in international litigations or regulatory proceedings, international arbitrations, and in a variety of specific substantive areas. But we go further, and deeper, and, we hope, provide more helpful perspectives and approaches. Based on our collective experience in international controversies spanning the better part of half a century, we endeavor to make this a practical guide, an essential reference for solving real problems in real time. We endeavor here to share with our clients, colleagues, and other readers some of the armamentarium available in this specialized area to pursue, defend against, and resolve international controversies effectively, efficiently, and successfully, taking advantage of (or avoiding) the leverage created by the international or inter-jurisdictional nature of a controversy. That is what we do for our clients daily. As important, with extensive practical experience with these tools, clients can maximize the chances of preventing and avoiding falling into traps in their business or commercial dealings going forward.
With due acknowledgment to the extraordinary number of talented professionals who have made this work a reality, and with due disclaimer, we trust you will find Proskauer on International Litigation and Dispute Resolution to be a useful tool in your own efforts to confront, resolve, and even avoid the issues that arise when a commercial or regulatory dispute jumps – or should jump – national borders.