- In this section, we do not intend to write a complete treatise on all the tactical, strategic, and evidentiary issues that go into the planning and conduct of a trial, but rather, to focus on those aspects that arise most frequently in international disputes in the United States Courts, primarily in the Federal Courts.
- The trial of international disputes involves special considerations beyond the issues that are the subject of the litigation. The parties often will need to introduce foreign records and testimony and will need to translate documents and use interpreters to introduce the evidence at trial. Translation of a witnesses’ testimony may double the time for the examination of a witness.
- The substantive issues may be governed by foreign law, and the parties may need to prove foreign law to the judge who may have to charge the jury regarding foreign laws.
- Disputes involving multinational litigants often raise the issue of witness unavailability, and therefore the introduction of deposition testimony instead of live testimony at the trial.
- International disputes other than those against a foreign state may be decided by juries in an international dispute. This raises issues of bias, prejudice and “home court advantage” that must be considered in planning for the trial. A 2002 Survey by a major jury consulting firm found that “57.6% [of jurors interviewed] say that they would favor an American-owned company versus a foreign-owned company in a business dispute, with only 1.7% saying that they would favor the foreign company.”
- For all these reasons, the trial of international disputes in United States courts is often longer, more complex and more expensive than the typical commercial business litigation. Accordingly, these cases require careful preparation and strategic decisions starting at the earliest stages of the litigation and throughout the preparations for trial, that take into account the somewhat unique aspects that arise when the dispute involves litigants and witnesses of different countries.
Ch. 17 Trials
I. Introduction: Special Considerations in the Trial of International Disputes
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