Table of Contents

1	Securing U.S. Jurisdiction

I	Introduction

II	Basic Jurisdictional Analysis

III	Specific Areas of Concern for International Defendants

2	Selecting U.S. Venue

I	Selecting and Challenging United States Venue in Cross-Border Litigation

II	International Choice of Forum

3	Service Outside U.S.

I	Introduction

II	Hague Convention on International Service

III	The Inter-American Service Convention

IV	International Service under the Federal Rules of Civil Procedure

V	Service Provisions Found In The Foreign Sovereign Immunities Act

4	Cross-Border Investigations

I

Overview

II	Cross-Border Civil and Corporate Internal Investigations

III	Cross-Border Government Investigations

5	U.S. Court Abstention in Deference to Non-U.S. Proceedings

I	Introduction

6	The Role of Comity

I	Overview—U.S. Recognition of Non-U.S. Judgments

7	Choice of Law Issues: Selecting the Appropriate Law

I

Overview

II	Whose Choice of Law Rules Apply?

III	Choice of Law is Decided Issues by Issues: The Principle of “Depeçage”

IV	The Various Choice of Law Rules

V	Outcomes Under the Choice of Law Analysis, Claim by Claim

VI	Other Issues: Substantive Versus Procedural Laws

VII	How You Decide What Law You Want to Advocate

VIII	Deciding Whether to Litigate Choice of Law Issues or Stipulate On Applicable Law

8	Choice of Law Issues: Proof of Non-U.S. Law in U.S. Courts

I	Introduction

II	Notice of Non-U.S. Law

III	Proving Non-U.S. Law

9	Suing Non-U.S. Governmental Entities in U.S. Courts

I

Overview

II	Why Sue a Foreign State?

III	Effect of the FSIA

IV	The FSIA Institutes a “Restrictive” Theory of Sovereign Immunity

V	Timing of Application of FSIA

VI	What is a “Foreign State”?

VII	Subject Matter Jurisdiction

VIII	Service of Process

IX	Personal Jurisdiction

X

Venue

XI	Exceptions to Sovereign Immunity (28 U.S.C. §§ 1605 & 1607)

XII	Jury Trial

XIII	Judgments Under the FSIA

XIV	Collection Activities and Enforcements of Judgments

XV	The Act of State Doctrine

10	Anti-Suit Injunctions: Enjoining Non-U.S. Court Proceedings in U.S. Courts

I	Introduction

11	Anti-Suit Injunctions: Enjoining U.S. Court Proceedings in Non-U.S. Courts

I	Introduction

II	General Considerations

III	Examples of How Requests for Anti-Suit Injunctions are Being Addressed Abroad

IV	Pre-Empting the Anti-Suit Injunction

12	Maintaining Status Quo: Provisional Remedies

I	Introduction

II	Attachment of Assets

III	Mareva Injunctions (Global Asset Freeze Orders)

13	Discovery Abroad for U.S. Proceedings

I	Introduction

II	The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters

III	Additional Means of Discovering Material Abroad

IV	Other Considerations

14	Discovery in United States in Aid of Proceedings Outside U.S. Including 28 U.S.C. §1782

I	Introduction

II	Voluntary Provision of Evidence in the U.S. in Aid of a Non-U.S. Proceeding

III	Compelling Evidence in the U.S. in Aid of a Non-U.S. Proceeding: Applicable Statutes and Treaties

IV	Diplomatic vs. Private Procedures for Compelling Evidence in the U.S.

V	Using Diplomatic Channels to Compel Discovery in the U.S.

VI	Using 28 U.S.C. § 1782 to Compel Evidence in the U.S. in Aid of a Non-U.S. Proceeding

VII	Basic Requirements of Section 1782

VIII	Factors Considered in Deciding Whether to Grant Discovery Under Section 1782

IX	Procedure For Obtaining Relief Under Section 1782

X	Text of 28 U.S.C. § 1782

15	Privilege Issues

I	How Privilege Issues Typically Arise

16	Cross-Border Legal Ethics

I

Overview

II	What Are the Applicable Ethical Rules?

III	Effect of the ABA Model Rules in Multi-Jurisdictional Practice

IV	Differing Approaches to Important Issues

V	Special Rules Governing Transnational Practice Within the European Union

VI	Useful Links for Cross-Border Ethics Research

VII	Useful Law Articles

17

Trials

I	Introduction: Special Considerations in the Trial of International Disputes

II	Admissibility and Authentication of Foreign Documents for Use at Trial

III	Live Trial Testimony of Foreign Witnesses for Whom English is Not the Native Language

IV	Application of Testimonial Privileges that Arise with Foreign Witnesses

V	Practice Comments for Cases in Which There is a Jury

VI	Conduct of the Attorneys and Witnesses During the Trial

18	Recognition & Enforcement of Judgments

I	Overview of U.S. Law

II	The Uniform Foreign Country Money Judgments Recognition Act

III	Enforcing U.S. Judgments Abroad

19	The Decision to Arbitrate

I	Perceived Advantages and Disadvantages of International Arbitration

II	Other ADR Options (Mediation and Conciliation)

III	International Arbitration Bodies & Rules

IV	Major International Treaties on Arbitration

V	The Impact of National Laws on International Arbitration

20	Stages of the Arbitral Process

I	Pre-Arbitral Procedures: Efforts to Avoid Arbitration

II	The Early Stages of the Arbitration

III	Commencement of the Arbitration

IV	Consolidation

V

Discovery

VI	The Arbitral Hearing

VII	Hearing Procedures

VIII

Evidence

IX	Post-hearing Memoranda

X	The Arbitral Award

XI	Interim and Final Awards

21	Compelling or Avoiding Arbitration

I	Introduction: Actions To Enforce Or Challenge Arbitration

II	Fighting To Get Out Of Arbitration

III	Fighting To Get Into Arbitration

22	Other Litigation Ancillary to International Arbitration

I	Introduction

II	Federal Court Jurisdiction to Award Relief in International Disputes

III	Confirmation and Enforcement of an Interim Award

IV	Pre-Award Attachment and Injunctive Relief

V	Compelling Testimony and Other Evidence

VI	Disputes Over Arbitrators and Applicable Arbitral Rules

23	Post-Arbitral Award Enforcement and Challenge

I	Introduction: The Role of International Conventions

II	Enforcement of Arbitral Awards

III	Challenging Arbitral Awards

24	Dispute Resolution Issues in Drafting Agreements in the International Context

I	Introduction

II	Types of Issues Related to Cross-Border Transactions

III	Overview of Significant Issues That Arise in Connection With Negotiating and Completing Cross-Border Transactions Identified for Consideration and Planning

25	Extraterritorial Application of U.S. Laws; Employment and Securities Laws

I	Extraterritorial Application of Federal Law

II	The Presumption Against Extraterritorial Application of U.S. Law

III	Extraterritoriality & U.S. Employment Law

IV	Extraterritoriality & U.S. Securities Law

26	U.S. Bankruptcy Court Assistance to Non-U.S. Proceedings

I	Introduction

II	Chapter 15 – U.S. Bankruptcy Cases Ancillary to Foreign Proceedigns

III	Strategies of Creditors to Maximize Their Recoveries

27	Foreign Corrupt Practices Act

I	Anti-Bribery Provisions, 15 U.S.C. §§ 78dd-1, et seq.

II	Accounting Provisions, 15 U.S.C. § 78m.

III	Enforcement

IV	Best Practices

V	Primary Areas of Exposure / Risk

VI	Ways Outside Counsel Are Assisting Companies

VII	Current Trend in Enforcement

28	Privacy Laws

I	Extraterritorial Applicability of U.S. Privacy Laws

II	Impact of International Privacy Laws on American Business: An Overview

III	The European Union ("EU") Data Privacy Directive

IV	Other Significant Privacy Regimes