Proskauer Rose International Practice Guide Proskauer Rose LLP | Proskauer.com
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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Securing U.S. Jurisdiction
Introduction
Basic Jurisdictional Analysis
Specific Areas of Concern for International Defendants
Selecting U.S. Venue
Selecting and Challenging United States Venue in Cross-Border Litigation
International Choice of Forum
Service Outside U.S.
Introduction
Hague Convention on International Service
The Inter-American Service Convention
International Service under the Federal Rules of Civil Procedure
Service Provisions Found In The Foreign Sovereign Immunities Act
Cross-Border Investigations
Overview
Cross-Border Civil and Corporate Internal Investigations
Cross-Border Government Investigations
U.S. Court Abstention in Deference to Non-U.S. Proceedings
Introduction
The Role of Comity
Overview—U.S. Recognition of Non-U.S. Judgments
Choice of Law Issues: Selecting the Appropriate Law
Overview
Whose Choice of Law Rules Apply?
Choice of Law is Decided Issues by Issues: The Principle of “Depeçage”
The Various Choice of Law Rules
Outcomes Under the Choice of Law Analysis, Claim by Claim
Other Issues: Substantive Versus Procedural Laws
How You Decide What Law You Want to Advocate
Deciding Whether to Litigate Choice of Law Issues or Stipulate On Applicable Law
Choice of Law Issues: Proof of Non-U.S. Law in U.S. Courts
Introduction
Notice of Non-U.S. Law
Proving Non-U.S. Law
Suing Non-U.S. Governmental Entities in U.S. Courts
Overview
Why Sue a Foreign State?
Effect of the FSIA
The FSIA Institutes a “Restrictive” Theory of Sovereign Immunity
Timing of Application of FSIA
What is a “Foreign State”?
Subject Matter Jurisdiction
Service of Process
Personal Jurisdiction
Venue
Exceptions to Sovereign Immunity (28 U.S.C. §§ 1605 & 1607)
Jury Trial
Judgments Under the FSIA
Collection Activities and Enforcements of Judgments
The Act of State Doctrine
Anti-Suit Injunctions: Enjoining Non-U.S. Court Proceedings in U.S. Courts
Introduction
Anti-Suit Injunctions: Enjoining U.S. Court Proceedings in Non-U.S. Courts
Introduction
General Considerations
Examples of How Requests for Anti-Suit Injunctions are Being Addressed Abroad
Pre-Empting the Anti-Suit Injunction
Maintaining Status Quo: Provisional Remedies
Introduction
Attachment of Assets
Mareva Injunctions (Global Asset Freeze Orders)
Discovery Abroad for U.S. Proceedings
Introduction
The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters
Additional Means of Discovering Material Abroad
Other Considerations
Discovery in United States in Aid of Proceedings Outside U.S. Including 28 U.S.C. §1782
Introduction
Voluntary Provision of Evidence in the U.S. in Aid of a Non-U.S. Proceeding
Compelling Evidence in the U.S. in Aid of a Non-U.S. Proceeding: Applicable Statutes and Treaties
Diplomatic vs. Private Procedures for Compelling Evidence in the U.S.
Using Diplomatic Channels to Compel Discovery in the U.S.
Using 28 U.S.C. § 1782 to Compel Evidence in the U.S. in Aid of a Non-U.S. Proceeding
Basic Requirements of Section 1782
Factors Considered in Deciding Whether to Grant Discovery Under Section 1782
Procedure For Obtaining Relief Under Section 1782
Text of 28 U.S.C. § 1782
Privilege Issues
How Privilege Issues Typically Arise
Cross-Border Legal Ethics
Overview
What Are the Applicable Ethical Rules?
Effect of the ABA Model Rules in Multi-Jurisdictional Practice
Differing Approaches to Important Issues
Special Rules Governing Transnational Practice Within the European Union
Useful Links for Cross-Border Ethics Research
Useful Law Articles
Trials
Introduction: Special Considerations in the Trial of International Disputes
Admissibility and Authentication of Foreign Documents for Use at Trial
Live Trial Testimony of Foreign Witnesses for Whom English is Not the Native Language
Application of Testimonial Privileges that Arise with Foreign Witnesses
Practice Comments for Cases in Which There is a Jury
Conduct of the Attorneys and Witnesses During the Trial
Recognition & Enforcement of Judgments
Overview of U.S. Law
The Uniform Foreign Country Money Judgments Recognition Act
Enforcing U.S. Judgments Abroad
The Decision to Arbitrate
Perceived Advantages and Disadvantages of International Arbitration
Other ADR Options (Mediation and Conciliation)
International Arbitration Bodies & Rules
Major International Treaties on Arbitration
The Impact of National Laws on International Arbitration
Stages of the Arbitral Process
Pre-Arbitral Procedures: Efforts to Avoid Arbitration
The Early Stages of the Arbitration
Commencement of the Arbitration
Consolidation
Discovery
The Arbitral Hearing
Hearing Procedures
Evidence
Post-hearing Memoranda
The Arbitral Award
Interim and Final Awards
Compelling or Avoiding Arbitration
Introduction: Actions To Enforce Or Challenge Arbitration
Fighting To Get Out Of Arbitration
Fighting To Get Into Arbitration
Other Litigation Ancillary to International Arbitration
Introduction
Federal Court Jurisdiction to Award Relief in International Disputes
Confirmation and Enforcement of an Interim Award
Pre-Award Attachment and Injunctive Relief
Compelling Testimony and Other Evidence
Disputes Over Arbitrators and Applicable Arbitral Rules
Post-Arbitral Award Enforcement and Challenge
Introduction: The Role of International Conventions
Enforcement of Arbitral Awards
Challenging Arbitral Awards
Dispute Resolution Issues in Drafting Agreements in the International Context
Introduction
Types of Issues Related to Cross-Border Transactions
Overview of Significant Issues That Arise in Connection With Negotiating and Completing Cross-Border Transactions Identified for Consideration and Planning
Extraterritorial Application of U.S. Laws; Employment and Securities Laws
Extraterritorial Application of Federal Law
The Presumption Against Extraterritorial Application of U.S. Law
Extraterritoriality & U.S. Employment Law
Extraterritoriality & U.S. Securities Law
U.S. Bankruptcy Court Assistance to Non-U.S. Proceedings
Introduction
Chapter 15 – U.S. Bankruptcy Cases Ancillary to Foreign Proceedigns
Strategies of Creditors to Maximize Their Recoveries
Foreign Corrupt Practices Act
Anti-Bribery Provisions, 15 U.S.C. §§ 78dd-1, et seq.
Accounting Provisions, 15 U.S.C. § 78m.
Enforcement
Best Practices
Primary Areas of Exposure / Risk
Ways Outside Counsel Are Assisting Companies
Current Trend in Enforcement
Privacy Laws
Extraterritorial Applicability of U.S. Privacy Laws
Impact of International Privacy Laws on American Business: An Overview
The European Union ("EU") Data Privacy Directive
Other Significant Privacy Regimes