International Litigation.Get on with the neighbours

In an era of increasing multi-state transactions and consequential litigation, it is time to increase awareness of other legal systems and codes.

The massive expansion of the international marketplace during the 1980s was epitomised by the rapid growth of a number of apparently powerful multi-national conglomerates. This was followed in the early 1990s by the dramatic collapse of some of these organisations, whose management and financial inadequacies showed them up to be little more than paper tigers.

The cross-border insolvency issues that arose from the unwinding of these groups have been topics for discussion with the swelling number of litigators and banking lawyers whose work has largely focused on the long running after-effects of corporate failures world-wide.

The Maxwell and BCCI sagas in particular have brought in their wake substantial cross-border disputes. These in turn have been conducted against a background of enquiries by regulators and legislators, and criminal prosecutions or related proceedings in a variety of jurisdictions.

The manifold problems facing lawyers involved in these claims are exacerbated by a lack of understanding of the style of conducting litigation in other jurisdictions.

There is a tendency for some lawyers to believe in the superiority of their own system and be defensive of it to the detriment of the case.

I remember a lawyer from a small European country in proceedings in his jurisdiction complaining that fellow UK and US lawyers were acting in an almost colonial fashion by seeking to prevent him filing a process which they felt might be harmful to civil proceedings in their jurisdictions.

In turn, I have seen English QCs discounting what were clearly sensible tactical proposals from US attorneys who were acting for the same client, in favour of the professional interest in arguing a novel point of English law. The idea that a US attorney might know what needed to be achieved in the English action better than the client's QC tested sensitivities and national pride.

The management of such multi-state litigation demands a close team effort, given the need to develop a coherent and integrated strategy in conjunction with the client's representatives and specialists in all the jurisdictions concerned.

Increased awareness of how one's fellow lawyers approach the conduct of litigation in other jurisdictions is crucial.

An example of this seems to be the varying approaches adopted towards pleadings. In the UK, where pleadings play a central role in the proceedings, the structure and contents of such documents are very tightly controlled.

But, this is not always the case in other jurisdictions where drafting is often freer than might be acceptable to an English High Court judge.

However, just as the client might well benefit from the non-UK pleading being tightened up, so I recall a lengthy and convoluted pleading in one action being significantly improved by detailed drafting recommendations from US lawyers. In the end, after some 15 drafts, you could barely see that it was a combined effort.

In that instance, however, we put up initial resistance to some of their ideas because of the way in which they were conveyed – we were all protective of our own procedures.

Good management of such litigation demands an ability by the lawyers in one jurisdiction to respect their colleagues on other jurisdictions and to treat them with tact and care, otherwise they will retire behind their own cultural barriers. That in turn will only deflect from the need for close integration. Legal nationalism needs to be subordinated to the interests of the client.