Allen & Overy has published its Global Litigation Survey, which assesses 10 key indicators of the litigation process in 137 legal systems. The areas rated and evaluated include the treatment of governing law clauses and clauses specifying a jurisdiction for the resolution of disputes, whether a pre-judgment order freezing a party’s assets will be granted, the stringency of local disclosure/discovery rules in litigation, the viability of class actions and the enforcement of foreign court judgments in local courts.
Given the relative stagnation of traditional markets, commercial parties are increasingly seeking out new opportunities in emerging markets, often with relatively undeveloped legal and judicial systems.
This shift in emphasis gives rise to pressures on those commercial parties to ensure their legal due diligence (often involving complex conflict-of-laws issues) is thorough and accurate. A full understanding of legal risk, as well as economic and political risk, is likely to be central to a business’s investment decisions in relatively untested jurisdictions.
The Global Litigation Survey uses the technique (devised by Philip Wood QC [Hon]) of rating legal issues, allowing complex legal data to be synthesised and distilled. According to Allen & Overy, the aim of the ratings system is to promote a quick strategic snapshot of the key aspects of litigation process in each of the 137 jurisdictions covered.
There has been much debate about the opportunities offered by the MINT economies. Investors in MINT countries, or those dealing with MINT domiciled counterparties, may wish to assess litigation risk in such jurisdictions. For example, will Mexican courts generally respect a jurisdiction or choice of court clause in the event a dispute arises? Can you enforce a foreign court judgment in Indonesia? Is a waiver of state immunity effective in Nigeria? Or will the courts uphold absolute immunity? Is Turkey broadly litigation risk free? Or may the courts show reluctance in enforcing a foreign court judgment? Allen & Overy’s survey is intended to address such issues.
The Global Litigation Survey was completed by lawyers in the firm’s litigation department, together with Allen & Overy’s Global Law Intelligence Unit, and includes contributions from law firms in more than 100 jurisdictions across the world.