Click here to download the Complex commercial litigation 2020 report, published by Getting the Deal Through.

Jurisdictions covered

The following 16 jurisdictions are covered in this report:

Austria; British Virgin Islands; Cyprus; Denmark; England and Wales; Gibraltar; India; Ireland; Japan; Netherlands; Nigeria; Romania; Switzerland; Turkey; United Arab Emirates; United States.

Questions

The set of questions relating to the topic of complex commercial litigation and answered by the guide for each jurisdiction covered include:

Background

• • How common is commercial litigation as a method of resolving high-value, complex disputes?
• • Please describe the culture and “market” for litigation. Do international parties regularly participate in disputes in the court system in your jurisdiction, or do the disputes typically tend to be regional?
• • What is the legal framework governing commercial litigation? Is your jurisdiction subject to civil code or common law? What practical implications does this have?

Bringing a claim-initial considerations

• • What key issues should a party consider before bringing a claim?
• • How is jurisdiction established?
• • Res judicata: is preclusion applicable, and if so, how?
• • In what circumstances will the courts apply foreign laws to determine issues being litigated before them?
• • What initial steps should a claimant consider to ensure that any eventual judgment is satisfied? Can a defendant take steps to make themselves “judgment proof”?
• • When is it appropriate for a claimant to consider obtaining an order freezing a defendant’s assets? What are the preconditions and other considerations?
• • Are there requirements for pre-action conduct and what are the consequences of non-compliance?
• • What other forms of interim relief can be sought?
• • Does the court require or expect parties to engage in ADR at the pre-action stage or later in the case? What are the consequences of failing to engage in ADR at these stages?
• • Are there different considerations for claims against natural persons as opposed to corporations?
• • Are any of the considerations different for class actions, multiparty or group litigations?
• • What restrictions are there on third parties funding the costs of the litigation or agreeing to pay adverse costs?

The claim

• • How are claims launched? How are the written pleadings structured, and how long do they tend to be? What documents need to be appended to the pleading?
• • How are claims served on foreign parties?
• • What are the key causes of action that typically arise in commercial litigation?
• • Under what circumstances can amendments to claims be made?
• • What remedies are available to a claimant in your jurisdiction?
• • What damages are recoverable?

Responding to the claim

• • What steps are open to a defendant in the early part of a case?
• • How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?
• • Under what circumstances may a defendant change a defence at a later stage in the proceedings?
• • How can a defendant establish the passing on or sharing of liability?
• • How can a defendant avoid trial?
• • What happens in the case of a no-show or if no defence is offered?
• • Can a defendant claim security for costs? If so, what form of security can be provided?

Progressing the case

• • What is the typical sequence of procedural steps in commercial litigation in this country?
• • Can additional parties be brought into a case after commencement?
• • Can proceedings be consolidated or split?
• • How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?
• • How does a court decide what judgments, remedies and orders it will issue?
• • How is witness, documentary and expert evidence dealt with?
• • How does the court deal with large volumes of commercial or technical evidence?
• • Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?
• • How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?
• • How long do the proceedings typically last, and in what circumstances can they be expedited?
• • What other steps can a party take during proceedings to achieve tactical advantage in a case?

Trial

• • How is the trial conducted for common types of commercial litigation? How long does the trial typically last?
• • Are jury trials the norm, and can they be denied?
• • How is confidentiality treated? Can all evidence be publicly accessed? How can sensitive commercial information be protected? Is public access granted to the courts?
• • How is media interest dealt with? Is the media ever ordered not to report on certain information?
• • How are monetary claims valued and proved?

Post-trial

• • Are there any particularly interesting features or tactical advantages of litigating in this country not addressed in any of the previous questions?
• • Are there any particular disadvantages of litigating in your jurisdiction, whether procedural or pragmatic?
• • Are there special considerations to be taken into account when defending a claim in your jurisdiction, that have not been addressed in the previous questions?