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ICLG Litigation & Dispute Resolution 2017 ICLGThe International Comparative Legal Guide to: Litigation & Dispute Resolution 2017 10th Edition A practical cross-border insight into litigation and dispute resolution work Published by Global Legal Group, in association with CDR, with contributions from: ARNECKE SIBETH Rechtsanwälte Steuerberater Lennox Paton Partnerschaftsgesellschaft mbB Loyens & Loeff Luxembourg S.à.r.l. Axioma Estudio Legal Makarim & Taira S. Bae, Kim & Lee LLC McCann FitzGerald Bär & Karrer Ltd. Miller & Chevalier Chartered Blake, Cassels & Graydon LLP Nagashima Ohno & Tsunematsu BROSETA Norburg & Scherp Advokatbyrå AB Clayton Utz Oblin Melichar Cliffe Dekker Hofmeyr Inc Polenak Law Firm Covington & Burling LLP Potter Anderson & Corroon LLP Drinker Biddle & Reath LLP Quevedo & Ponce Gün + Partners Richman Greer, P.A. Gürlich & Co. Rogério Alves & Associados – Sociedade de Advogados, R.L. Hamdan AlShamsi Lawyers & Legal Consultants Sam Okudzeto & Associates Holland & Knight LLP Skadden, Arps, Slate, Meagher & Flom LLP Jackson Walker LLP Souto, Correa, Cesa, Lummertz & Amaral Advogados Kammeradvokaten, Law Firm Poul Schmith Sysouev, Bondar, Khrapoutski SBH Law Office Kentuadei Adefe, Legal Practitioners, Mediators & Arbitrators Waselius & Wist Kobre & Kim Zamfirescu Racoţi & Partners Attorneys at Law Kubas Kos Gałkowski CCommercialD DisputeR Resolution The International Comparative Legal Guide to: Litigation & Dispute Resolution 2017 General Chapter: 1 Cybersecurity – Greg Lascelles & Salah Mattoo, Covington & Burling LLP 1 Country Question and Answer Chapters: 2 Australia Clayton Utz: Colin Loveday & Scott Grahame 6 Contributing Editor Greg Lascelles, Covington & 3 Austria Oblin Melichar: Dr. Klaus Oblin 15 Burling LLP 4 Belarus Sysouev, Bondar, Khrapoutski SBH Law Office: Timour Sysouev & Sales Director Alexandre Khrapoutski 22 Florjan Osmani 5 Brazil Souto, Correa, Cesa, Lummertz & Amaral Advogados: Jorge Cesa & Account Director Ronaldo Kochem 33 Oliver Smith 6 British Virgin Islands Lennox Paton: Scott Cruickshank & Matthew Freeman 40 Sales Support Manager Paul Mochalski 7 Canada Blake, Cassels & Graydon LLP: Ryder Gilliland & Daniel Styler 54 Editor 8 Costa Rica Axioma Estudio Legal: Andre Vargas Siverio 62 Caroline Collingwood 9 Czech Republic Gürlich & Co.: Richard Gürlich & Kamila Janoušková 69 Senior Editors Suzie Levy, Rachel Williams 10 Denmark Kammeradvokaten, Law Firm Poul Schmith: Kasper Mortensen & Henrik Nedergaard Thomsen 76 Chief Operating Officer Dror Levy 11 Ecuador Quevedo & Ponce: Alejandro Ponce Martínez 84 Group Consulting Editor 12 England & Wales Covington & Burling LLP: Greg Lascelles & Salah Mattoo 90 Alan Falach 13 Finland Waselius & Wist: Tanja Jussila 102 Publisher Rory Smith 14 Germany ARNECKE SIBETH Rechtsanwälte Steuerberater Partnerschaftsgesellschaft mbB: Dr. Robert Safran & Ulrich Steppler 110 Published by Global Legal Group Ltd. 15 Ghana Sam Okudzeto & Associates: Esine Okudzeto & Rosemary Owusu 119 59 Tanner Street London SE1 3PL, UK 16 Indonesia Makarim & Taira S.: Alexandra Gerungan & Raditya Anugerah Titus 126 Tel: +44 20 7367 0720 17 Ireland McCann FitzGerald: Seán Barton & Megan Hooper 133 Fax: +44 20 7407 5255 Email: [email protected] 18 Japan Nagashima Ohno & Tsunematsu: Koki Yanagisawa 142 URL: www.glgroup.co.uk 19 Korea Bae, Kim & Lee LLC: Kap-You (Kevin) Kim & John P. Bang 150 GLG Cover Design F&F Studio Design 20 Luxembourg Loyens & Loeff Luxembourg S.à.r.l.: Véronique Hoffeld 157 GLG Cover Image Source 21 Macedonia Polenak Law Firm: Tatjana Popovski Buloski & Aleksandar Dimic 164 iStockphoto 22 Nigeria Kentuadei Adefe, Legal Practitioners, Mediators & Arbitrators: Printed by Kentuadei Adefe & Ottah Nelson 174 Stephens & George Print Group 23 Poland Kubas Kos Gałkowski: Paweł Sikora & Wojciech Wandzel 183 April 2017 24 Portugal Rogério Alves & Associados – Sociedade de Advogados, R.L.: Rogério Alves 191 Copyright © 2017 25 Romania Zamfirescu Racoţi & Partners Attorneys at Law: Cosmin Vasile & Global Legal Group Ltd. All rights reserved Alina Tugearu 199 No photocopying 26 South Africa Cliffe Dekker Hofmeyr Inc: Pieter Conradie & Anja Hofmeyr 207 ISBN 978-1-911367-44-4 27 Spain BROSETA: Patricia Gualde & Alfonso Carrillo 215 ISSN 1755-1889 28 Sweden Norburg & Scherp Advokatbyrå AB: Fredrik Norburg & Erika Finn 225 Strategic Partners 29 Switzerland Bär & Karrer Ltd.: Matthew Reiter & Simone Burlet-Fuchs 232 30 Turkey Gün + Partners: Pelin Baysal & Beril Yayla Sapan 240 31 Turks & Caicos Islands Kobre & Kim: Tim Prudhoe & Alexander Heylin 248 32 United Arab Emirates Hamdan AlShamsi Lawyers & Legal Consultants: Hamdan Alshamsi 255 33 USA – California Skadden, Arps, Slate, Meagher & Flom LLP: Jason D. Russell & Hillary A. Hamilton 262 PEFC Certified 34 USA – Delaware Potter Anderson & Corroon LLP: Jonathan A. Choa & John A. Sensing 270 This product is from sustainably 35 USA – Florida Richman Greer, P.A.: Leora B. Freire & Leslie Arsenault Metz 278 managed forests and controlled sources 36 USA – Georgia Holland & Knight LLP: Laurie Webb Daniel & Harold T. Daniel, Jr. 285 PEFC/16-33-254 www.pefc.org 37 USA – Illinois Drinker Biddle & Reath LLP: Justin O. Kay 294 Continued Overleaf Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM The International Comparative Legal Guide to: Litigation & Dispute Resolution 2017 Country Question and Answer Chapters: 38 USA – New Jersey Drinker Biddle & Reath LLP: Andrew B. Joseph & William A. Wright 303 39 USA – New York Drinker Biddle & Reath LLP: Clay J. Pierce & Marsha J. Indych 310 40 USA – Pennsylvania Drinker Biddle & Reath LLP: Michael W. McTigue Jr. & Jennifer B. Dempsey 319 41 USA – Texas Jackson Walker LLP: Retta A. Miller & Devanshi M. Somaya 326 42 USA – Washington, D.C. Miller & Chevalier Chartered: Brian A. Hill & John C. Eustice 333 EDITORIAL Welcome to the tenth edition of The International Comparative Legal Guide to: Litigation & Dispute Resolution. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations of litigation and dispute resolution. It is divided into two main sections: One general chapter. This chapter provides an overview of Cybersecurity, particularly from a UK perspective. Country question and answer chapters. These provide a broad overview of common issues in litigation and dispute resolution in 41 jurisdictions, with the USA being sub-divided into 10 separate state-specific chapters. All chapters are written by leading litigation and dispute resolution lawyers and industry specialists, and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editor Greg Lascelles of Covington & Burling LLP for his invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.com. Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected] Chapter 34 USA – Delaware Jonathan A. Choa Potter Anderson & Corroon LLP John A. Sensing I. LITIGATION affirmative defences in the answer and certain defences are waived if not made at the time the answer is filed. In lieu of filing an answer, 1 Preliminaries the defendant may file a motion to dismiss. Discovery. Discovery is the opportunity to develop facts. Parties may obtain discovery regarding any matter, not privileged, which 1.1 What type of legal system has your jurisdiction got? is relevant to the subject matter involved in the pending action. Are there any rules that govern civil procedure in your jurisdiction? Discovery can be in the form of depositions upon oral examination or written questions; written interrogatories; production of documents, Delaware is governed by a hybrid of constitutional provisions, electronically stored information, or tangible things or permission to statutes, and case law. Matters pending before each court are subject enter upon land or other property, for inspection and other purposes; to the rules of practice and procedure of that court and other local physical and mental examinations; and requests for admission. court rules and directives. Trial. There is an absolute right to a trial by jury in an action at law (i.e., in the Superior Court), but not in an action in equity (i.e., in the Court of Chancery). In a jury trial, the judge decides questions of 1.2 How is the civil court system in your jurisdiction law, and the jury decides questions of fact. In a non-jury trial, the structured? What are the various levels of appeal and are there any specialist courts? judge decides questions of fact and questions of law. Final Judgment and Appeal. Generally, parties have an absolute Article IV of the Constitution of Delaware establishes a Supreme right of appeal from final judgments to the Delaware Supreme Court, Court of Chancery, Superior Court, Family Court, Court of Court. An appeal is commenced by a notice of appeal. A
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