Litigation & Dispute Resolution 2018 Seventh Edition Contributing Editor: Michael Madden GLOBAL LEGAL INSIGHTS – LITIGATION & DISPUTE RESOLUTION 2018, SEVENTH EDITION Contributing Editor Michael Madden Production Editor Andrew Schofi eld Senior Editors Suzie Levy Caroline Collingwood Group Consulting Editor Alan Falach Publisher Rory Smith We are extremely grateful for all contributions to this edition. Special thanks are reserved for Michael Madden for all his assistance. Published by Global Legal Group Ltd. 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 207 367 0720 / URL: www.glgroup.co.uk Copyright © 2018 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-912509-29-4 ISSN 2049-3126 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 qualifi ed professional when dealing with specifi c situations. The information contained herein is accurate as of the date of publication. Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY August 2018 CONTENTS Preface Michael Madden, Winston & Strawn London LLP Australia Colin Loveday, Richard Abraham & Sheena McKie, Clayton Utz 1 Bermuda David Kessaram, Matthew Watson & Sam Riihiluoma, Cox Hallett Wilkinson Limited 14 Brazil Eduardo Perazza & Ariana Anfe, Machado, Meyer, Sendacz & Opice Advogados 25 British Virgin Islands Scott Cruickshank & Matthew Freeman, Lennox Paton 32 Cayman Islands Ian Huskisson, Anna Peccarino & Neil McLarnon, Travers Thorp Alberga 47 China Cui Qiang & Li Qishi, Commerce & Finance Law Offi ces 55 England & Wales Michael Madden & Justin McClelland, Winston & Strawn London LLP 62 Finland Markus Kokko & Niki J. Welling, Borenius Attorneys Ltd 96 France Olivier Laude, Victor Champey & Olivier Guillaud, Laude Esquier Champey 105 Germany Dr Thomas Nebel & Thomas Weimann, Herbert Smith Freehills Germany LLP 121 Greece Spyros G. Alexandris & Eirini Panopoulou, Bahas, Gramatidis & Partners 131 India Rishi Agrawala & Vishnu Tallapragada, Agarwal Law Associates 141 Italy Micael Montinari & Filippo Frigerio, Portolano Cavallo 149 Japan Shinya Tago, Takuya Uenishi & Landry Guesdon, Iwata Godo 160 Liechtenstein Thomas Nigg, Eva-Maria Rhomberg & Domenik Vogt, GASSER PARTNER Attorneys at Law 173 Malaysia Datuk Peter S.K. Yap, Amin, Yap & Co. Mark Ho, Chellam Wong Ooi Huey Miin, Raja, Darryl & Loh 183 Mexico Miguel Angel Hernandez-Romo Valencia & Miguel Angel Hernandez Romo, Foley Gardere Arena 195 Romania Silvia Uscov, USCOV | Attorneys at law 202 Russia Dr Viktor Gerbutov & Artem Kara, Noerr 209 Singapore Chia Boon Teck & Wong Kai Yun, Chia Wong LLP 217 Spain Pedro Moreira & Isabel Álvarez, SCA LEGAL, SLP 227 Switzerland Balz Gross, Claudio Bazzani & Julian Schwaller, Homburger 239 Taiwan Hung Ou Yang, Hung-Wen Chiu & Jia-Jun Fang, Brain Trust International Law Firm 254 Turkey Orçun Çetinkaya & Burak Baydar, Moroğlu Arseven 261 Turks & Caicos Tim Prudhoe, Prudhoe Caribbean 268 Islands Ukraine Oleksandr Zavadetskyi, Zavadetskyi Advocates Bureau 278 UAE Hamdan Al Shamsi, Hamdan AlShamsi Lawyers and Legal Consultants 288 USA Rodney G. Strickland, Jr., Matthew R. Reed & Anthony J Weibell, Wilson Sonsini Goodrich & Rosati, P.C. 299 PREFACE very year we are bombarded with commentaries on the legal profession with law fi rms being rated often, in terms of Eprofi tability or by reference to client, competitor or other surveys. While these commentaries provide certain perspectives on how we as lawyers may be performing they cannot, and to be fair they generally do not purport to, provide the entire picture of the work undertaken by lawyers around the world and the vital role the profession plays in supporting one of the central pillars of any democratic constitution. The structure of a nation’s constitution and the degree to which the powers comprised within the executive, judicial and legislative branches are separate and independent is a useful indicator of the approach taken by that constitution to values such as political and individual freedoms and human rights – although essential to that measure is the extent to which the members of each branch, particularly the legal and judicial, strive to maintain their independence and to play a fundamental role in preserving a true separation of powers. It can be all too easy for today’s “high fl ying” commercial lawyers, sitting in their modern, air-conditioned offi ces, working on transactions or disputes worth $ billions, and strategising on securing the next profi table instruction to maintain their fi rm’s status in the directories, to forget that they are part of that profession and subject to the duties and responsibilities this creates. However, the legal systems in which they operate are the same systems that are responsible for preserving essential human rights and for keeping the other sources of power within the constitution in check. It is as much in their interest, as it is for lawyers more directly involved in cases where human rights and liberties are being threatened, to ensure that their legal system operates with integrity and effi ciently, and that access to justice is readily available and preserved for the benefi t of all and not just those with the right political connections or the fi nances to afford it. In preparing this year’s edition of Global Legal Insights – Litigation and Dispute Resolution we sought comments from contributors on the costs and funding of litigation. The rapid growth of the litigation funding industry, following the relaxation of medieval principles such as Maintenance and Champerty, refl ects a need within society to provide better access to justice. However, the provision of such services needs to be monitored to ensure that users still obtain independent advice and benefi t from the proceeds of any successful claim. Next year we will consider in further detail how different legal systems operate to preserve their independence and promote diversity within the administration of justice. I do hope that you enjoy reading (or at least dipping in and out of) the book and I would like once again to pay my thanks to all those who have contributed and worked very hard to secure its publication. As always, I welcome any feedback that you may have on this Global Legal Insight. Michael Madden Winston & Strawn London LLP Australia Colin Loveday, Richard Abraham & Sheena McKie Clayton Utz Effi ciency of process Australia has a federal system of government, in which powers are divided between a central government and individual States. Each State and Territory is a separate jurisdiction and has its own hierarchy of courts. The High Court of Australia unites the various court hierarchies. It is the ultimate court of appeal for all Australian courts. State and Territory Supreme Courts hear monetary claims above a certain threshold (typically, from A$750,000), or claims for equitable relief. Each State Supreme Court has an appellate division, or Court of Appeal, which hears appeals from the Supreme Court and lower courts in the State system. Most of the States have two further levels of inferior courts. In addition, some States have established specialist courts of limited statutory jurisdiction, designed to hear specifi c categories of disputes. The jurisdiction of the Federal Court of Australia (Federal Court) covers almost all civil matters arising under Australian federal law. All civil matters are heard by a judge alone. Appeals from a single judge are heard by the Full Federal Court – a court constituted by three Federal Court judges. The Federal Circuit Court hears less complex disputes. There are also a range of tribunals created under Commonwealth law. For example, the Administrative Appeals Tribunal. In the Federal and several State jurisdictions, legislation has been enacted to impose pre- litigation requirements on persons involved in civil disputes. While generally a failure to comply with pre-litigation requirements will not invalidate the proceedings, the court may take this into consideration when awarding costs associated with the proceedings. In the Federal Court, the parties to a dispute are required to fi le a “genuine steps statement”, which outlines the steps taken to attempt to resolve the dispute. Proceedings are commenced by way of originating process. Once service has been effected and the defendant entered an appearance, the parties exchange pleadings (such as a statement of claim and defence), which serve to defi ne the issues in dispute. Once the parties have closed their pleadings, the parties will give discovery (or “disclosure”). Subpoenas may be used to obtain documents from third parties. In most jurisdictions, discovery and inspection takes place before the parties serve the evidence on which they intend to rely at trial. Each party will then prepare its evidence for use at the fi nal hearing, often utilising written witness statements or affi davits in place of oral evidence in chief – there is no deposition procedure in Australia. Where relevant, parties may also engage expert witnesses to give GLI - Litigation & Dispute Resolution 2018, 7th Edition 1 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Clayton Utz Australia evidence concerning fi elds of specialised knowledge. Most Australian jurisdictions have Codes of Conduct with which expert witnesses must comply. Occasionally, the court will direct both parties’ experts to prepare a joint report, setting out their areas of agreement and disagreement. Throughout the proceedings, the parties will attend court at regular intervals for case management. At directions hearings, orders will be made to govern the conduct of the matter. Once all the parties’ evidence has been prepared and all the interlocutory disputes resolved, the case proceeds to a fi nal hearing. Most civil cases are heard by a judge sitting alone, who will usually deliver a written judgment.