Litigation & Dispute Resolution Second Edition Contributing Editor: Michael Madden Published by Global Legal Group CONTENTS Preface Michael Madden, Winston & Strawn London Austria Christian Eder, Christoph Hauser & Alexandra Wolff, Fiebinger Polak Leon Attorneys-at-Law 1 Belgium Koen Van den Broeck & Thales Mertens, Allen & Overy LLP 9 British Virgin Islands Scott Cruickshank & David Harby, Lennox Paton 14 Bulgaria Assen Georgiev, CMS Cameron McKenna LLP – Bulgaria Branch 25 Canada Caroline Abela, Krista Chaytor & Marie-Andrée Vermette, WeirFoulds LLP 35 Cayman Islands Ian Huskisson, Anna Peccarino & Charmaine Richter, Travers Thorp Alberga 44 Cyprus Anastasios A. Antoniou & Louiza Petrou, Anastasios Antoniou LLC 51 England & Wales Michael Madden & Justin McClelland, Winston & Strawn London 59 Estonia Pirkka-Marja Põldvere & Marko Pikani, Aivar Pilv Law Offi ce 75 Finland Markus Kokko & Niki J. Welling, Attorneys at Law Borenius Ltd 86 France Philippe Cavalieros, Winston & Strawn LLP, Paris 92 Germany Dr. Stefan Rützel & Dr. Andrea Leufgen, Gleiss Lutz 99 Guernsey Christian Hay & Michael Adkins, Collas Crill 107 India Siddharth Thacker, Mulla & Mulla & Craigie Blunt & Caroe 114 Indonesia Alexandra Gerungan, Lia Alizia & Christian F. Sinatra, Makarim & Taira S. 123 Ireland Seán Barton & Heather Mahon, McCann FitzGerald 131 Isle of Man Charles Coleman & Chris Webb, Gough Law 142 Italy Ferdinando Emanuele & Milo Molfa, Cleary Gottlieb Steen & Hamilton LLP 149 Jersey Kathryn Purkis & Dan Boxall, Collas Crill 158 Korea Kap-you (Kevin) Kim, John P. Bang & David MacArthur, Bae, Kim & Lee LLC 167 Malaysia Claudia Cheah Pek Yee & Leong Wai Hong, Skrine 176 Mexico Miguel Angel Hernandez-Romo Valencia & Miguel Angel Hernandez-Romo, Bufete Hernández Romo 186 Nigeria Matthias Dawodu, Olaoye Olalere & Debo Ogunmuyiwa, S. P. A. Ajibade & Co 192 Pakistan Ashtar Ausaf Ali, Zoya Chaudary & Nida Aftab, Ashtar Ali & Co. 203 Portugal Nuno Lousa & Manuel Castelo Branco, Linklaters LLP 214 Slovenia Matej Perpar & Sana Koudila, Kirm Perpar Law Firm 222 Spain Álvaro López de Argumedo & Juliana de Ureña, Uría Menéndez 229 Switzerland Balz Gross, Claudio Bazzani & Julian Schwaller, Homburger 237 Turkey Gönenç Gürkaynak & Ayşın Obruk, ELIG, Attorneys at Law 247 Ukraine Andrey Astapov, Oleh Beketov & Oleksiy Zorin, AstapovLawyers International Law Group 255 USA Stephen R. Smerek, Bruce R. Braun & Andrew S. Jick, Winston & Strawn LLP 266 Uruguay Carlos Brandes & Federico Florin, Guyer & Regules 275 Venezuela Jesus Escudero E. & Raúl J. Reyes Revilla, Torres, Plaz & Araujo 283 USA Stephen R. Smerek, Bruce R. Braun & Andrew S. Jick1 Winston & Strawn LLP Effi ciency/integrity The United States is world-renowned for the effi ciency and integrity of its judicial system in resolving criminal and civil litigation. The U.S. court system is split into a federal system and 50 independent state systems. Although there is some overlap between the systems, they are separate. State courts are courts of general jurisdiction − unless pre-empted by federal law, state courts can generally hear any type of claim. Federal courts, on the other hand, can only adjudicate claims if they have “subject matter” jurisdiction (most commonly in cases arising under federal law, or involving citizens of different states). Within both the federal and state judicial systems, there are trial courts, intermediate appellate courts which hear appeals as of right, and supreme courts which hear appeals as a matter of discretion. Various procedural mechanisms exist allowing courts to dispose of cases early. In response to a plaintiff’s complaint, a defendant may fi le a motion to dismiss (or a “demurrer”, as it is called in many state courts) seeking dismissal of the complaint. Courts may dismiss a complaint if its factual allegations, even if they are assumed to be true, are insuffi cient to state a plausible entitlement to relief. Courts have held that bare recitals of the elements of a cause of action are insuffi cient to survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). Even if a case proceeds past a motion to dismiss and through discovery, both sides have the option to move for summary judgment, which allows a court to decide the case in the moving party’s favour as a matter of law, if the non-moving party fails to introduce admissible evidence establishing the existence of a genuine issue of material fact for trial. Additionally, courts can order parties to engage in alternative dispute resolution mechanisms including mediation, settlement conference, or early neutral evaluation. (These mechanisms are described in more detail below.) As the number of civil lawsuits continues to increase, courts’ budgets continue to get cut, and the strain on the court system continues to rise, courts may feel more pressure to utilise these various mechanisms to dispose of cases early and free up their dockets. American law, like English law from which it derives, is founded on principles of natural justice. The U.S. Constitution guarantees that the individual’s right to due process and equal protection of the laws cannot be infringed by governmental action. In general, due process requires that an individual be given notice, and an opportunity to be heard before a fair and impartial tribunal before that person’s rights can be adjudicated. For example, the Federal Rules of Civil Procedure have strict rules regarding service of process, including that summons and a complaint must be personally served on a defendant, where feasible. Litigants have a right to an impartial judge. As the United States Supreme Court has held, if a judge has a direct personal or pecuniary interest in the outcome of a case, the judge must recuse himself or herself from deciding the case. Otherwise, such a confl ict of interest taints the judgment and is grounds for reversal. Equal protection of the laws guarantees that individuals will not be treated discriminatorily based on certain protected characteristics, including but not limited to race, national origin, gender, and wealth. All citizens are entitled to equal access to justice. The independence of the judiciary from political infl uence is also a core tenet of U.S. law, but it is GLI - Litigation & Dispute Resolution Second Edition 266 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Winston & Strawn LLP USA implemented differently in the federal and state judicial systems. Under the Constitution, all federal judges are appointed by the President, confi rmed by a majority vote of the Senate, and serve lifetime terms. Some states have a similar process for judicial appointments. But, in other states, judges are elected, similar to public offi cials. In these states, judges can run (sometimes contentious) campaigns and must stand for re-election after a number of years. Even state supreme court justices must be reelected periodically. Thus, in these states, judges may be subject to pressure to make politically popular rulings in high-profi le cases to avoid polarising the electorate against them. To paint with a broad brush, federal courts tend to demand strict compliance with the rule of law and apply procedure more closely, whereas state courts are more attuned to local tendencies and may give more consideration to equitable principles of justice or fairness. State courts have a higher volume and more diversity in their cases, and are more susceptible to local budgetary issues. Thus, state courts have less time than federal courts to delve into complex legal issues, and are more likely to allow cases to proceed to trial. Federal courts tend to be more likely to dispose of cases on motions to dismiss, or for summary judgment. Enforcement of judgments/awards U.S. courts are authorised by statute to enforce foreign judgments. To enforce a foreign judgment, the party seeking enforcement must fi le a request with the appropriate U.S. court. The party against whom enforcement of a foreign judgment is sought may oppose enforcement. U.S. courts will not enforce a foreign judgment if the opponent can show that the foreign court lacked personal jurisdiction over the defendant or subject matter jurisdiction over the action; that the foreign judicial system did not provide the defendant with adequate procedural protections; or that the judgment was obtained by fraud. In short, U.S. courts will not enforce a judgment if the party resisting enforcement can show that enforcement would violate the party’s right to due process. When considering whether to enforce an injunction issued by a foreign tribunal, U.S. courts consider whether issuance of the injunction would frustrate public policy, would be vexatious or oppressive, or would otherwise run afoul of considerations of equity. Parties seeking to enforce certain kinds of judgments must satisfy additional procedural requirements. To enforce a foreign judgment of forfeiture or confi scation, the party seeking enforcement must submit a request with the U.S. Attorney General (“AG”). The application to the AG must include, among other information, an affi davit or sworn declaration testifying that the foreign nation took steps to ensure that due process of law was afforded. The AG has sole authority whether to certify the request. The AG’s decision is not reviewable by a district court. Upon certifi cation by the AG, the district court will enter the appropriate order compelling the payment of money or forfeiture of property. Moreover, due to the United States’ jealous protection of its citizens’ freedom of speech, a party seeking to enforce a foreign judgment for defamation must demonstrate that the laws of the foreign jurisdiction provide at least as much protection for freedom of speech as do the laws of the United States. In other words, the party seeking enforcement must show that the opposing party would have been found liable for defamation even if sued in a U.S. court. Conversely, a U.S. citizen against whom a foreign judgment based on speech has been entered may seek an order by a district court declaring that the foreign judgment is repugnant to U.S.