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A Guide to Commercial Cross-border Litigation
Litigation, as most people are aware, is the process of resolving a contentious dispute through a court of law. It is generally the last resort if a civil case cannot be settled by alternative dispute resolution (ADR). It is especially desired by the disputing parties as it generally takes more time and money to conclude. Therefore, a method of alternative dispute resolution (ADR) such as mediation or arbitration is preferred. If litigation is inevitable, it can be challenging to navigate if the matter involves more than one jurisdiction in a cross-border matter.
Here, we discuss how commercial disputes can be resolved through litigation, how litigation works in another country and how you can manage attendance in court in another country. We will also discuss the negative aspects of cross-border litigation, and why alternative dispute resolution may be the best choice.
Click on the links below to jump to that section:
Discover more about the various commercial disputes that can be resolved outside of court
Find out how you can resolve matters in a foreign country
Here’s what you need to know before attending court in another country
Find out the most common reasons people avoid court wherever possible
Here’s why alternative dispute resolution is preferred to court
Here’s how our qualified solicitors can assist you
What commercial disputes can be resolved through litigation?
Litigation is only ever suggested if the matter cannot be settled by negotiation between the parties. A common commercial dispute that often arises is when a contract that was created between you and another party has been breached; for example, if goods or services are not delivered on time, or payment terms are not met. Such breaches may form a justifiable reason to start litigation proceedings.
Also if an organisation believes their intellectual property has been compromised, such as a brand logo, product name or design, they may choose to take the perceived offending party to court. By seeking out expert legal advice, you can attempt to settle matters through ADR as opposed to immediately resorting to litigation.
Litigation in another jurisdiction: how does this work?
If you become involved in a cross-border commercial dispute with another party and there is no jurisdiction clause in the contract, you need to act with speed if the matter is going to court. You should immediately attempt to litigate the matter under the jurisdiction of England & Wales. If there is a jurisdiction clause in a contract, then both parties will be aware of the jurisdiction that was decided upon at the onset of the contract and the matter will be decided under the jurisdiction chosen.
If no jurisdiction is specified, the courts will determine where the case should be heard based on the most relevant jurisdiction in relation to the dispute.
How legal matters are handled in a cross-border dispute depends on applicable law and jurisdiction. If you wish to discuss your case with an expert litigation lawyer, contact us today.
Attending court in another country
If you have been summoned to court in another country, there are steps you can take to reduce the cost and stress that can accompany it. Collecting evidence and ensuring that your argument is valid will assist to conclude the issue as quickly and cost-effectively as possible. You should also attempt to resolve matters between yourself and the other party before attending court.
If there is no option but to attend court you will need the services of an international lawyer.
The disadvantage of cross-border litigation
There are many disadvantages to court proceedings; one is the strain it places on the relationship between the claimant and the defendant. Litigation between trading partners almost always signals the end of their business relationship. Alternative dispute resolution allows the parties to discuss matters between each other in a private setting and enables them to control the outcome.
Another disadvantage is the length of time it can take to finalise a dispute through the courts. Disputes often take months before a case is heard.
To find out more about the benefits of mediation, please read our previous guide here.
Why is alternative dispute resolution (ADR) the best choice for my commercial dispute?
If you are involved in a cross-border commercial dispute, ADR can help both parties work together to come to a solution that benefits them both without the need for a court hearing. Whichever method of ADR you choose, all negotiations are held in private, as opposed to a court of law where members of the public, including journalists and rivals, can attend and hear the details of the dispute. Other than arbitration, the parties are not obliged to accept a decision of a third party as is the case in a court of law where the judge’s decision is final and legally binding.
It is strongly advised that the guidance and advice of an international litigation lawyer is sought to assist during the negotiations to ensure complete clarity.
There is a far greater degree of flexibility in mediation and arbitration. The parties involved can set their own time frames and avoid the court backlog. Mediation can be arranged at any time that all parties are free.
How Giambrone and Partners can help
Giambrone and Partners have years of experience in dealing with commercial cross-border litigation and disputes. Our lawyers are qualified in various jurisdictions; many of them are multi-jurisdictional, enabling them to help you navigate the legal processes in the country where your dispute has occurred.
For more information, book a consultation to discuss your international dispute, please get in touch with us today.
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Types of commercial cross border disputes and options for resolving them