Strategem | Cross-Border Disputes
Few Pointers of Strategy for Cross Border Litigation/Arbitration :-
1. Dispute Resolution Clause- Decide the forum from an Enforcement perspective.
2. Injunctions - In cross-border Arbitration (e.g. venue - England, Singapore) while filing a claim for injunction, you have to give an undertaking to pay damages if the injunction is vacated or you lose the suit. This acts as a dual-edged sword and therefore should be taken into consideration while filing for any claims seeking injunction.
3. Disclosure - In domestic disputes, you cannot ask for documents from your opponent (e.g. Email records of the Company you had been the Shareholder of). In Cross Border Disputes, you can ask for documents via discovery at two stages. For instance, pre-action discovery allows to claimant to base his claims from the documents received from the Claimant. On the other hand, the Defendant employs recourses in order to not hand over the documents that are asked for disclosure. As a matter of strategy, you can ask for documents that the party does not posses to get a favourable outcome.
4. Evidence - While the cross-examination is just about to be commence, by virtue of a parallel proceeding, the witness receives a summon to appear in another dispute filed against (legitimate/ illegitimate) them. This has the effect of unnerving the witness at the crucial stage.
5. Choice of Law - Get the parties to admit in client correspondence that the law governing the substantive Arbitration would be lex arbiti (law of the arbitration agreement) which goes unrebutted in subsequent correspondance.
Let me know your thoughts about these tactical pointers. :)
