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International Litigation & ADR Update

International Litigation & ADR Update

To read the full text of the articles in the August 2010 edition of the International Litigation & ADR Update, please download the attached pdf.

From the Editors
by W. Cameron Beard and Jeremy J.O. Harwood

Blank Rome’s international practice continues to grow, just as the firm itself continues to expand both internationally and within the U.S. In this issue we present articles on international themes authored by lawyers from various departments within our firm, as well as articles by lawyers from our international litigation practice group. We would welcome your comments.

Hong Kong—Civil Justice Reform—An Update on Freezing Injunctions
by Nigel Binnersley

As a result of the introduction of the Civil Justice Reform, the Hong Kong Courts have had new statutory powers since April 2009 to grant interim injunctions against parties having assets located in Hong Kong, whether or not the substantive dispute has a nexus with Hong Kong and whether or not the defendant is domiciled or present here. Accordingly, a claimant may now apply to the Courts in Hong Kong for a freezing order / “Mareva” injunction to restrain a party from dealing with or disposing of its assets-such assets usually being monies in bank accounts, goods or real estate. (View PDF to read the rest of this article.)

Internal Revenue Service May Pursue Foreign-Owned Businesses Operating on Outer Continental Shelf
by Joseph T. Gulant and Jennifer L. Bell

In the aftermath of Hurricane Katrina and the Deepwater Horizon incident, an increasing number of foreign vessels and businesses have engaged in construction and repair activity on the U.S. Outer Continental Shelf (“OCS”) in the Gulf of Mexico. These and other foreign-owned businesses already operating on the OCS, however, should take heed. The Internal Revenue Service (“Service”) has fired a shot across the bow of foreign owned businesses in an attempt to eliminate perceived competitive advantages (i.e., lower tax rates) over U.S. owned businesses operating on the OCS. (View PDF to read the rest of this article.)

Money Judgment and Arbitral Award Enforcement in New York: Yes We Can!
by Jeremy J.O. Harwood

New York State’s highest court, the Court of Appeals, recently decided a case of major importance to parties seeking to enforce and collect on money judgments or arbitration awards. (View PDF to read the rest of this article.)

Divorce and Off-Shore Trusts; A Cautionary Tale
by Jay D. Silverstein

One thing a matrimonial lawyer learns early in his or her career is that a motivated spouse will go to great lengths to gain a financial advantage through creative pre-divorce financial planning. One device used in an effort to circumvent required distribution of assets between spouses upon termination of a marriage is a trust funded by one spouse with marital assets. In this regard, “off-shore” trusts and similar devices have become increasingly popular in recent years. However, such structures can be successfully challenged where it is clear that there has been an effort by a spouse to avoid the required distribution of marital assets. (View PDF to read the rest of this article.)

Sovereign Immunity—FG Hemisphere Associates LLC v. Democratic Republic of Congo & Others
by Martin Downey

The issue of sovereign immunity was recently considered by the Hong Kong Court of Appeal in the context of the enforcement of an arbitral award. Judgment was handed down in February 2010. (View PDF to read the rest of this article.)

Obtaining Evidence in the United States for Use in Foreign Private Arbitrations
by W. Cameron Beard

Although it has become easier in recent years to obtain evidence in the U.S. for use in foreign court proceedings, the same cannot be said with respect to evidence for use in foreign private arbitrations. There is as yet no uniform rule in this area-much may depend on where in the United States such evidence is located. (View PDF to read the rest of this article.)

Notice: The purpose of this newsletter is to identify select developments that may be of interest to readers. The information contained herein is abridged and summarized from various sources, the accuracy and completeness of which cannot be assured. The Advisory should not be construed as legal advice or opinion, and is not a substitute for the advice of counsel. Additional information on Blank Rome may be found on our website www.blankrome.com.