International Litigation & ADR Update

International Litigation & ADR Update

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

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

We are pleased to present the inaugural issue of Blank Rome’s International Litigation & ADR Update. The primary purpose of this newsletter is to keep our clients and friends abreast of pertinent developments in the law regarding international litigation and alternative dispute resolution. Blank Rome’s international practice continues to grow at a rapid pace and we hope our readers will find the information and insights contained in our newsletter to be useful. We will welcome your comments and ideas!

Foreign Data Privacy Laws — The New Frontier in U.S. Litigation
by W. Cameron Beard

Parties to litigation in the United States, as well as third parties who are subject to the jurisdiction of a U.S. court, must comply with court orders and adhere to the discovery obligations set forth in the Federal Rules of Civil Procedure or corresponding state procedural rules. Parties to a U.S. litigation generally must produce evidence responsive to discovery demands wherever in the world the party maintains such evidence, and a U.S. court may direct even non-parties to produce evidence held by them abroad. Failure to comply with one’s discovery obligations or a court order can lead to sanctions ranging from fines to entry of judgment against the offending party. (View PDF to read the rest of this article)

Sovereign Immunity and Enforcement of Awards in the U.S. Under the New York Convention
by Jeremy J.O. Harwood

The enforcement of arbitration agreements and, more particularly, arbitration awards, against “foreign states” in the United States is of particular interest given the availability of the theories of alter ego, principal/agent, and veil piercing for seeking to hold a foreign state liable for an award against its agent or instrumentality. There is also the significant potential for a foreign state to have a non-immune asset in the U.S. against which to enforce a U.S. judgment recognizing a foreign arbitration award. Indeed, enforcement against the foreign state or its assets in the U.S. may well be the only way to ensure payment of an arbitration award when the foreign state can dissolve its agency or attempts at enforcement in and through the foreign state’s own courts would be futile. Recent developments in the pertinent case law suggest that enforcement in this area may now be somewhat easier in certain circumstances than it has been in the past. (View PDF to read the rest of this article)

Application of Foreign Law in U.S. Federal Courts
by Michael P. Smith

Foreign law may govern the determination of some or all issues in litigation in the United States. Foreign law may apply by virtue of a contractual choice of law provision or a judicial choice of law analysis, or on some other basis. In proceedings before U.S. federal courts, Fed. R. Civ. Proc. 44.1 controls both the manner in which assertions regarding the applicability of foreign law are to be raised and the manner in which foreign law is to be proven. That rule reads as follows: (View PDF to read the rest of this article)

S. 1606 – The Foreign Manufacturers Legal Accountability Act of 2009: Congress’s Attempt to Haul Foreign Manufacturers Before U.S. Courts
by James J. Quinlan

Currently pending before the Senate is a bipartisan Bill, S. 1606, that, if passed, would make it substantially easier for American litigants to sue non-domiciled foreign manufacturers (for the purpose of this article, “foreign manufacturers”) of products sold in the United States. Although consideration of the Bill has thus far taken a backseat to healthcare reform, manufacturers will want to monitor developments going forward, in particular whether S. 1606 emerges from the Senate Finance Committee in 2010. (View PDF to read the rest of this article)

A Boost for Alternative Dispute Resolution in Hong Kong
by Annie Lau

On April 2, 2009, Hong Kong implemented a Civil Justice Reform (“CJR”) that applies to civil proceedings of the High Court and the District Court. The underlying objectives of the CJR are stated in Rule 1 of Order 1A of the Rules of the High Court, Cap. 4A: (a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to civil proceedings before the Court; (b) to ensure that a case is dealt with as expeditiously as is reasonably practicable; (c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings; (d) to ensure fairness between the parties; (e) to facilitate the settlement of disputes; and (f) to ensure that the resources of the Court are distributed fairly. (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.