Multijurisdictional Litigation: A London Perspective

Tuesday, March 1, 2005 - 01:00

Editor: Mr. Cockshutt, would you tell our readers something about your career?

Cockshutt: I began my career 25 years ago, and for most of that time my focus has been on real estate and commercial litigation and arbitration. My first firm was a small boutique, and in the mid-90s we were looking for a merger partner who could provide expertise in areas we did not offer, as well as access to foreign investors interested in doing business in the UK. Coudert Brothers represented the ideal firm for us.

Editor: Please describe your practice.

Cockshutt: There are two aspects to my practice today. There is property-focused litigation, where I give English law advice and act in English court proceedings on behalf of the firm's clients with UK real estate interests. The other part of my practice is general commercial litigation and arbitration. In the main, this is for multinational clients of Coudert Brothers who have English law issues or problems that need to be addressed in the London courts or in arbitration proceedings here, or elsewhere but under English law.

Editor: Can you give us an overview of Coudert's global litigation practice?

Cockshutt: Coudert Brothers has about 50 partners and counsel engaged in its global litigation practice, with many associates as well. We handle disputes in all of the jurisdictions where we have offices and in a considerable number where we do not. The practice is complex and multinational. To a considerable degree it is also multijurisdictional and, accordingly, involves very close cooperation among different Coudert offices.

Editor: How does the London office fit into the firm-wide litigation practice?

Cockshutt: The London office fits into the firm-wide practice pretty seamlessly. Coudert Brothers is a single partnership, and the various offices collaborate on a regular basis. As far as the London office is concerned, English law is a popular choice of law in international contracts, and London is a popular venue for dispute resolution, even where the substantive law is not English. We recently acted on behalf of a Chinese client in injunction proceedings in London, while our colleagues in New York handled the substantive litigation. I recently coordinated proceedings on behalf of a UK-based client of the firm which involved courts in South Africa, Belgium and Hong Kong. We are hosting our colleagues from other Coudert offices on an ongoing basis, and we send our own people to consult on litigation strategies with their peers in New York, St. Petersburg, Moscow and any number of places regularly.

Editor: And this type of activity is on the increase?

Cockshutt: Yes. As clients become more sophisticated, they tend to look at a variety of jurisdictions to see where the best results might be obtained. Indeed, the natural jurisdiction for a dispute might be one in which no one wishes to litigate.

Editor: Please describe the strategies you employ to bring the matter to a head in the most appropriate forum for your client. And for avoiding forums which may not be favorably disposed to your client.

Cockshutt: What we do varies from case to case. The circumstances of the case often carry their own dynamic as to the choice of forum. If the parties have chosen a particular law to govern any disputes, that is going to have an influence on choice of forum. The availability of witnesses and the location of the evidence are also relevant concerns. Jurisdictions may differ on how a judgment is enforced, and, indeed, some jurisdictions may be fairer and more objective than others - or at least perceived as such - and these are concerns that are certainly going to be addressed during the planning phase of a possible litigation. Procedural differences are also important. If a client has a particular need for a dispute to be handled expeditiously, that need must be factored into the discussion. In the Netherlands, for example, a process exists to resolve a dispute within three or four weeks, while in virtually every other EU jurisdiction that dispute would require several months to be resolved.

Of course, there are at least two sides to every dispute - with each party attempting to get the matter heard in the jurisdiction that appears most favorably disposed to its position - and that means that you can wind up litigating in two or even more jurisdictions at the same time. This can be awkward. It is not always possible to exercise much control over how quickly a particular litigation proceeds, and there is always a risk that a judgment may be rendered in a jurisdiction that is not favorably inclined to a client's position before the judgement of the favorable jurisdiction. It is also vital to take conflict of law principles in different jurisdictions into account: if you commence litigation in Germany, is the Italian court - which you would like to have consider some aspects of the matter - going to take the position that they have been ruled out? All of these matters must be assessed and weighed against one another as part of the strategic planning of a litigation.

Editor: It seems that the overall assessment and organizational phases of the case are extremely important.

Cockshutt: Everything lies in preparation. If the case is well prepared and the strategy has been worked out in advance and is then followed through, by the time you stand up in court you should have a very good idea of where you are.

Editor: Would you tell us about some typical cases?

Cockshutt: In addition to the cases I have mentioned, we have handled matters in London involving arbitration utilizing foreign law, London court disputes among foreign energy enterprises, parallel arbitrations in London and New York and London court proceedings concerning investments in Russia. We have also facilitated proceedings in Greece and Malta parallel to proceedings underway here in London. These are fairly typical, and at any point in time the London office will be engaged in such cases as a matter of course.

Editor: Speaking of Russia, one of our publication's principal themes concerns the progress of the rule of law in places where that concept has not been part of the legal system. Would you share with us your thoughts on how this is proceeding in Russia?

Cockshutt: A few years ago a number of high-ranking Russian judges came to London to talk about the new arbitration court they were in the process of establishing. They were very concerned about being seen to have a fair and transparent system. I wonder whether the justice system has not taken a retrograde step since then. While it may not be too bad to be litigating before the higher courts in Russia, the local courts are susceptible to outside influence and they are, as a general matter, no place for a foreign litigant to be. One problem is that it is often difficult to work out what the law is in Russia, which is very different from a disregard for the rule of law altogether. Concerning the former, it is important to recall that only 15 years ago the country was a communist dictatorship, and that during that brief period it has made remarkable progress in developing a legal framework for business affairs, and particularly international business affairs. However, Russia still has a long way to go. Not surprisingly, the laws that have been written are imperfect and, as a consequence, reflect an unpredictability that can deter foreign investment. As for the rule of law, it is disappointing that there is no clear direction from the top about the rule of law and all that goes along with it - a transparent legal process, fair and objective decisions, an independent judiciary and predictable outcomes. I am afraid that litigation in Russia is going to be risky for foreigners for some time to come.

Editor: Is there any indication that Russia may follow China's lead in choosing to join the international commercial community and having to conform its legal system to international norms?

Cockshutt: Eventually Russia will fully join the international commercial community, but it is difficult to predict when. The distinctions between Russia and China are interesting. Russia has experienced economic and political liberalization in a wholesale manner, while China has maintained much greater control over the process, and political liberalization in China has been minimal. In the short term at least, that carefully controlled liberalization of the economy has benefited China, while the "free form" capitalism that has taken hold in Russia has had dire consequences for the Russian economy and for the average Russian. The social issues that derive from this state of affairs must be addressed. If they are addressed, and properly, a system which people - both Russian and non-Russian - can trust will ensue, and such a system entails the rule of law and an independent judiciary. I hasten to add, the key questions here are if and when .

Editor: You have also been engaged in arbitration. Would you tell us about your practice under the rules of the International Chamber of Commerce Court of Arbitration? And the London Court of International Arbitration? Is there a difference.

Cockshutt: The ICC and the LCIA are two common venues for the resolution of international disputes in contracts. The ICC is more popular than the LCIA. It handles seven to eight hundred arbitrations a year, while the LCIA handles something under a hundred. The ICC does have a unique feature in that an ICC court scrutinizes awards before they are handed down. This ensures consistency, and it is also believed to help in the enforcement of ICC awards in some jurisdictions. It does add to the expense of an ICC arbitration, however.

Editor: How does the firm's international arbitration work connect to its multijurisdictional litigation practice?

Cockshutt: In many cases the practitioners are the same people. In international arbitration help from the litigation side - pre-arbitration injunctions or post-arbitration enforcement of awards - is often necessary. In such situations, it is good practice to have the person conducting the arbitration also oversee the litigation work. The connection, accordingly, is very close.

Editor: An international patent system - in the sense of a uniform system of procedures and evidentiary standards - appears to be emerging at present. Is anything developing along similar lines in the multijurisdictional litigation arena?

Cockshutt: In certain parts of the world there is some convergence, but I do not believe that full convergence is going to occur. In the EU, for example - where you would expect an increase in uniform procedures and standards - the presence of civil law and common law jurisdictions really makes for a divergence. The two systems are too different to readily coalesce. Nevertheless, globalization is contributing to the development of some common features in what might be termed an international commercial law. If certain legal standards do become common to the conduct of business in the global arena, jurisdictional support will evolve to support those standards. That said, I do not see U.S. law, to say nothing of U.S. corporations, willingly taking on some of the rules and statutes which have been promulgated by the EU. All of this makes multijurisdictional litigation a very interesting area in which to practice.

Editor: What about the future?

Cockshutt: Multijurisdictional litigation is a facet of global business, and Coudert Brothers' practice in this area has evolved as globalization evolves. There may be shifts from one region to another or among different business areas, but the demand for multijurisdictional litigation capability is only going to increase. In this development Coudert Brothers is well placed to meet the growing needs of international clients.