Welcome to the first blog post from the Foreign Service Law Office (“FSLO”). If you have already found the blog, then you know that FSLO is a law firm dedicated to helping navigate the intricacies of international civil litigation. I hope that this blog will become a forum for discussion for international litigation as well as all aspects of international law.
On May 14 through 16, 2014, the International Bar Association held its annual International Litigation conference in exquisite Montreal, Quebec. Montreal is a wonderful city, and was the perfect setting for the springtime gathering of lawyers from all over the world. Social events included an opening cocktail party at the neo-classical Court of Appeals building and an evening at Cirque du Soleil. Next year’s conference is set for Paris, another great host city.
The conference was titled “Crossing the Great Divide,” and focused on questions of discovery and disclosure in international litigation, something of a specialty at FSLO. The first session presented an overview of discovery regimes in different countries. The panelists included Angelo Anglani, of NCTM Studio Legal Associato, Rome; Luming Chen, of Jun He Law Offices, Shanghai; Anneliese day, of 4 New Square, London; Thomas Hall; Chadbourne & Parke, New York; and Thera van Swaay de Marchi, of Pinheiro Neto Advogados, Sao Paolo.
The presentations provided a good review of how discovery works, and sometimes doesn’t work, around the world. Principles of discovery can be seen as falling along certain sets of dichotomies. First, there is the wide open and freewheeling discovery typical of American litigation, compared to the more restrained discovery used in other legal systems. Second, there is the attorney-driven discovery used in common law jurisdictions – America and England, for example, as opposed to the court-driven discovery of civil code countries, represented on the panel by Brazil and Italy. Yet a third dichotomy exists within the common law world. Whereas, in the United States discovery depends on requests of different kinds – to produce, to admit or deny, to answer interrogatories – in England, there is a duty upon a party and counsel to “disclose” information, without a request. This duty means that counsel must accurately assess the opponent’s case, and disclose, that is, produce, information, documents, and the like, relevant to the case.
Aside from the overview provided by the panelists, a few specific issues stood out. Mr. Chen’s overview of the Chinese legal system left one with the impression that China really doesn’t want international litigation in its courts. There is no discovery to speak of. The courts are not independent in Western sense. Indeed, they seem to be overtly political, “telephone courts” as it were. It is entirely possible to believe that Mr. Chen was sent to deliver exactly that message – stay out of China’s courts.
Mr. Hall mentioned in passing Federal Rule of Civil Procedure 1782, which allows a party in matter before a foreign tribunal to petition a U.S. Federal Court directly for discovery. I would have liked to hear more about how 1782 articulates with the Hague Evidence Convention, and the advantages and disadvantages of the two methods. Perhaps, this topic will be taken up at length in a future post.
By the end of the first session, it was becoming clear that sensitivity to the different discovery schemes used by different jurisdictions is an essential part of both pursuing cross-border discovery and managing one’s expectations when doing so.