International (And China) Litigation. The Questions To Ask.

Like every lawyer in the Western World, I love reading Above the Law for its salacious gossip. My favorite item was many years ago when they posted on the (completely untrue) rumor that my law firm was in merger talks with Baker & McKenzie. It is not the site on which one expects to see a really top-notch article on international litigation.

But there it was,?"Inside Straight, Overseeing International Litigation, by Mark Herrmann, an in-house lawyer with AON and author of?The Curmudgeon's Guide to Practicing Law. ?Hermann has learned international litigation by virtue of being "ultimately responsible for all litigation filed against my company anywhere in the world." Hermann gives an excellent primer on the questions to pose to "outside counsel overseas:"?

• Do you have juries in your country for a case such as mine??
• Does the losing party pay the winning party’s legal fees??
• Is it possible to learn before trial what evidence the other side is likely to present in court? If so, is that procedure restricted to learning in advance what documents the other side will offer, or are we allowed to put the other side’s witnesses under oath and learn before trial what the oral trial testimony is likely to be??
• Is it possible to get out of a lawsuit before a trial is held? If so, when will we have those opportunities, and what standards will the court apply? ?
• Can we trust the judicial system, or are the judges typically corrupt?

These are all good questions and here are a few more that I typically ask when I am overseeing international litigation:

• ?If we win, how can we collect?
• ?Do judges care much about live witnesses or are documents everything/nearly everything?
• How long from filing until trial?
• What do we need to do to get evidence from the other side? From third parties?
• Do cases usually settle before trial? In the United States, something like 98% of all civil cases settle before trial. In China it "feels" like 98% go to trial.
• What do you charge? Can lawyers take cases on a contingency fee basis?
• What do we need to do to make sure we win this case?

Any more?

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How To Sue A Chinese Company. Part III. Litigation Strategies And Enforcing Judgments.

This is part III of our series on how to sue a Chinese company. This series of posts addresses what to do to secure redress against a Chinese company that owes you money or has wronged you. It is based on an article I recently had published (along with one of my law firm's new associates, Rebecca Carlson) in Bloomberg Law Reports [one week trial subscription required] and on an article I wrote for the Wall Street Journal, entitled," Chinese Companies Court Disaster." Please note that instead of using footnotes, this post use brackets, [], instead.

Part I focused on how to effect service of process on a Chinese company pursuant to the Hague Convention and on the jurisdictional issues involved in suing a Chinese company. Part II focused on how to conduct discovery against a Chinese company. This post focuses on overall litigation strategies against Chinese companies and on enforcing judgments against them. ?

Litigation Strategies

U.S. companies hold many advantages over Chinese?companies in U.S. litigation. In today's political?climate, American jurors generally view Chinese?companies unfavorably. Moreover, Chinese?companies' tendency to skirt American discovery?rules, if brought to the court's attention, have the?potential to cost the Chinese company valuable?credibility. See also Chinese?Companies Court Disaster, Wall Street Journal, August?18, 2010.?Finally, Chinese companies tend to?underestimate the importance of U.S. trial court?decisions in fact‐finding, often holding back until?appeal:

Appeals in China are usually de novo,?meaning that if a trial‐court judge disagrees?with your version of the facts, you can make?another attempt to tell your side of the?story at the appellate level. But in the U.S.,?appeals courts take as a given the trial?court's findings of fact and will hear only?disputes about the trial judge's?interpretation of legal questions. This?means that in America you rarely get more?than one chance to put forth your version?of the facts, so you had better do it right?the first time. In China the fight often?begins only once a case hits the appeals court.

Enforcing U.S. Judgments In China

U.S. judgments have virtually no value in China.?Neither a treaty nor a reciprocal arrangement exists?between China and the United States regarding the?recognition or enforcement of judgments in civil?matters. Chinese courts simply disregard U.S.?judgments.

If the Chinese company has assets in the United?States, or in another country that generally enforces?U.S. judgments (such as the United Kingdom,?Canada or South Korea), suing in a U.S. court may be best way to proceed. Otherwise, the?judgment of a U.S. court is of little to no use.

Tomorrow's post will be the fourth and final post in this series and it will focus on suing Chinese companies in China and in arbitration. ?

?

The above excerpt comes from an article originally published by Bloomberg Finance L.P. and has been reprinted with permission. The opinions expressed are those of the author. ?? 2010 Bloomberg Finance L.P.

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How To Sue A Chinese Company. Part III. Litigation Strategies And Enforcing Judgments.

This is part III of our series on how to sue a Chinese company. This series of posts addresses what to do to secure redress against a Chinese company that owes you money or has wronged you. It is based on an article I recently had published (along with one of my law firm's new associates, Rebecca Carlson) in Bloomberg Law Reports [one week trial subscription required] and on an article I wrote for the Wall Street Journal, entitled," Chinese Companies Court Disaster." Please note that instead of using footnotes, this post use brackets, [], instead.

Part I focused on how to effect service of process on a Chinese company pursuant to the Hague Convention and on the jurisdictional issues involved in suing a Chinese company. Part II focused on how to conduct discovery against a Chinese company. This post focuses on overall litigation strategies against Chinese companies and on enforcing judgments against them. ?

Litigation Strategies

U.S. companies hold many advantages over Chinese?companies in U.S. litigation. In today's political?climate, American jurors generally view Chinese?companies unfavorably. Moreover, Chinese?companies' tendency to skirt American discovery?rules, if brought to the court's attention, have the?potential to cost the Chinese company valuable?credibility. See also Chinese?Companies Court Disaster, Wall Street Journal, August?18, 2010.?Finally, Chinese companies tend to?underestimate the importance of U.S. trial court?decisions in fact‐finding, often holding back until?appeal:

Appeals in China are usually de novo,?meaning that if a trial‐court judge disagrees?with your version of the facts, you can make?another attempt to tell your side of the?story at the appellate level. But in the U.S.,?appeals courts take as a given the trial?court's findings of fact and will hear only?disputes about the trial judge's?interpretation of legal questions. This?means that in America you rarely get more?than one chance to put forth your version?of the facts, so you had better do it right?the first time. In China the fight often?begins only once a case hits the appeals court.

Enforcing U.S. Judgments In China

U.S. judgments have virtually no value in China.?Neither a treaty nor a reciprocal arrangement exists?between China and the United States regarding the?recognition or enforcement of judgments in civil?matters. Chinese courts simply disregard U.S.?judgments.

If the Chinese company has assets in the United?States, or in another country that generally enforces?U.S. judgments (such as the United Kingdom,?Canada or South Korea), suing in a U.S. court may be best way to proceed. Otherwise, the?judgment of a U.S. court is of little to no use.

Tomorrow's post will be the fourth and final post in this series and it will focus on suing Chinese companies in China and in arbitration. ?

?

The above excerpt comes from an article originally published by Bloomberg Finance L.P. and has been reprinted with permission. The opinions expressed are those of the author. ?? 2010 Bloomberg Finance L.P.

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