Current issues in transnational litigation
Tom Price
Gowling WLG, Birmingham
Report on IBA Litigation Committee session held at the 2025 Annual Litigation Forum in Singapore
Friday 11 April 2025
Co-chairs
Lucy Pert Hausfeld, London; Jurisprudence Observer Officer, Litigation Committee
Kosuke Tsunashima Anderson Mori & Tomotsune, Tokyo; Regional Representative Asia Pacific, Litigation Committee
Panellists
Cara Cameron Woods, Montréal; Scholarship Officer, Litigation Committee
Professor Darius Chan Breakpoint, Singapore
Michael Novicoff Pryor Cashman, Los Angeles; Member, Litigation Committee Advisory Board
Ligia Popescu Wolf Theiss, Bucharest; Committee Liaison Officer, Litigation Committee
Amir Singh Pasrich International Law Affiliates, New Delhi; LPD Secretary-Treasurer/IBA Treasurer
Rodrigo Zamora Galicia, Mexico City; Membership Officer, Class Actions Committee
The last session of the IBA Annual Litigation Forum in Singapore was ‘Current issues in transnational litigation’ expertly moderated by Lucy Pert and Kosuke Tsunashima. The format followed a trend started in London in 2022 where each panellist presented for around seven minutes on a case or other legal development from their jurisdiction, then took questions. At the end the audience voted for the case they considered most important. The respective presenters would be delighted to discuss their respective cases in further detail than either the note below, or even their time-limited presentations, permits.
Professor Darius Chan, an independent arbitrator qualified in England, New York and Singapore, started off with an analysis of India v Deutsche Telekom (DT). DT brought an investment treaty claim against India by way of Swiss-seated arbitration under the Germany–India bilateral investment treaty (BIT). An interim award was made in favour of DT which India unsuccessfully sought to have set aside in the Swiss courts. DT sought to enforce the award in Singapore. The question was whether the enforcement court was precluded from considering objections already determined by the seat court under the doctrine of issue estoppel. Applying transnational issue estoppel promotes finality, consistency and judicial economy, but a distinction must be made between awards set aside on transnational grounds – eg procedural irregularity – and domestic grounds such as arbitrability.
In this instance the Singapore court held that an enforcement court will act on a presumption that it should regard a prior decision of the seat court on matters pertaining to the validity of the award as determinative of those matters. This so-called ‘primacy principle’ applies alongside issue estoppel, advances comity, avoids inconsistency, and ensures finality and effectiveness of international arbitration.
A dissenting judgment suggested that there was no need to recognise the primacy principle as issue estoppel as the English law principle of Henderson v Henderson is sufficient, and it goes against the New York Convention which states it is for the enforcing court to determine the weight to challenges before the seat court. The decision strengthens the finality of arbitration awards, promotes consistency in transnational disputes and reduces forum shopping and conflicting judgments.
Cara Cameron from Woods then discussed the Canadian Supreme Court case of Eurobank Ergasias SA v Bombardier Inc [2024 SCC 11], a case involving allegations of cross-border fraud, international arbitration and duelling court systems. The relevant facts were that the Greek Ministry of Defence (MOD) signed a procurement contract with Bombardier for firefighting amphibious aircraft. Bombardier agreed to involve Greek companies in the work, owing liquidated damages (LDs) if they failed to do so, enforceable through International Chamber of Commerce (ICC) arbitration. To secure that obligation a Greek bank provided a guarantee to the MOD and a Canadian bank issued a counter-guarantee on behalf of Bombardier to the Greek bank.
When Bombardier could not fulfil its subcontracting obligations, the MOD started an ICC arbitration and formally undertook not to demand payment under the Greek guarantee pending conclusion of the arbitration. It then changed its mind but before making demand, Bombardier obtained an interim arbitral order preventing a call on the guarantee. It also obtained an interim injunction from the Canadian court preventing payment under both guarantees. The Greek bank sought an injunction from the Greek court restraining the MOD calling the guarantee, which was initially granted then set aside. Just before the ICC award came out, the MOD made demand under the Greek guarantee. The Greek bank paid and then the award came out with MOD losing. No LDs were owed. The Greek bank was out of the money. It sued the MOD and lost. The Greek court said no fraud had occurred and the bank was obliged to pay. The Greek bank made demand on the Canadian bank. Bombardier sought a permanent injunction restraining the Canadian bank from paying.
The Canadian Supreme Court found the MOD had acted fraudulently when it demanded payment when it said it would not. The Greek bank knew what was happening and became a co-author of the fraud. The Canadian bank was therefore injuncted from paying out. The Greek bank was left holding the loss.
The interesting point to note was how the Canadian Supreme Court treated the arbitral award and the Greek court judgment. It said the interim arbitral injunction obtained by Bombardier should be enforced under Canadian law: violating that injunction triggered the fraud exception to the rule on autonomy of letters of credit (the guarantee).
Ligea Popescu (Wolf Theiss) and Mike Novicoff (Pryor Cashman) then described a matter that they have worked on together for the last seven years. A Romanian film scriptwriter had brought proceedings in the Romanian courts against nine defendants who were producers and financiers of the film Escape Plan, alleging that it infringed copyright in a script he had previously written. The case was commercially very significant as not only had it cost nearly US$140m to make, with receipts of US$350m that were at risk if the lawsuit succeeded, but also the defendants decided during the case to produce two sequels which would have suffered the same fate had the lawsuit gone the wrong way.
A somewhat unusual feature of the case was that Romanian law states that the law governing how evidence is collected is the law of the place of the infringement – ie, California. In such cases the court is usually concerned with two matters. First, whether the defendant had access to the claimant’s script – an objective question – and secondly, whether the works are substantially similar – a subjective question. As a matter of fact, the defendants shot their movie prior to the claimant writing his script which should have meant the matter being decisively decided in the defendants’ favour. However, the Romanian court was not interested in this and proceeded only on the second part – namely, whether the works were substantially similar. This required expert evidence and also application of the Berne Convention which says that certain elements of a work are not protectable: eg, in films about prisons (as here) there will be matters such as escapes, fights between prisoners and so forth that are not protectable. The Romanian court ultimately decided in the defendants’ favour. The case also demonstrates the benefits of IBA cross-referrals!
Amir Singh Pasrich considered the case of GLAS Trust Co LLC v Byru Raveendran and others. The background to this case was the enforceability of a foreign judgment in India. Pasrich surveyed a number of previous authorities of the Indian courts including International Woollen Mills v Standard Wool (UK) Ltd and China Shipping Development Co Ltd v Lanyard Foods Ltd where it was made clear that, under Indian law, enforcement of a foreign judgment requires that it has been given on the merits. A default judgment is not given on the merits but summary judgment is sufficient. In GLAS the question arose in the context of an insolvency and whether the foreign court had heard all concerned parties and considered all relevant factors. It was suggested that the National Company Law appellate tribunal had not adequately addressed all the matters.
Finally, Rodrigo Zamora gave an update on the situation in Mexico regarding the appointment of judges, which was discussed in some detail at the annual conference in Mexico City in September 2024. Zamora noted the significant amendments made to the Mexican Constitution, overhauling the judiciary at federal and local level. The key changes are:
- all judges including Supreme Court justices will now be elected by popular vote;
- qualifications for judgeships have been lowered to broaden the pool of potential candidates;
- judges are no longer able to issue injunctions with general effect; and
- a newly established judicial disciplinary tribunal has been empowered to issue final and unappealable rulings to sanction judges.
The current progress is that more than half of Mexico’s states have implemented reform of their local legislation; eight of the 11 Supreme Court judges have resigned, with only three campaigning for election. Zamora spoke of national elections to be held on 1 June 2025 for the 50 per cent of federal and local judicial positions which have implemented the reform, with the results implemented on 1 September 2025. He expected many current judges to run for election. Many of those who will run have no previous experience. The numbers are: nine Supreme Court justices, 464 collegiate tribunal magistrates and 386 district court judges. The campaigning is already underway, with many young candidates. There are various rules, including ‘no speakers allowed’ and ‘only private financing’.
The audience voted – a tie between Professor Chan and Rodrigo Zamora.