Publications for Litigation Committee
From the Editors: Litigation Committee newsletter – spring 2025
Welcome to the spring 2025 edition of the IBA Litigation Committee's newsletter, entitled: 'Shopping for justice: strategic forum choices and the rise of international commercial courts in commercial disputes." In an increasingly globalised legal landscape, parties in international commercial disputes are making ever more deliberate choices about where to litigate, navigating jurisdictional complexities, procedural nuances, and the growing presence of specialised international commercial courts.
Released on Apr 4, 2025
Cyprus: An attractive, promising forum for dispute resolution
Cyprus has emerged as a promising, prominent destination for business and litigation alike. Nowadays, when it comes to the strategic selection of jurisdiction, Cyprus is considered one of the key players in international dispute resolution and in international corporate structuring.
Released on Apr 4, 2025
Gladiators of dispute resolution: the battle for jurisdiction
This article explores the competitive landscape of dispute resolution mechanisms, focusing on the interplay between national legal systems and the rise of international commercial courts, commercial mediation and international arbitration. It considers what ‘international commercial courts’ are and whether they are truly a legitimate alternative to ordinary domestic courts on the one hand, and international arbitration on the other. The article highlights England and Wales as the premier jurisdiction for dispute resolution – renowned for its expertise, stability and robust legal framework. It also examines the distinct advantages and complementary roles of mediation and arbitration in resolving cross-border commercial disputes.
Released on Apr 4, 2025
Strategic battlefields: navigating jurisdictions in international commercial disputes
Just like in a game of chess, where the opening move determines who controls the board, a litigant’s first move can set the course for victory or defeat. Deciding on not just an ‘appropriate‘ but also the ‘best’ forum for filing their client’s proceedings is a reflection of a shrewd litigant and sets the trajectory of the case.
Released on Apr 4, 2025
Navigating international commercial courts: balancing flexibility and certainty in global disputes
International commercial courts (ICCs) offer a blend of judicial legitimacy and arbitration-like efficiency in global dispute resolution. While there is an increase in cross-border dispute resolution before ICCs, there are concerns that ICCs suffer from procedural laxity, enable forum shopping, and that there is a lack of certainty as to the enforcement of their decisions. This article examines existing ICC frameworks around the world, as well challenges against their legitimacy, and explores practical reforms to enhance their credibility and efficiency.
Released on Apr 4, 2025
Shopping for justice: strategic forum choices and the rise of international commercial courts in commercial disputes
One of the corollaries of international commerce in an increasingly globalised world is the emergence of cross-border disputes that transcend national borders and local laws. It is important that parties have certainty regarding the jurisdiction and dispute resolution mechanism that will come into play when a cross-border dispute arises. Failure to agree these issues could lead to forum shopping, whereby parties race to issue proceedings in a location that will optimise their interests. When it comes to selecting the forum and format for resolving cross-border disputes, the relatively recent rise of international commercial courts (ICCs) has led to a broader selection of dispute resolution mechanisms for parties to choose from beyond international arbitration and national courts.
Released on Apr 4, 2025
Commercial courts and alternative dispute resolution in South Africa: a possible path to faster dispute resolution
In a bulletin published by the Deputy Judge President (DJP) of the Johannesburg High Court, South Africa, regarding lead times for set down dates in the Johannesburg High Court as of 31 August 2024, the DJP disclosed the crisis faced pertaining to long lead times. There is a desperate need to assist litigants by finding ways to resolve disputes more efficiently. As a solution to minimise these delays, the bulletin encouraged the use of mediation where suitable in a case, and proposed the expansion of arbitrations beyond the commercial sector. A further solution is the use of the Commercial Court in matters concerning commercial disputes.
Released on Apr 4, 2025
Russian sanctions litigation: is a foreign anti-suit injunction a magic pill?
Russian sanctions litigation has developed into a separate category of disputes considered by Russian commercial courts in the context of claims brought by Russian companies against so-called ‘unfriendly’ foreign parties in disregard of choice of court and arbitration agreements. Although Russian case law is developing in a way that is unfriendly to foreign litigants, is there an effective defence?
Released on Apr 4, 2025
International jurisdiction regarding actions for negative declaratory judgments
On 22 April 2024, the Swiss Federal Supreme Court (hereinafter ‘Supreme Court’) handed down a landmark decision concerning international civil procedural law (4A_249/2023, intended for official publication) in a case dealing with an action for a negative declaratory judgment in a tort matter. An Italian cyclist had suffered an accident in Sicily, Italy in 2017 while riding a racing bicycle he had purchased from a Swiss manufacturer in a store in Italy. The judgment reveals that the components of the bicycle had been manufactured in China while the bike had been assembled in the Netherlands and the finished product had finally been distributed from a warehouse located in Belgium.
Released on Apr 4, 2025
The validity of forum selection clauses questioned by California courts – implications in Delaware and around the world
A long-awaited decision from the California Supreme Court may disrupt a commonly accepted tradition and feature of United States corporate law, with far-reaching implications around the world. For decades, corporations organised under Delaware law have compelled shareholders to bring any claims relating to the corporation in the Delaware Court of Chancery. This result is achieved through inclusion of a forum selection clause in the shareholder agreement and other corporate documents.
Released on Apr 4, 2025
English courts reinforce their power to grant anti-suit injunctions in international disputes
English courts continue to play a key role in international dispute resolution through anti-suit injunctions (ASIs) and anti-anti-suit injunctions (AASIs), particularly in response to recent legal shifts following Brexit and Russian sanctions. The courts have reaffirmed their commitment to preventing foreign proceedings from obstructing access to justice, as seen in Magomedov v PJSC Transneft, which confirmed that AASIs can be granted even where no contractual jurisdiction or arbitration agreement exists in certain limited circumstances. Meanwhile, UniCredit Bank GmbH v RusChemAlliance LLC reinforced that ASIs can be used to uphold arbitration agreements, even when seated outside England. These rulings highlight the courts’ evolving approach to balancing legal certainty with the practical challenges of cross-border litigation.
Released on Apr 4, 2025
International jurisdiction – what is possible and what is favourable?
When choosing the most appropriate court, the enforceability of the judgment against the defendant’s assets should be a deciding factor. In this regard, arbitral tribunals are preferable to public courts when it comes to the enforcement of a judgment on foreign territory. This is still the case even after the introduction of specialised commercial courts, at least in Germany.
Released on Apr 4, 2025
Forum shopping: a legal loophole or a strategic advantage? A glance at the Italian experience
In an increasingly globalised and interconnected legal landscape, the concept of forum shopping has become a subject of debate among legal scholars, practitioners and policymakers. At its core, forum shopping refers to the practice of strategically selecting a jurisdiction that offers the most favourable legal framework for a particular case. While some view forum shopping as a legitimate strategy that allows litigants to exercise their rights effectively, others argue that it undermines the fairness and integrity of the judicial system. This article explores the different dimensions of forum shopping, examining its impact on various legal fields, its ethical and practical implications, and the measures taken by courts and legislators to regulate it.
Released on Apr 4, 2025
Forum shopping: strategy or abuse?
International commercial litigation presents a significant challenge for companies operating on a global scale. Businesses engaged in cross-border transactions often face critical decisions regarding where to file a lawsuit. In this context, forum shopping —the practice of selecting the jurisdiction believed to offer the most favorable conditions for a legal dispute— has become a widely used strategic tool. While some argue that it is a legitimate approach to securing favorable procedural and substantive law treatment, it inevitably raises concerns about fairness, the predictability of legal outcomes, and the potential for abuse.
Released on Apr 4, 2025
Challenges and criticisms of international commercial courts: evaluation of their effectiveness, legitimacy and accessibility
Within the past decade, international commercial courts (ICCs) have carved out a specific niche for themselves, but despite increasing popularity, ICCs have not revolutionised the landscape for the resolution of international commercial disputes and have not displaced international commercial arbitration from its pedestal. In this context, it is of particular interest to examine the difficulties and criticisms faced by ICCs in order to predict their future development.
Released on Apr 4, 2025
How to choose between the new commercial courts in Germany and traditional arbitration
Like many other jurisdictions in recent years, Germany will introduce commercial courts in April 2025 in an attempt to establish itself as a more attractive jurisdiction for commercial disputes, particularly in competition with arbitration. However, it remains to be seen whether the commercial courts will provide a significant alternative. When choosing between the new commercial courts and arbitration, there are several aspects parties should consider.
Released on Apr 4, 2025
Shopping for justice: strategic forum choices and the rise of international commercial courts
This article examines the ethical implications of forum shopping, conflict of laws, and the strategic considerations that go into choosing a forum in business disputes.
Released on Apr 4, 2025
Shopping for justice: strategic forum choices and the role of GILA in enhancing Geneva’s legal landscape
This article examines how the Geneva International Legal Association (GILA) plays a pivotal role in shaping strategic forum choices within international commercial disputes. By championing Geneva’s unique legal ecosystem, GILA fosters an environment where innovative dispute resolution mechanisms – including the rise of international commercial courts – can thrive. This discussion highlights Geneva’s advantages as an international legal hub and demonstrates how GILA’s initiatives support a forward-thinking approach to forum selection.
Released on Apr 4, 2025
The concept of indirect polluter and jurisdictional choices in environmental liability cases
Concerns with climate change have transformed environmental litigation, creating a new trend of lawsuits related to massive disasters. Now cases are brought simultaneously in several jurisdictions with regards not only to companies directly related to the events, but also service providers, creditors, suppliers and others.
Released on Apr 4, 2025
Mandatory mediation in commercial disputes in Turkey
Commercial disputes are an inevitable part of business life, but the length and cost of court processes can have negative impacts on a company’s business. Mandatory mediation in Turkey represents an effective approach for resolving commercial disputes. This article discusses the function and practical stages of mandatory mediation in commercial disputes in Turkey.
Released on Apr 4, 2025
Global Women Litigators' Breakfast at the IBA Annual Conference 2024
During the 2024 Annual IBA Conference, the global women litigators breakfast hosted a timely discussion with Magistrate Mariana Moreddu on the then-recently passed and heavily protested judicial reforms in Mexico that were widely believed to threaten the independence of the Mexican judiciary and the rule of law.
Released on Apr 4, 2025
Ms Arbitrator, we need an urgent decision!
A highlight of the IBA Annual Conference in Mexico City was a panel discussion of whether, when it comes to seeking urgent interim relief, recourse to national courts remains a valid alternative to opting for emergency arbitration or expedited arbitration procedures under institutional arbitration rules. The panel was jointly organised by the IBA Arbitration and Litigation Committees and held on 20 September 2024.
Released on Apr 4, 2025
Mastering litigation in Latin America - IBA Annual Conference 2024 session report
The panel has provided attendees with insights and practical advice on navigating civil and commercial litigation in Latin American jurisdictions. The speakers offered essential guidance to help on the successful management of legal disputes in the complex landscape of Latin American law.
Released on Apr 4, 2025
A day in Singapore: exploring the Garden City that never sleeps
Singapore is a place that truly has it all – a fusion of rich multiculturalism, cosmopolitan skyscrapers, and lush natural beauty. To help you make the most of your time in this incredible city – host of this year’s IBA Annual Litigation Forum – we’ve put together this guide.
Released on Apr 4, 2025
Challenges and criticisms: evaluation of the legitimacy, accessibility, and effectiveness of international commercial courts – an African perspective
In this article, we consider perspectives on international commercial courts from South African, Kenyan, Ghanian and Mauritian legal practitioners.
Released on Mar 27, 2025
From the Editors: Litigation Committee newsletter Autumn 2024
In this issue of the Litigation Committee newsletter, under the title of ‘A brave new world: managing litigation and teams in the digital age’, we dive deep into some of the most pressing topics facing disputes lawyers today. With the digital transformation accelerating, the ways we approach litigation, team management, and client service are being reshaped. We explore the potential of AI to enhance case preparation, manage data, and assist in predictive analysis. Our experts share insights on leveraging digital tools to enhance collaboration and foster a sense of unity, even when colleagues are dispersed across locations and time zones. We delve into best practices for securing sensitive data, protecting client confidentiality, and mitigating the risk of cyber threats. We also report on the excellent sessions from our Annual Litigation Committee Forum in Amsterdam in April 2024, and our webinar on litigating in China.
Released on Dec 2, 2024
Balancing efficiency and privacy: AI’s impact on legal confidentiality and privilege
The integration of AI into legal practice has raised concerns about maintaining client confidentiality and legal privilege. Whilst AI tools offer significant efficiency gains, they pose risks to the confidentiality that is fundamental to the legal profession. Public generative AI models may inadvertently store sensitive client data, creating potential breaches of legal obligations. The uncertainty surrounding whether AI-generated documents are protected by legal professional privilege complicates matters further. As AI usage grows, the legal community may need to adopt ethical safeguards, such as using secure, private AI systems and disclosing AI involvement in legal processes, to protect client information and uphold the integrity of the profession.
Released on Nov 29, 2024
Business email compromise: who bears the risk of liability?
In today’s digital age, business email compromise (BEC) has become a threat to businesses and individuals. BEC can be defined as ‘a criminal act where criminals illegally access an email account and communicate as if they are the user’. Courts globally have had to determine who becomes liable for the loss suffered in such instances. This article provides brief examples of how this issue has been dealt with in different jurisdictions.
Released on Nov 29, 2024
Fraud, phishing and duties of the bank
More and more, banks’ customers file judicial actions to hold the bank responsible for losses incurred when the bank has completed a payment request made at the request of third-party fraudsters instead of the ‘real’ customer. This article looks at how the Portuguese Supreme Court of Justice decided who should be held accountable in two recent cases, the first involving a case of phishing via text message and the second involving the misuse of an e-mail address belonging to the bank’s customer.
Released on Nov 29, 2024
Digitalisation of the civil process in Italy and the impact on parties, lawyers and judges
Digitalisation of the Italian civil trial system has brought significant improvement in terms of speed of process and efficiency. There is a new generation of ‘born digital’ lawyers and judges. However, questions about the client-lawyer relationship and the risks of fraud in the process must be carefully considered.
Released on Nov 29, 2024