International litigation case management

Rapporteur: Charlotte Bolton, Michelmores, London

This was an insightful session covering international litigation case management, chaired by Peter Bert (Taylor Wessing, Germany). The purpose of the session was to consider best practice for managing transnational disputes across different jurisdictions, looking at how differing procedural rules, timetables, and cultures can best be navigated by in-house and external counsel, and clients, successfully.

James Menz (Senior Litigation Expert in Bombardier Transportation’s Global Litigation Group) offered the in-house view, also drawing on his experience from his private practice in both the United States and the European Union. Menz stressed the importance of a clear project management strategy at the outset and early case assessment to quickly understand the facts, the ultimate goal, the alternatives to litigation and the documents or witness evidence which should be secured.

Prior to litigation, Menz recommended establishing a litigation ‘project team’ which would involve both in-house counsel and non-lawyers to assimilate the required expertise needed when contemplating litigation. This would include the relevant litigation experts, the commercial managers and project managers from across the business and often across jurisdictions.

Menz highlighted that, as in-house counsel, the key considerations when entering litigation were budget controls, cross-litigation pollination and managing in-house and external cooperation. When talking about managing in-house and external teams, Menz noted that different cultures, communication channels and ‘the way we do it’ attitudes continued to present challenges to transnational legal project management, and acknowledged that online collaboration was still a relatively new concept across many businesses. Menz explained that expectations of deliverables, reporting styles and barrister/solicitor interactions vary widely worldwide which can create relationship issues. Similarly, issues can arise where there are differences in procedural matters across jurisdictions, and also in substantive law whereby the understanding of the in-house team is based on their own local law concepts, which may not correlate completely with the jurisdiction where the litigation is being fought.

Menz’s conclusions were supported by the poll during the session asking what the participants considered to be the most challenging aspects of transnational litigation. The top-scoring challenges were enforcing judgments (78 per cent), managing costs and budgets (70 per cent) and duration of proceedings (63 per cent).

Next, Samaneh Hosseini (Partner at Stikeman Elliott in Toronto) offered her thoughts. Hosseini’s view of the pre-litigation and early case management challenges echoed Menz’s thoughts as she shared her experience that procedural laws, languages, cultures and legal norms/practices could all create difficulties for external counsel in transnational litigation. She added that demands on a client’s senior management could also create further challenges.

Hosseini explained that she often dealt with parallel or cross-border proceedings. In both contexts, it is important to work with local counsel closely to understand the process, the client's objectives and risk appetite in order to coordinate strategy effectively. Early case management was again considered to be key for external counsel. Hosseini acknowledged that, for many clients, good project management often means good management of legal spend. The earlier poll results clearly showed Hosseini’s experience was in line with that of the participants.

Hosseini identified jurisdiction issues as often one of the first issues which external counsel encounter as they establish whether the case is appropriate for their jurisdiction. Key considerations prior to issuing litigation in different jurisdictions are often pre-trial discovery, costs regimes, privilege and privacy/data protection laws.

With regard to privilege, Hosseini shared some useful reminders to keep communications via video or phone calls where possible, share documents interactively online and make it very clear where communications or documents are for the purpose of legal advice.

Brody Warren (Attaché to the Secretary General at the Hague Conference on Private International Law (HCCH)) was the final panellist of the session. Brody explained that, in his role, he was predominantly looking at the 1965 Service Convention and 1970 Evidence Convention.

Warren provided an insightful overview of the provisions of both Conventions. A poll of the 60 participants was run to establish how many had experience of the HCCH being used in practice and of those, how they would rate their experience. Of the participants, 66 per cent had experience and 44 per cent of these rated their experience as adequate.

When discussing the channels for taking of evidence under the 1970 Evidence Convention, he noted that the use of video link to facilitate the taking of evidence is acknowledged by the Special Commission as being consistent with the current framework of the Convention and is executed by the foreign authority when a request for evidence via video link is made. Given the challenges that can arise around the use of video-link, Warren drew our attention to the publication of the Guide to Good Practice on the use of video link by HCCH in April 2020, which he said had been on the HCCH’s radar for a long time. Indeed, the introduction of this Guide to Good Practices dates back to December 2015.

The execution of the video link is governed by the receiving state and the approach can be very inconsistent dependent on the approach taken. This led to a further discussion on the wider problems on video links being used at Court. Hosseini considered its use to be more difficult where witness examination is required, although giving factual witness evidence via video link had worked well in Bert’s experience.

All panellists agreed that screen-sharing can result in hearings taking much longer and video link may not therefore be so effective in document-heavy cases.

Developments in artificial intelligence (AI) and the judiciary

Rapporteur: Sverker Bonde, Advokatfirman Delphi, Stockholm

On 9 November 2020, the Litigation Committee held a virtual session on developments in artificial intelligence and the judiciary.

The session was moderated by Fabio Trevisan (Bonn Steichen & Partners, Luxembourg) with a panel combining the academic view from Tania Sourdin (University of Newcastle Law School, Newcastle, Australia) and Giuseppe Contissa (University of Bologna, Italy) with the views of private practitioners Dinesh Dhillon (Allen & Gledhill, Singapore) and Sanjeev Kapoor (Khaitan & Co, New Delhi,).

In the introduction, Trevisan reminded the audience that eBay resolved 60 million (!) disputes in 2016 through its dispute resolution platform, 90 per cent of these with no human intervention – highlighting the capacity of automatic dispute resolution systems.

Sourdin provided a useful categorisation into three levels of artificial intelligence (AI):

Sourdin predicted that, in the next five to ten years, we will probably see lower levels of change, with supportive technology and replacement technology being the main drivers. Replacement of decision makers in more complex decisions is another thing, as the role of judge is extremely complex (involving not only the determination of the law but also shaping the law, as well as complex interaction with involved parties and many other factors).

At the same time, Sourdin predicted that the increase in use of online courts and online dispute resolution will continue, with more or less automated parts as an important part of the replacement technology.

Trevisan asked the panel if they could imagine replacing human judges with artificial intelligence. Sourdin answered in part by saying she saw the most change for judges in improved supportive AI, by way of for example assistance in information gathering, predictive analysis, evidence verification, production of draft judgments and similar. Sourdin also predicted that ‘AI judges’ are more likely to be involved in simple civil cases, personal injury cases and simple contractual manners, indicating that there are ethical concerns and concerns regarding accountability which needs to be addressed.

Contissa introduced the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe and its Ethical Charter on the use of AI in judicial systems and its five key principles (respect of fundamental rights; non-discrimination; quality and security; transparency, impartiality and fairness; and ‘under user control’).

Contissa moved on to consider how these principles can be made operative, and not just empty principles. One method is a certification system for AI in judicial systems that the Council of Europe is working on. In addition, a key element is ensuring informed trust of the users, for instance through ensuring the ‘explainability’ of the decision-making process. Contissa highlighted the need for AI to be understood not only by engineers but also by lawyers as it is a powerful force that can transform our society, which is a matter lawyers should be concerned with.

Kapoor provided a perspective from India and how quickly the Indian court system had moved to virtual hearings as the Covid-19 pandemic forced the courts to make that transfer. For India, a particular problem is the huge size of the country, with 22 different official languages. AI can be very useful in this context, with one example being an AI tool used by the Supreme Court of India to provide automatic translations into (currently) nine of these languages.

Kapoor further emphasised the specific challenge that you would not expect an AI system to make any mistakes (much like a driverless car is not expected to cause any accidents), whereas you are more inclined to understand that there will be human error with human judges (or drivers). Having outlined this challenge, Kapoor also pointed to the huge potential of supportive AI systems in identifying identical or similar cases of a simpler nature and providing them together to a judge for determination, as an efficient means of helping an overloaded judiciary with moving cases forward to resolution more swiftly: in other words. ensuring access to justice.

Dhillon highlighted the diverse and international nature of the users of the judiciary in Singapore as a starting point and held out that the use of AI must never compromise the fundamental principles of access to justice and due process. Dhillon gave an outline of the use of technology in Singaporean courts with supportive AI technology being introduced as an important part in ensuring access to justice. As in India, and throughout the world, the pandemic has led to a steep learning curve also in Singapore for the use of online virtual hearings and other supportive measures.

When it comes to the prospect of having AI replace judges, Dhillon highlighted the importance of involved parties, as emotional human beings, actually having their case heard by a human judge. Given this, Dhillon saw it more likely that supportive AI will be of importance for judges going forward, especially in situations involving judges hearing many similar cases where otherwise ‘decision fatigue’ may come into play.

Courts: Allies or foes to arbitration? Court proceedings in support of or obstructing arbitration

Rapporteur: Sara Chisholm-Batten, Michelmores LLP, London

Angelo Anglani (Co-Chair, Litigation Committee) facilitated an informative webinar exploring the relationship between national courts and arbitral tribunals around the world.

He was joined by a number of experts in international dispute resolution: Tom Price (Gowling WLG, Head of CIS and CEE); Hakim Boularbah (Loyens & Looeff, OHADA and ICC arbitrator); Ndanga Kamau (Vice President, ICC International Court of Arbitration); and Barbara Benzoni (Senior Vice President, ENI SpA, Italy).

National courts often play a role in arbitration, including determining matters of jurisdiction, ordering interim remedies, and assisting parties with the disclosure of documents and obtaining evidence in support of arbitral proceedings. After the award, the court is the place of enforcement.

However, as Angelo summed up, is the court's approach a supportive ‘intervention’, or is it tantamount to an unhelpful ‘interference’?

England and Wales

Tom Price considered the position in England and Wales. In broad terms, England is an arbitration-friendly jurisdiction and courts are generally supportive of arbitral proceedings. Parties are free to decide how disputes are resolved, and the court should not intervene except as provided for in the Arbitration Act 1996.

English courts will support an express choice of arbitration before arbitration proceedings commence, and will act to grant injunctions, where appropriate, to stay foreign proceedings brought in breach of an arbitration agreement. Most recently this occurred in Enka v Chubb – a case that was expedited up to the Supreme Court which demonstrates the importance the English courts place on determining matters relating to arbitration. If court proceedings are brought in England in breach of an arbitration agreement, the court will grant a mandatory stay of those court proceedings.

According to section 44 of the Arbitration Act, the court has the power to grant interim injunctions but only if the tribunal does not have the power to grant such interim remedies. This has been subject to a lot of litigation. For instance, where the arbitral panel has not yet been constituted, but where the rules of the arbitral institution (such as London Centre for International Arbitration rule 9) provide for an arbitrator to be appointed on an ‘emergency’ basis, should the court step in?

The court also has the power to assist with taking evidence from third party witnesses and disclosure in support of arbitration proceedings.

In relation to enforcement, the IPCO Nigeria case, which has been a long-running enforcement battle since 2004, has demonstrated the English courts’ ability to support enforcement of arbitral awards under the New York Convention.

While Price would not characterise the actions of the court as ‘obstructing’ arbitration, they do have safeguarding powers where an award offends against public policy, for instance in the case of Sabbagh v Khoury, which related to a Lebanese arbitration. The case of Halliburton Co v Chubb Bermuda Insurance Ltd is in the Supreme Court currently and we are awaiting a decision in relation to the purported bias of an arbitrator who had accepted multiple appointments in overlapping cases.

In general, in order to challenge an award for bias there must be serious irregularity – a very high threshold which is often very difficult to achieve. The English courts will allow appeals on points of law unless that power is excluded by institutional rules. In 2019, there were 39 appeals on points of law but none succeeded. The court strives to uphold most awards.

In summary, the English courts have a long history of supporting arbitration provisions, and their powers of safeguarding are used sparingly.

Belgium and France

Hakim Boularbah considered the position in Belgium and France. Belgium has adopted legislation based on the UNCITRAL Model Law on International Commercial Arbitration, so the courts are orientated towards supporting arbitration.

The Belgian courts have considered whether a party can seek interim protective measures from the court before the arbitration has started or pending constitution of the arbitral panel. According to the International Chamber of Commerce (ICC) rules, where an urgent interim remedy is needed, parties can apply for the appointment of an emergency arbitrator. Nevertheless, the Court of Appeal has held that parties can always go to the state court to apply for interim measures.

Boularbah considered the position where a partial or interim award has been handed down, and the arbitration is still going on, but an application is made to court to set aside the interim award and suspend the arbitration in the meantime. Belgium and France consider that interference by courts must be discouraged in these circumstances.

Another recent issue considered by the Belgian and French courts is whether it is possible to set aside an award on the basis that it was not reasoned, because there is a contradiction in the statement of reasons. The Belgian and French Supreme Courts adopted a pro arbitration approach and ruled that a contradiction does not amount to an absence of reasons and awards would stand.

The new B2B law – brand new legislation in Belgium – prevents unfair clauses in contracts between businesses. The definition of an unfair term includes a clause containing a waiver of all of a party's legal recourses against the other party. There was a query whether this prohibition would cover an arbitration clause. The Belgian parliament considered it could. In Boularbah’s view, this is plainly wrong but a plaintiff could potentially use this new provision to attempt to invalidate an arbitration agreement.

In another recent Belgian case, an arbitrator failed to disclose that their law firm had carried out work for an affiliate of one of the parties to the arbitration. One of the parties questioned the arbitrator’s impartiality, which was upheld. In general terms, the courts have placed an obligation on arbitrators to continually update their disclosures of any potential conflicts, as the arbitration progresses.

Sub-Saharan Africa

Ndanga Kamau considered the developing jurisprudence in Sub-Saharan Africa. Unlike England and Wales, there is not a long history of arbitration but it is possible to identify certain trends. Each state is diverse in the way it approaches arbitration, which is a relatively new and developing area.

This year Sierra Leone is the 166th state to accede to the New York Convention. South Africa has adopted legislation based on the UNCITRAL model law, and Tanzania enacted a new Arbitration Act in 2020, which demonstrates the region's commitment to arbitration as an effective form of dispute resolution.

There is not much jurisprudence as a result – are courts allies or foes? Ndanga's view was that it is difficult to say with full confidence, as sometimes there is an inconsistency in the application of arbitration laws. For instance, in the case of Getma International v Republic of Guinea, which concerned the Organisation pour l'Harmonisation en Afrique du Droit des Affaires (OHADA) regime, an arbitral award was annulled where the arbitrators had entered into a fee agreement with the parties outside the OHADA arbitration rules. The case caused an outcry. Unfortunately, these types of decisions lead to a perception of instability in relation to court practice in assisting or obstructing arbitration.

However, that is not the complete picture. States are also innovating; for instance, Mauritius has decided to modernise its arbitration regime and has included additional innovations in the UNCITRAL model law enacted. The rules provide for greater distance between the court and arbitrators (to promote more effective oversight), and for there to be designated judges with specific arbitration expertise. There is also an automatic right of appeal from the state Supreme Court to the Judicial Committee of the Privy Council in the UK on arbitration related matters.

There is a greater move towards the harmonisation of arbitration rules within Sub-Saharan Africa. The OHADA regime is a group of 17 countries, mostly Francophone, which have a uniform arbitration act as their law. In addition, there is a supra-national court based in Abdijan, Ivory Coast which oversees the activities of courts in the OHADA region.

Italy

From her standpoint as Senior VP at a major multinational oil and gas company, headquartered in Rome, Barbara Benzoni provided her views on the interplay between arbitration and courts in Italy.

Where the chosen law of the arbitration is Italy, arbitrators are prevented from granting interim relief ‘unless Italian law provides otherwise’. Italian law does not provide otherwise, so a party must have recourse to the Italian courts for interim remedies in support of an arbitral process. There have been many court cases on this issue and it is considered a mandatory provision of Italian law. Some scholars go further and consider that, if an arbitration agreement holds otherwise, it may be considered to be invalid under Italian law.

Italian courts are helpful and usually fast, so that parties are able to obtain urgent relief where needed.

The group ended the session by providing examples of their best and worst experiences of the interplay between the courts and arbitration, including some strange enforcement-related decisions which had to be put right, and urgent applications for interim injunctive relief.

Preservation of legal privilege in international litigation

Rapporteur: Andreas Frischknecht, Chaffetz Lindsay, New York

Daan Lunsingh Scheurleer (Clifford Chance, the Netherlands) chaired a lively discussion with panelists sharing insights on best practices to preserve legal privilege in cross-border litigation.

The participating speakers represented a range of jurisdictions with often very different privilege rules: Rajendra Barot (AZB, India); Branda Katan (Stibbe, the Netherlands); Adam Li (Jun He, China and the US); Christian Tuddenham (Jenner & Block, the UK); and Maureen Ward (Bennett Jones, Canada).

The panel members illuminated a number of issues and potential pitfalls for counsel to consider, including choice of law (ie, which jurisdiction’s law should apply: the lawyer’s or the client’s?); the risk of waiver; whether courts will give effect to joint defence or common interest agreements among parties with aligned interests; the distinction in certain jurisdictions between legal advice privilege and litigation privilege; and whether privilege protection extends to communications with in-house counsel.

• Supportive technology – technology which assists in information, supporting and advising persons involved in justice activities (remote hearings, e-forms, apps, etc).
• Replacement technology – technology which replaces functions and activities previously carried out by humans (case management tools, letters, apps, etc).
• Disruptive technology – technology which changes the way that determinative and advisory processes work through the use of big data and complex knowledge generation (AI replacing some decision making).