International Disputes: Jurisdiction, Arbitration, and Enforcement

The forum selection and choice of law provisions in an international contract are among the most consequential terms, and international trade contracts counsel must evaluate whether the selected forum is enforceable in each party's jurisdiction, whether the chosen law produces favorable outcomes for the specific obligations at issue, and whether the dispute resolution clause creates asymmetric advantages that may not be apparent until a dispute actually arises.

A party defending a lawsuit in an inconvenient forum can move to dismiss by demonstrating that an adequate alternative forum is available and that private interests favor litigation there. International litigation counsel must identify a specific alternative forum in which the plaintiff can obtain jurisdiction and in which the applicable substantive law will be applied.

A party seeking to enforce an international arbitration award must present the award and the arbitration agreement to the competent court where enforcement is sought, and international arbitration counsel must evaluate whether any grounds for refusal under the New York Convention, including public policy objections or procedural defects, are likely to be raised by the award debtor and prepare to defeat those challenges.

International arbitration offers confidentiality, a neutral forum, and the ability to select arbitrators with relevant expertise, and arbitration and mediation counsel advising on an arbitration clause must evaluate which institution's rules best suit the anticipated disputes and what seat of arbitration will produce the most favorable procedural law for the type of dispute likely to arise.

A party in US litigation that needs documents from a witness in a foreign country can use the Hague Evidence Convention to request judicial assistance from the foreign court, and international dispute resolution counsel must evaluate whether the target jurisdiction is a Convention signatory and whether blocking statutes restrict document disclosure to foreign tribunals.

The Foreign Sovereign Immunities Act provides a limited waiver of sovereign immunity for claims based on a foreign state's commercial activities that have a direct effect in the United States, and foreign investment law counsel must evaluate whether the specific conduct qualifies as commercial activity under the FSIA, whether any applicable bilateral investment treaty provides a more favorable ISDS mechanism, and what assets of the foreign state are available for attachment.

A party that has obtained a judgment against a foreign defendant must identify and attach assets before the defendant can move them, and international class actions and cross-border litigation counsel must coordinate freezing order applications in each jurisdiction where assets are located and present the award in a form that satisfies each jurisdiction's domestication requirements.

Mediation allows parties to resolve an international dispute on negotiated terms that may preserve a business relationship and produce a resolution faster and at lower cost than arbitration or litigation, and dispute resolution counsel must evaluate whether the Singapore Convention on Mediation provides cross-border enforceability for the settlement agreement in the relevant jurisdictions.