Lawyer Monthly Magazine - July 2019 Edition

CROSS BORDER DISPUTES employment is something that every jurisdiction will regulate very specifically. Thus, I will not know in a cross-border dispute precisely what the employment laws are in the foreign country involved. I’ll know what the employment issues likely are so I can ask the right questions, and I may know some laws if I have worked in that country before. But I won’t know everything. As you deal with a lot of multinational disputes, what is, in your opinion, the best way of obtaining evidence for a dispute you are handling? Good question! This is one thing that will always differ from jurisdiction to jurisdiction: what you can do to get evidence. Witness preparation is key, and if you don’t communicate well enough with your witnesses, they may not give the most accurate statement when testifying. But in some jurisdictions, you are limited to how much you can even talk to your own witnesses or clients if they will be testifying. You need to be aware of the different rules so you don’t run afoul of them. The same goes for preparation of witness statements. Some countries have limitations on the extent to which an attorney can be involved in preparation of the statement. While, here in the U.S., so long as the witness can honestly say what is in the statement, there is no restriction on your involvement in its preparation. With respect to getting Speaking to Partner at Miller Nash Graham & Dunn LLP, Chris Helmer tells us more about handling cross border disputes, how to gain evidence and challenges which she often faces. evidence in foreign jurisdictions – there are significant limitations on getting it. A US court can’t compel a witness in another jurisdiction to give evidence except in very very limited circumstances, like, if the witness is a US citizen. There are ways to seek the help of a foreign court, but other countries do not allow the same level of evidence gathering that we do so while you might get a deposition, you won’t get much in the way of documents. If you can get a witness to voluntarily give evidence, that’s the best. And, from my experience, the best way to do that is to establish connections in the local community. I just worked on a case in India and was finding it difficult to obtain some documents. Our request was denied by the government, however, the reasoning behind the denial made very little sense and we were unsure whether it denied our access or denied having the records we needed. We decided to ask a local lawyer to confirm this and help us gain some clarity. With the local lawyer being a familiar face, speaking in a local dialect and easing communication, he was able to get the files we needed. Oftentimes getting help from local counsel is the best way to getting the evidence you may require. Handling Cross Border Disputes CONTACT Chris Helmer, Partner Miller Nash Graham & Dunn LLP 3400 U.S. Bancorp Tower, 111 S.W. Fifth Avenue, Portland, Oregon 97204 Tel: 503.224.5858 www.millernash.com I THINK THE BEST WE CAN DO WITH CROSS BORDER DISPUTES IS TO HAVE AN IDEA OF THE KIND OF THINGS THAT ARE REGULATED, AS OPPOSED TO WHAT THE REGULATIONS PRECISELY SAY. Could you describe to me the toughest aspect of handling cross border disputes? I’d say the difference in culture and communication. Every country and its culture is different, so you really have to learn a different way of approaching people, or you have to adjust your perception when someone acts in a particular way which has a meaning in one culture, but a very different meaning in another culture. In essence, there is just a lot to learn about people. Are there any difficulties in regards to the regulations in these different jurisdictions? I always seek local counsel if I need to know specifics on these issues. I think the best we can do with cross border disputes is to have an idea of the kind of things that are regulated, as opposed to what the regulations precisely say. So, for example, we know that 90 Expert Insight JUL 2019