Lawyer Monthly Magazine - July 2019 Edition

What is the best way to prepare for disputes that are internationally based? I think that is pretty much the same in any jurisdiction. But, I would add that you should prepare with the caveat that you know you are going into an international arbitration in a foreign country or going into a foreign court and so the process is likely to be very different. You need to learn the local rules. If you are going to court in the US, something that just happens to have a lot of international aspects to it, I would still say give yourself a lot more time than you normally would as, oftentimes, it is difficult for foreign clients to understand our process. If they don’t understand the process, you need to allow time to explain it to them and ensure they understand and know what they are getting into. Are there any US laws that can cause issues for those elsewhere? There are a lot of laws in the US where we have to question whether these laws can affect something overseas. Everybody knows about the Foreign Corrupt Practices Act. Someone can violate the Foreign Corrupt Practices Act in a foreign country but still make a company liable for it here. In essence, the US can 'reach across the border' and affect them by reason of affecting their parent company here in the US. There are also questions as to whether US antitrust laws or employment laws affect people overseas, so I think whenever you are dealing with a cross border transaction you always have to think about whether US law will have any implications. You usually have to think about the laws from each jurisdiction; for example, you should specify what law applies in a cross border transaction. Otherwise you won't know if it is the law from one party’s country or the law from the other party's country that governs. It could even be the law of the country where the transaction will be performed. So its best to clearly state what law govern in the contract. Still, in some countries, that specification will not be honoured when it comes to some subjects. For example, most countries will always apply all or part of their own employment law to an employee in their jurisdiction, even if the parties agreed on a different law. This is true in the US as well. LM PATRICK F. MCCANN Chris Helmer does primarily international and maritime work, both litigation/arbitration and transactional. Her 30+ years of litigation and arbitration experience puts her in a unique position to assist clients in contract drafting and assessing contractual risks. And that dispute resolution experience includes regular handling of the issues particular to cross- border and admiralty disputes that not every practitioner is accustomed to dealing with— service abroad, obtaining evidence abroad, jurisdiction over foreign parties for claims arising in faraway countries, vessel arrests and attachments, Customs, FCPA and export sanctions issues, and enforcement of international arbitration awards and foreign judgments. If a business plan or problem has a foreign component, Chris has likely dealt with it. THERE ARE A LOT OF LAWS IN THE US WHERE WE HAVE TO QUESTION WHETHER THESE LAWS CAN AFFECT ANYTHING OVERSEAS. 91 Expert Insight JUL 2019