International Litigation

Global Perspectives on International Litigation

Litigation is the structured resolution of disputes through courts and remains a cornerstone of legal systems worldwide. While arbitration and mediation have gained popularity, particularly in cross-border contexts, litigation remains an essential tool for enforcing rights, protecting investments and shaping commercial behaviour.

International litigation introduces added complexity, including jurisdictional questions, enforcement of judgments across borders, discovery constraints, sovereign immunity and conflicts of law. As such, it requires not only mastery of procedural rules, but also tactical intelligence, diplomatic sensitivity and cross-cultural competence.

This foreword introduces the International Litigation Practice Area Guide by exploring key issues in global civil litigation, mapping the challenges faced by litigants and practitioners, and previewing themes addressed in the following sections.

What Is International Litigation?

International litigation refers to legal dispute resolution that spans multiple countries, involving parties based in differing jurisdictions. For lawyers engaged in cross-border disputes, it encompasses the strategic handling of complex procedural, jurisdictional and substantive legal issues across national boundaries.

These cases may involve commercial contracts, tort claims, enforcement of foreign judgments and regulatory actions. They often require navigating conflicting legal systems, languages and cultural norms.

For international litigants, whether individuals, corporations or counsel, the key challenges include determining the appropriate forum, addressing issues of applicable law and ensuring judgments are enforceable abroad. Effective international litigation requires a thorough understanding of private international law, including doctrines, such as forum non conveniens and rules governing the service of process abroad and the collection of evidence.

Ultimately, success in international litigation hinges on careful coordination between legal teams in multiple jurisdictions, proactive risk assessment and a nuanced appreciation of the legal and commercial stakes involved in resolving cross-border disputes.

Jurisdiction: The First Battle

In cross-border disputes, the question of where to sue and whether a particular court has jurisdiction determines the trajectory of the entire case.

Forum selection clauses, especially in cross-border contracts, are routinely litigated. While many countries honour choice-of-court agreements, some impose public policy constraints. Therefore, parties must anticipate whether a forum clause will be enforced or challenged on such grounds as lack of consent or unfairness.

In practice, international litigators often advise clients not only on the legal merits, but also on forum strategy, evaluating such factors as court efficiency, judicial independence, evidentiary rules, costs and the likelihood of enforcement.

Role of Forum Non Conveniens in Cross-Border Disputes

Jurisdictional rules vary widely across legal systems. In civil law countries, jurisdiction often hinges on the defendant’s domicile or the place of performance of the contract.

Common law jurisdictions may offer broader or more flexible doctrines, such as forum non conveniens, where a court declines jurisdiction over a case, even if it has proper jurisdiction, because another court is deemed a more appropriate or convenient forum.

Service of Process Abroad & Evidence Gathering

Once jurisdiction is established, cross-border litigants face the procedural complexities of serving process and gathering evidence internationally.

The Hague Service Convention and Hague Evidence Convention provide the necessary international legal framework, but implementation can be slow and unpredictable. In countries not party to these treaties, service may require diplomatic channels or letters rogatory.

Evidence gathering is also jurisdiction-sensitive. US litigants, for example, often rely on 28 U.S.C. § 1782 to obtain discovery from persons or entities “found” in the US for use in foreign proceedings, and the code is becoming a tool with increasing global relevance.

By contrast, civil law jurisdictions generally restrict pre-trial discovery, emphasising court-led evidence production. Navigating these procedural asymmetries requires expertise in both domestic and international litigation.

How To Enforce a Foreign Judgment

Winning a case in one country does not guarantee that a judgment can be enforced in another. The recognition and enforcement of foreign judgments is a cornerstone issue in international litigation, yet it remains one of the most fragmented areas of cross-border legal practice.

Unlike international arbitration, which benefits from the New York Convention (recognised in more than 170 jurisdictions), court judgments lack a comparable global enforcement treaty. Bilateral and regional arrangements, such as the Brussels I Recast Regulation in the EU or the Hague Convention on Choice of Court Agreements (2005), offer partial solutions, but the landscape remains uneven. These nuances highlight the stark differences between arbitration and litigation.

As a result, litigants must plan an enforcement strategy at the outset. Key considerations include:

• Whether the target jurisdiction recognises foreign judgments.
• Whether reciprocity is required.
• Local grounds for refusal, such as due process violations and public policy concerns.
• Asset protection and pre-judgment remedies, such as freezing orders and Mareva injunctions.

Successful cross-border litigators must combine legal expertise with strategic timing to ensure that favourable rulings translate into tangible outcomes.

Parallel Proceedings & Anti-Suit Injunctions

Cross-border disputes often give rise to parallel proceedings, which are separate yet related cases in differing countries involving the same facts or parties. This can lead to tactical manoeuvring, forum shopping and jurisdictional disputes.

Courts in some common law jurisdictions may issue anti-suit injunctions to restrain foreign proceedings deemed abusive or contrary to contractual agreements. Others, particularly in civil law jurisdictions, view such measures as an infringement on sovereignty.

Managing parallel litigation involves striking a balance between procedural efficiency and legal rights and requires close collaboration between legal teams operating under varying legal systems.

Litigation Funding & Cost Considerations

International litigation is expensive. Legal costs, court fees, expert witnesses, translations, travel and enforcement add up quickly. In some jurisdictions, the losing party is required to pay the winner’s legal fees, while in others, each side bears its own costs.

To address these barriers, third-party litigation funding is gaining ground globally. Commercial litigation funders evaluate the merits of a case and agree to finance it in exchange for a share of the proceeds. While this model was once confined to common law countries, it is increasingly recognised in civil law jurisdictions, albeit with varying levels of regulation.

Similarly, contingency fees, success-based billing and insurance-backed risk coverage are evolving mechanisms that enable parties to pursue complex claims without incurring upfront capital.

For cross-border counsel, understanding and advising clients on cost models, as well as funding options, is now an integral part of cross-border litigation strategy.

The Role of Sovereigns & Investor-State Disputes

Not all litigation involves private actors. Increasingly, states are parties to international disputes, whether through commercial litigation involving state-owned enterprises, act-of-state issues or investor-state claims.

While many such disputes are handled through international arbitration under the ICSID Convention or UNCITRAL Arbitration Rules, state litigation in national courts is far from rare. It involves specific doctrines such as:

• Sovereign Immunity: Whether a state can be sued in a foreign court, and if so, under what exceptions.
• Diplomatic Immunity: Considerations for Embassies, Diplomats and International Organisations.
• Public International Law Defences: Invoked by states to contest jurisdiction, responsibility or enforceability.

Lawyers involved in these cross-border cases must navigate both national law and public international legal frameworks, often with significant political and reputational stakes.

What is Investor-State Dispute Settlement (ISDS)?

Investor-State Dispute Settlement (ISDS) enables foreign investors to initiate claims directly against a host state when they believe their investment rights under an international agreement have been infringed upon.

Unlike traditional state-to-state dispute resolution, ISDS provides a neutral forum, often through international arbitration, where investors can seek compensation without relying on their home government for support. This mechanism is especially common in bilateral investment treaties (BITs) and free trade agreements.

Investor-State Dispute Settlement Process Explained

Key steps in the ISDS process include:

• Notice of Intent: The investor formally notifies the host state of the dispute and its intent to seek arbitration.
• Cooling-Off Period: A mandatory waiting period (typically 3–6 months) allows for negotiation or amicable settlement.
• Arbitration Commencement: If the dispute remains unresolved, the investor initiates arbitration under a specified set of rules, such as the ICSID Convention and the UNCITRAL Arbitration Rules.
• Tribunal Formation: An independent arbitral tribunal is constituted to hear the case.
• Award & Enforcement: The tribunal issues a binding decision, enforceable under international conventions.

Technology, Remote Proceedings & Global Accessibility

The COVID-19 pandemic accelerated the digitisation of litigation worldwide. Virtual hearings, electronic filings, online witness testimony and AI-assisted case management are now embedded features of many court systems.

This technological leap has significantly aided international dispute resolution, where parties, evidence and legal practitioners are dispersed across borders. As courts refine hybrid models and adopt e-litigation platforms, accessibility to justice is increasing, albeit unevenly across regions.

Moreover, digital tools are helping cross-border litigators manage complexity, from e-discovery platforms that handle multilingual document troves to predictive analytics used in assessing forum risk. However, they also raise new questions about confidentiality, cyber risk and digital evidence authentication, areas that are now central to cross-border litigation strategy.

Toward Global Convergence?

Despite divergences in procedure, the practice of international litigation is witnessing gradual convergence in certain principles, driven by harmonisation efforts, common commercial standards and judicial dialogue.

Conventions such as the Hague Judgments Convention (2019), which aims to create a framework for the global recognition and enforcement of civil and commercial judgments, signal a potential shift toward broader alignment. Although adoption remains limited for now, the trajectory is clear.

Professional bodies, judicial exchanges and global law firms are also contributing to the development of shared best practices, particularly in such complex fields as financial litigation, class actions and environmental torts.

Still, cultural, procedural and structural differences remain profound, reinforcing the critical role of local expertise in executing cross-border litigation strategies.

Conclusion: A Discipline of Precision & Global Awareness

International litigation stands at the intersection of law, diplomacy and commerce. It is a discipline defined by precision, resilience and the ability to adapt to differing systems, languages, timelines and expectations.

Whether representing plaintiffs or defendants, states or corporations, international litigation counsel must be tacticians and bridge-builders, translating national legal frameworks into internationally coherent strategies.

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