United States: "Cross-Border Litigation"

Globalization has created new challenges for companies threatened by, or embroiled in, cross-border litigation. Assets and evidence, in the form of witnesses and documents, may be spread across multiple countries and legal systems. Judicial attitudes and procedures in these systems can vary as much as national political relations, on such key concerns as reciprocity in the recognition of judgments and assistance to courts or litigants seeking evidence for cases pending in the jurisdiction.

Efficiently managed litigation in, or involving the development of evidence from, multiple jurisdictions requires a mix of consistent case direction, curiosity and creativity. Whether the litigation will be a success may turn on the "devil" or the "opportunity" found in unexpected details. Consequently, attorneys managing cross-border litigation who rely on expert outside counsel should not only develop familiarity with the international process for gathering evidence in general, but also explore with expert local counsel the practicalities or details of practice in the relevant jurisdictions.

Obtaining Testimonial Evidence

Clearly, when seeking an understanding of the process for obtaining significant testimonial evidence abroad for use in U.S. litigation, or vice versa, the starting point for most cases will be the relevant treaty or conventions to which the countries at issue are signatories. The applicability of the treaty or convention provisions varies among signatories and must be determined and alternative methods for obtaining evidence should be considered. For example, in light of the general estimates of time for obtaining the requested information through the Letter Request process of the treaty or convention, managing counsel should explore whether a properly and carefully crafted letter rogatory request based on comity between the U.S. court as the requesting court and the receiving court, such as the High Court in the UK, might accelerate the process.

Significantly, the ability of cross-border litigants to obtain testimonial evidence can be driven as much by the relations between the countries, especially on the issue of reciprocity of judgments, as it is by the treaty or convention terms or the particular civil judicial procedures followed in that jurisdiction. The antipathy of international judicial systems to what is considered intrusive U.S.-styled litigation (and reciprocity in the recognition of U.S. judgments) can make its presence known in unanticipated ways.

Therefore, counsel managing cross-border litigation should first review the information available with the Department of State, Office of Consular Services for broad-stroke guidance. See http://bit.ly/2pdpuz2. Identifying and conferring with local counsel who have sophisticated litigation experience and familiarity with U.S. legal practice is invaluable. This will provide the necessary common ground for helpful discussions. Even in countries where there are great perceived affinities among the respective judicial systems, nothing should be taken for granted.

Common Law

Although the UK shares a common-law system with the U.S., and the two jurisdictions have a long history of mutually recognizing and enforcing their respective judgments, the UK is scrupulous, as a matter of statute and judicial temperament, about determining whether a UK company actually submitted itself to the jurisdiction of a U.S. court before recognizing any judgment against a UK company. See U.K. Companies Act 2006. Further, the differences in the practices of law and judicial procedures in the U.S. and UK, based on differing traditions and public policies, have resulted in a wide divergence of views as to the scope of permissible document discovery in civil proceedings.

This divergence can have an impact on the amount of cooperation provided, in particular with the scope of discovery when U.S. litigants seek evidence from a UK non-party resident or UK defendant with respect to such matters as taxes and other financial information.

The impact, if any, of the UK's membership and its current steps to exit from the EU on the process and procedures for gathering evidence obviously should be explored. Therefore, counsel managing cross-border litigation should discuss with expert outside counsel potential admissible evidence-gathering issues early in the litigation in order to develop a better understanding of the likely impact these restrictions may have on both the budget for the matter and the ability to meet the objectives of the client.

Some "details" can change the entire course of a case. For example, U.S.-style depositions can be arranged and conducted in the UK. Significantly, as permitted under the terms of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, some commonplace but important aspects of U.S. depositions may not apply under the rules in the UK.

Anticipating a contentious deposition of a solicitor in London a few years ago, we sought the appointment of a Queen's Counsel, sometimes referred to as a barrister who has "taken the silk," to preside over the deposition and rule on objections. Opposing counsel failed to anticipate that the scope of authority for the presiding Queen's Counsel appointed by the Queen's Bench Division of the High Court would include ruling on objections to questions seeking potentially attorney-client privileged communications and any resultant instructions by counsel not to answer. Our argument on the privilege objection, including the use of pertinent UK case law provided to us by a barrister we had instructed, was successful and the witness was instructed to provide the answer to that and a series of follow-up questions. The dispute was amicably resolved shortly thereafter.

Civil Code in Latin America

The taking of testimonial evidence under the Civil Code in most Latin American countries is quite different. Certain countries will permit counsel to swear witnesses before consular officers and take depositions in U.S. embassies using U.S. rules and court reporters. Such depositions will be necessarily limited to witnesses who voluntarily appear. The arrangements for such depositions require time-consuming coordination with the embassy, and usually long lead times, on top of the time required to make agreeable arrangements with opposing counsel.

On the other hand, some countries object to any witness being placed under oath and examined anywhere within the country except by a judicial officer, and treat a violation as a criminal offense. The State Department Office of Consular Services lists those countries. Enforcement of such laws restricting the swearing of witnesses and taking testimony varies from country to country. Local counsel must be consulted and, given the advances in technology, the swearing of witnesses and taking testimony may be possible. For example, we were able to make arrangements for voluntary witnesses to appear in the office of a Notary Public in their resident Latin American country. After being sworn by both the local notary and a U.S. notary, the witnesses testified via Skype and video-conference connections directly in an evidentiary hearing for a preliminary injunction. The translator and court reporter were in the courtroom in the U.S.

Obtaining testimony from a witness who will not voluntarily appear either in the U.S. or in his or her resident country is a much more difficult process. In that case, resort to the judicial power of the courts in the jurisdiction where the witness resides, either through the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, or the Inter- American Convention on Letters Rogatory for many Latin American countries. A significant consideration, beyond the time and effort necessary, is whether the U.S. Court will accept the testimony obtained by the court, especially a court in a Civil Code jurisdiction, for anything more than an affidavit used in connection with motion practice or with a summary judgment.

Typically, the witness appears in the court for examination on written questions that may be conducted by the judicial clerk instead of the judge. Counsel for the parties, admitted to practice before that court, generally are not permitted to ask questions themselves during the taking of testimony, but may be permitted to request follow-up questions beyond those specifically contained in the request for judicial assistance (or letter rogatory) or any questions posed by the clerk or the court at that time on the court's own initiative. There is no assurance that a verbatim transcript will be made. Rather, if any extensive statement is made by the witness to a particular question, the clerk will make a summary of the response.

This summary, in question-and-answer form, will be what is transmitted back to the requesting court through the relevant judicial assistance process set up by treaty between the two countries. There is also the real possibility that opposing parties will have vetted and helped prepare the response to the written questions provided by witnesses sympathetic to their case.

Documents and Parallel Litigation

Civil litigation in most Civil Code countries is conducted virtually exclusively in writing. A complaint must attach and refer to the written evidence compiled by counsel for the plaintiff. Motions and requests for relief must be in writing, with all the relevant documents to be considered by the court attached. This requires a huge amount of attorney time in preparation and review of documents, and judicial labor in examining the filings and ruling.

As a consequence, the authenticity of documents is very strict, especially with respect to copies of documents. Unlike U.S. authentication rules and practices, some Civil Code jurisdictions have very exacting technical rules on the admissibility of documents, including the presentation of summaries or testimony, and will not accept anything other than an original document, or the original underlying documents supporting a figure in a financial report. Counsel managing cross- border litigation seeking relief in a jurisdiction outside of the U.S., or coordination with actions taken in U.S. proceedings, should gain an early understanding of such evidentiary issues in order to properly plan a strategy to reach the client's objectives.

Defendants in Civil Code countries meet the complaint with technical arguments about the claim, with counter assertions supported by documents they have compiled, and with many attacks on the authenticity of the plaintiffs' materials. Oral argument is very rare and is generally no more than a judicial question-and-answer exercise. In the absence of the common law approach to legal questions, there frequently is little or no legal precedent in the form of a reported decision to guide the courts. The Civil Code courts rely on the statutory provisions and look to well-regarded legal treatises by legal scholars for support. The process can be very slow, even with the most diligent and professional of judges.

Counsel managing cross-border litigation need to appreciate these and other practicalities of the practice of law in other countries, especially when there are parallel litigations. For example on the macro level, fraud claims that would be only a civil matter in the U.S. are treated as criminal matters in Civil Code countries and may be brought only by a prosecuting or state attorney. Therefore, care must be taken in planning, through assessing the pros and cons of bringing such a claim, with all of its complexity, into what in the U.S. would be a civil dispute.

On the micro level, the U.S. system for service of motions and filings on opposing counsel by mail, fax, hand delivery or electronically, is not followed in a number of Latin American countries. For example, in Argentina, everything is filed only with the clerk of the court without any notice to any opposing party.

In the absence of any electronic docketing system, it is up to counsel to send someone to the courthouse (and to the particular room manned by the clerk holding that file) to review the physical file on a weekly (or more frequent) basis for anything filed by the opponent, or rulings or requests by the court. A log is maintained by the clerk on a daily basis, showing when each file was reviewed and by whom. If, for any reason, the file is not diligently requested and reviewed, there can be significant consequences in a matter. The failure to review the court file, as reflected in the clerk's log, and to comply with any time-sensitive order of the court, is no excuse for non-compliance.

In Latin American countries, Notary Publics play a significant role in creating the records and recording real estate transactions, agreements, settlements of dispute or wills that are frequently central to any significant litigation. Many of the documents that litigants depend upon to prove their case, either in that jurisdiction or in proceedings in the U.S., may be found in the records of a Notary Public. In most Civil Code countries, the Notary trains as a lawyer, but must choose whether to become a licensed lawyer or a notary; he or she cannot be both. In other jurisdictions, for example in Puerto Rico, a lawyer can serve in both roles.

Generally, the position of a Notary Public holds much more weight and responsibility than in the U.S. For example, they collect taxes on real estate transactions and affix stamps reflecting same on the transaction documentation quoted and recorded in specially numbered books. There is a system of "private" and "public" documents that will determine whether and how any litigant can access such information.

Statements under oath may be prepared and recorded by the Notary Public, remain unknown to certain parties (until the worst moment) and have a huge impact on the disposition of a proceeding. The Notary Public system is complicated and tradition-driven, having been developed over centuries of laws and practice. Counsel managing cross-border litigation, or seeking to obtain evidence from Civil Code countries with a Notary Public system, should explore with sophisticated local counsel early on how the structure and even nuances of the system might impact case strategy and plans.


Cross-border litigation is complex and expensive. In order to avoid surprises and plan successfully, counsel managing such litigation should engage expert outside counsel in a comprehensive discussion of the practicalities of obtaining and using evidence that may impact the case. Curiosity about how the legal system functions will aid in the development of proper plans to increase the likelihood of reaching desired results. When managing counsel becomes familiar with the legal processes in the foreign country, and the devil in the details of that system, the opportunity to develop creative solutions or to avoid pitfalls will markedly improve.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.