Commercial Litigation Research Articles

Pushing the bar – elite law firms and the rise of international commercial courts in the world economy

In the last thirty years, international commercial courts (ICCs) have emerged around the world. ICCs offer adjudication in international commercial disputes. They are not creatures of international law – as their name may suggest – but specialized domestic courts embedded in national legal orders. The rise of ICCs is remarkable in that scholars expected commercial arbitration to gradually displace litigation in the twenty first century. What drives the creation of ICCs? Legal research suggests that ICCs are a manifestation of a new era of assertive unilateralism in global governance. Scholars point to states’ geopolitical motives, backlashes against private authority in the form of arbitration, and economic statecraft. Drawing on the New Interdependence Approach, this study argues that most ICCs are the result of policy entrepreneurship of elite law firms in the pursuit of growing the global market for commercial litigation. Depending on the legal-political context, they forge coalitions with domestic judiciaries or political leaders to advance ICC projects. The study highlights deep-rooted changes in the global dispute resolution landscape, the important role of commercial law in International Political Economy (IPE), and points to the mostly overlooked significance of law firms and judiciaries as architects of global economic governance.

INTERNATIONAL COMMERCIAL MEDIATION: INTERNATIONAL RECOGNITION AND ENFORCEMENT OF MEDIATION AGREEMENTS

Global economic output has increased dramatically due to an increase in cross border trade, the rise of multinational corporations and globalisation.
 The globalisation of trade resulted in an increasing interaction between different cultures and legal traditions with different value systems and philosophical foundations, leading to increased dispute potential which could eventually develop into conflict.
 The default setting for conflict resolution is widely recognised as judicially sanctioned dispute resolution, otherwise referred to as litigation. Commercial litigation processes are, however, getting more costly and burdensome.
 Commercial disputes are furthermore becoming more complex because of the globalised trade landscape and increasing cross-border mobility. This poses unique challenges for litigants and courts. Typical problems encountered include governing law issues, enforcement issues, differing national administrative requirements and legal processes. Dispute resolution by means of litigation is subject to intrinsic characteristics exacerbating the complexity of cross-border disputes. In the EU member states for instance, it takes between one hundred and three hundred days to obtain a first- instance judgment in civil proceedings.
 

Reform Direction and Development Prospects of Cross-Border Civil and Commercial Litigation in the Guangdong-Hong Kong-Macao Greater Bay Area: Under the Belt and Road Initiative

Reform Direction and Development Prospects of Cross-Border Civil and Commercial Litigation in the Guangdong-Hong Kong-Macao Greater Bay Area: Under the Belt and Road Initiative

De-Infiltration of Governments in Commercial litigation in the Framework of Multilateral and Regional Agreements

De-Infiltration of Governments in Commercial litigation in the Framework of Multilateral and Regional Agreements

Navigating the New Era: the emergence of China’s international commercial courts

ABSTRACT Alongside China’s increasing efforts to update its legal regime facilitating the ‘One Belt and One Road Initiative’ and strengthening foreign-related rule of law, China’s Supreme People’s Court (SPC) and some lower courts are playing a vital role in modernizing international commercial litigation. The SPC, leading lower Chinese courts, has been zealous in reforming international commercial litigation, and piece-meal measures were adopted over the years. The most salient step is the establishment of international commercial courts (CICCs), accompanied by the use of such mechanisms as anti-suit injunctions, forum non conveniens, and de jure reciprocity favouring foreign judgments recognition in China. These judicial efforts and the expected moves alike will definitely contribute a lot to internationalization of China’s international civil procedure towards the global mainstream. However, the systemic deep judicial and legislative reforms are both needed for China’s international commercial litigation to go global and moreover, the process shall be conducted with an eye towards keeping it current and enhancing its relevance to the realities of today’s dispute resolution world.

Comparative Notes on the use of Commercial Litigation Funding in Insolvency: Australia and South Africa

This article explores the application of third-party litigation funding (TPLF), also referred to as commercial litigation funding, in insolvency litigation by way of a comparison of the legal position in Australia and South Africa. It proposes that TPLF could offer significant benefits by enabling liquidators of insolvent estates to pursue and enforce claims through civil proceedings with the aim of swelling the assets of the insolvent estate, ultimately to the advantage of the creditors. Since both jurisdictions share elements of English law, both were confronted with the English law doctrines of champerty and maintenance initially being regarded as impediments to the development and/or use of TPLF. Currently, and mainly due to developments in terms of case law, the concept of TPLF has in principle been accepted in both jurisdictions. However, in Australia the development originally transpired in the field of insolvency litigation. In South Africa the context was more in the confines of general litigation. It is submitted that the South African system could benefit by considering various aspects of the Australian system regarding the use of TPLF in insolvency litigation. It remains a question whether or not the respective systems would benefit by adopting comprehensive regulatory measures to regulate TPLF.

The principles of justice and reasonable period in commercial procedure: the impact of the provisions of the European convention on human rights and the decisions of the European court of human rights on their implementation

The article is devoted to the study of the principles of judicial procedure enshrined in the European Convention on Human Rights, their impact on the implementation of commercial procedure in Ukraine, in particular, the standards of fair justice. The purpose of the article is to generalize and systematize approaches that exist in legal doctrine and law enforcement practice regarding the subject of research. The study of the principles of judicial procedure enshrined in the European Convention on Human Rights, the directions of their impact on the implementation of economic justice in Ukraine, including the standards of fair justice, is necessary and relevant for the further reform of economic procedural legislation.
 The article examines in detail the issue of the implementation of the principles of justice and reasonable terms of justice in economic litigation based on already existing scientific developments and current legislation. The methods used in the research allowed the author to come to the following conclusions. Legal mechanisms that ensure the implementation and protection of the evolutionary ideas of the fairness of justice are of crucial importance for the understanding by the participants of court proceedings of the very content of the economic process, the observance by the court and other participants of economic proceedings of the rights and freedoms established by law, the decision-making algorithm, which must meet the criteria of transparency and honesty and expediency, as well as understanding the controllability of the specified processes. As for the principle of a reasonable period, based on the positions of the researchers, it was determined that a reasonable period is considered as an objective (i.e. impartial, free from biased and subjective attitude) period necessary for the performance of all necessary procedural actions in economic litigation. A reasonable term is a period of time when court proceedings are objective in nature without significantly exceeding the framework established by law. The results of the research show that the practical judicial guidelines on the application of the principles of the European Convention on Human Rights and its fundamental freedoms, which are contained in the decisions of the European Court of Human Rights, contribute to the consistency of the approach of various national legal systems to the application of justice standards, including in commercial litigation.

Developing Chinese Private International Law for Transnational Civil and Commercial Litigation: The 2024 New Chinese Civil Procedure Law

On 1 September 2023, the Standing Committee of the National People’s Congress amended the Chinese Civil Procedure Law which will come into effect on 1 January 2024 (‘the 2024 CPL’). The 2024 CPL brings significant changes to the entire procedure of transnational civil and commercial litigation in China covering jurisdiction, service of process, the taking of evidence abroad, and the recognition and enforcement of foreign judgments. It is critical for foreign states, courts, and parties which conduct business in China to understand this new legal development and to prepare for the changes. Adopting comparative-law and empirical research methods, this commentary aims to explain the new provisions for transnational civil litigation in the 2024 CPL and how they may be implemented in practice.

러시아연방의 민사소송에서 보전처분과 집행에 관한 연구

The Russian Federation is a geographically neighbor country of the Republic of Korea, but it is a country with little sense of distance due to its history, culture and national system. After the collapse of the Soviet Union, Korea established diplomatic relations with the Soviet Union on September 30, 1990 due to Korea's northern policy and given that the volume of trade between Korea and Russia has been steadily increasing over the past 33 years, the volume of trade in human and material between Korea and Russia will continue to increase in the future.
 Until now, comparative legal exchanges in the legal aspect of Russia in Korea have been insignificant, so Russian law in Korea is a very unfamiliar area in comparative law studies. This paper will explain how the Russian Federation has reorganized legal system for civil litigation through system transition after the collapse of the Soviet Union.
 Today, in the Russian Federation, civil and commercial litigation are concepts of distinction rather than subsidiarity, and both have different applicable laws and exclusive jurisdiction of the courts regarding the litigation procedure. Therefore, the current litigation system for judicial disputes in the Russian Federation is divided into a civil litigation system and a commercial litigation system under a dual system (dualism), and in each area, civil litigation legal relations and commercial litigation legal relations arise according to the relevant laws governing the matters concerning the procedures for disputes to be resolved through courts. The system of provisional disposition and enforcement in civil and commercial proceedings in the Russian Federation is based on the judicial acts of the courts, and there are court decisions (Определе ние суда) and court judgments (Судебный вердикт) as types of judicial acts of the courts regarding the provisional dispositions and enforcement systems. In the case of the preservative disposition system, it is based on a court decision, and the enforcement system is based on a court order or execution judgment of the court.
 Execution in civil and commercial proceedings in the Russian Federation is classified into immediate execution (Немедленное исп олнение) and compulsory execution. In the system of compulsory execution, the institution that actually implements compulsory execution is the Judicial Execution Service, which is an administrative body separate from the courts, under the Ministry of Justice of the Russian Federation. In case of immediate execution in civil and commercial cases, it can be executed by the judicial act of the court according to the related litigation law, whereas compulsory execution is a system that is operated completely separate from the jurisdiction of the court and the litigation law. Therefore, in the remedy of rights related to compulsory execution, the judicial enforcement agency is the actual party as the collector, the person to be collected, and the implementer of the actual compulsory execution. The object of execution and all acts related to compulsory execution by the judicial enforcement agency are separated, and the former must proceed with a lawsuit for the return of unjust enrichment against the object of excessive execution through a civil or commercial lawsuit. In the case of infringement of rights infringed by the illegal compulsory execution of the judicial enforcement agency, a lawsuit for compensation for damages (state compensation) for the illegal acts of the judicial enforcement agency must be carried out through administrative litigation.

Research on Regulations of Third-Party Funding in IIA

In recent years, third-party funding (TPF) in international investment arbitration (IIA) has made a significant impact both in theory and practice. Nowadays, a Chinese law firm (the "PRC law firm") acted as the sole agent in the international investment arbitration case AsiaPhos v. China and the Chinese party won the lawsuit. One of the petitioners in the suit, AsiaPhos (Asiahua Group), claimed that its board of directors and its subsidiaries had entered into a formal financial aid agreement with a US-based fund, namely TPF. The financial support offers an opportunity to approach justice to applicants in economic distress or intending to share arbitration risks and also produces deterrence to the host state from any improper behaviors harming the interests of investors. However, on the one hand, due to commercial litigation, the arbitrators and investors will have a conflict of interest, on the other hand, third parties and investors usually live abroad, where governments lack the relevant information and competence that require international cooperation. In addition, the host country, especially the developing country, will also face the high cost of investment arbitration, and solving the problem must be needed for relevant mechanisms. This article discusses the application and development of TPF in IIA and analyzes the negative impact of TPF based on some legal issues, and then proposes the relevant rules and policy. On this basis, the study also provides suggestions for the practice of TPF from the perspective of the Chinese party to promote the development of TPF and puts forward advice for international investment rule-making balance in China.

Application of specialised knowledge in proceedings concerning defence land

The article is devoted to the analysis of proceedings relating to defence land. Such proceedings are connected with the return of illegal use of state-owned land in accordance with its intended purpose. Based on a study of the Unified State Register of Court Decisions, it has been established that at least five lawsuits per region are filed annually by municipal maintenance departments representing the Ministry of Defence of Ukraine with commercial courts. As a result of the resolution of court disputes in this regard, only one third of the claims are satisfied. The reasons for this state of affairs have been analysed.
 Attention is drawn to the claims, which differ in each case, despite similar situations of land misappropriation. The author also focuses on the evidence used in the process of proof in this category of cases. The author analyses the main issues that are resolved in the course of commercial litigation.
 The article describes forensic examinations which are often appointed in proceedings on defence land. The author provides a substantive analysis of these examinations. The author formulates the main problems which arise during the appointment and conduct of forensic examinations, including unjustified rejection of applications for the appointment of examinations, and use of legal expertise conclusions.
 The study of this category of land disputes has revealed that such disputes are most often resolved in commercial proceedings. Among the expert examinations, plaintiffs most often refer to the following: land technical, land valuation, expert examination to determine the compliance of the documentation on the valuation of a land plot or rights to it with the requirements of regulatory legal acts on property valuation, and expert examination on land management. The findings are of interest to commercial law practitioners representing the Ministry of Defence of Ukraine in order to improve their professional activities.

ROLE OF ADR IN RESOLVING DISPUTES OF INDIAN INFRASTRUCTURE SECTOR

In this decade, Government of India has taken up infrastructure developments of huge magnitude under Public-Private Participation (PPP) in the areas like irrigation, roads, ports, and power projects, which need abundant private sector investments. Development of infrastructure in a country like India involves large number of projects being carried out across the country amidst various economic, political, social & climatic conditions, and challenges. Many of these projects have often suffered cost and time delays due to disputes over land acquisition, grants for environmental and forest clearance, and other approval. Disputes arising in the Infrastructure Sector been a toll on the overall growth and development of Indian infrastructure projects resulting in either delayed completion or abandoning the project itself. Many foreign companies are willing to invest and set up joint venture projects in India but they apprehend that in case of any dispute the Indian courts would take long to decide the claim which in turn will lead to increase in overall cost of the project. Thus, it can be said that slow dispute resolution process prevailing in the country is keeping the foreign investment at bay. The shortcomings of civil or commercial litigation have come to the forefront in the developing nations in the contemporary period which has necessitated the rise of alternate dispute resolution mechanisms all over the world. It is necessary to cut down the demand for adjudication, through arbitration and other ADR mechanisms. DR provisions in the ‘Project Concession Agreement’ may not be sufficient to manage the evolving dispute that is expected to be encountered at different stages of the project. This paper explores the various dimensions of disputes arising out of infrastructure construction industry and their possibility of being resolved amicably by alternate modes of dispute resolution. This paper tries to clarified the critical issues affecting current infrastructure PPP practice, thereby enhancing infrastructure PPP practitioners understanding of potential barriers to successful infrastructure PPP in Dispute Resolution.

러시아연방의 행정쟁송 체계와 구조

This paper provides a comprehensive analysis of Russian administrative litigation, incorporating legislation, case law, and academic scholarship, in order to introduce the system and structure of administrative litigation in the Russian Federation. Indeed, the structure of legal relationships in Russian administrative law is completely different from that in South Korea's administrative law, so there are many aspects that can be compared between Russian administrative litigation law and South Korea's administrative litigation law. Moreover, since administrative litigation law in all countries is based on administrative law, the administrative litigation law in the Russian Federation introduced in this paper can also be compared with South Korea's administrative litigation law.
 Currently, the Russian administrative litigation system consists of administrative proceedings and administrative lawsuits. The administrative proceedings system has evolved based on the administrative proceedings system in the Soviet Union, while the administrative lawsuits system has been established in a completely different form from the administrative lawsuits system in the Soviet era. After the collapse of the Soviet Union, the Russian administrative litigation system treated administrative lawsuits as a special type of civil or commercial litigation, while categorizing administrative proceedings as a separate remedy under administrative law. However, with the enactment and implementation of the Administrative Lawsuit Law in 2015, administrative lawsuits were separated from civil and commercial lawsuits and established as an independent litigation system, establishing its own type of lawsuit, alongside the types of lawsuits enumerated in the Russian Constitution (constitutional lawsuits, civil lawsuits, criminal lawsuits, commercial lawsuits, and administrative lawsuits).
 Administrative litigation in the Russian Federation refers to the administrative remedy under administrative law, which is carried out by the administrative adjudication committee established by law for administrative agencies or individual administrative systems. One characteristic of Russian administrative litigation is that the appellate body that can cancel or invalidate administrative decisions is the administrative adjudication committee of the superior agency or individual administrative system established by law, and the administrative agency cannot review its own administrative decision. In the case of administrative litigation, it is a full trial based on a lawsuit by the parties involved. The type of administrative litigation is distinguished based on whether the dispute has economic value and whether the administrative action is illegal. In the former case, it is classified into general administrative litigation and administrative commercial litigation, based on the existence of economic value in the administrative dispute. In the latter case, it is classified as administrative violation litigation based on whether there is illegality in the administrative action that imposes legal sanctions for the administrative punishment of illegal administrative acts by administrative authorities. Therefore, the types of administrative litigation in the Russian Federation are composed of 1) general administrative litigation for disputes between administrative entities regarding rights and obligations under administrative law, 2) administrative commercial litigation for disputes regarding economic rights and obligations under administrative law, and 3) administrative violation litigation for administrative punishment of illegal administrative acts by administrative authorities as a lawsuit material.
 The characteristics of Russia's administrative litigation system are as follows. First, in administrative adjudication, administrative agencies are bound by their own administrative decisions and cannot review them on their own.

International Commercial Litigation and Arbitration Research Essay

International Commercial Litigation and Arbitration Research Essay

International Commercial Litigation and Arbitration Research Essay

Arbitration is an alternative dispute resolution method (ADR) and has now become one of the preferred mechanisms chosen by parties to settle disputes of a commercial nature. There is no proper definition of arbitration and unlike court proceedings; it is a voluntary agreement agreed to by the disputing parties and the decision also known as the arbitral award is binding upon them. Arbitration is quasi-judicial in nature and an arbitrator often referred to as a private judge is a person who adjudicates on disputes submitted to him or her by the parties.1According to Sir John Donaldson, ‘arbitrators and judges are partners in business of dispensing justice, the judges in the public sector and the arbitrators in the private sector.’2 Nowadays, arbitration is an emerging trend and the popularity of such a system can be attributed to many advantages it offers compared to litigation. The main fundamental features of arbitration among many others are flexibility, confidentiality, impartiality, neutrality and party autonomy.

Recent Efforts in China's Ambition to Become a Centre for International Commercial Litigation

Recent Efforts in China's Ambition to Become a Centre for International Commercial Litigation

Mind the settlement gap: a call for more effective judicialization of international commercial arbitration

Abstract Despite pervasive judicialization along the lines of public-court litigation, arbitration has largely missed the ‘managerial turn’ in judging that since the 1970s has pushed judicial systems worldwide to shift focus from adjudication to settlement facilitation. Over the past two decades, a transnational consensus appears to have emerged that settlement facilitation is not only compatible with the arbitrator’s mandate but can actually sharpen arbitration’s promise of efficient dispute resolution. But recent statistics continue to confirm anecdotal evidence of a gap in settlement rates between commercial litigation and arbitration, suggesting that arbitrators still fall more into the mould of a passive umpire than a proactive settlement facilitator. This article sheds light on structural barriers to settlement facilitation in the procedural architecture of institutional arbitration rules, explores causes for the lingering underdevelopment of settlement culture in the community of arbitrators and investigates arbitration’s impact on the parties’ settlement negotiation dynamics when ‘bargaining in the shadow of the law’. Informed by insights from behavioural economics, the author develops a blueprint for building settlement facilitation more explicitly into institutional rules and makes the case for switching the default from requiring parties’ express consent to providing for settlement facilitation by arbitrators on an opt-out basis.

Research on the Diversified Resolution Mechanism of Foreign-related Civil and Commercial Disputes under the Opportunity of "One Belt and One Road"

This manuscript discusses the diversified resolution mechanism of foreign-related civil and commercial disputes under the opportunity of "One Belt and One Road". Civil and commercial cases themselves can reflect a country’s economic development and market operations, while foreign-related civil and commercial cases are difficult for non-professionals to comprehend thoroughly due to the international nature, complexity, and non-recurring nature of their adjustment targets. Statistical analysis of this type of cases. Jurisdiction in international civil and commercial litigation is the scope of authority and legal basis for a country's courts to hear foreign-related civil and commercial cases. This paper gives the novel suggestions considering the "One Belt and One Road".

Dispelling health and safety myths

In this article, Adam Bernstein spoke to James Lowe, who is a regulatory partner in the commercial litigation department at Wright Hassall, about the health and safety myths that he regularly has to confront.

To Tax or Not To Tax: Why Won't the Supreme Court Answer the Question?

Gaming Law ReviewVol. 26, No. 7 ArticlesTo Tax or Not To Tax: Why Won't the Supreme Court Answer the Question?Heidi Mcneil Staudenmaier and Marsha CottonHeidi Mcneil StaudenmaierHeidi McNeil Staudenmaier is the Partner and Coordinator of Native American Law and Gaming Law Services for Snell & Wilmer, L.L.P., where she is based in the firm's Phoenix, Arizona, USA office. She is Past President of the International Masters of Gaming Law and Executive Editor for Gaming Law Review.Search for more papers by this author and Marsha CottonMarsha Cotton is an Attorney in the Commercial Litigation Group at Snell & Wilmer, L.L.P. in Phoenix, Arizona, USA. She has experience advising gaming companies on various regulatory issues, including compliance with Arizona's sports betting laws. In law school, Marsha served as an Associate Editor of the Arizona State University Sports and Entertainment Law Journal.Search for more papers by this authorPublished Online:15 Sep 2022https://doi.org/10.1089/glr2.2022.0028AboutSectionsView articleView Full TextPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail View articleFiguresReferencesRelatedDetails Volume 26Issue 7Sep 2022 InformationCopyright 2022, Mary Ann Liebert, Inc., publishersTo cite this article:Heidi Mcneil Staudenmaier and Marsha Cotton.To Tax or Not To Tax: Why Won't the Supreme Court Answer the Question?.Gaming Law Review.Sep 2022.367-370.http://doi.org/10.1089/glr2.2022.0028Published in Volume: 26 Issue 7: September 15, 2022KeywordsU.S. gaming lawtax lawtaxgamingsovereigntyPDF download