International Arbitration and Litigation Strategies国际商事仲裁和诉讼策略.ppt

INTERNATIONAL ARBITRATION and LITIGATION STRATEGIES: ARBITRATION vs. LITIGATION  Malcolm S. McNeil, Partner Robert F. Kull, PartnerCarlsmith Ball LLP Los Angeles, California October 30, 2007 THE BATTLE OF LAWS AND JURISDICTIONS INTRODUCTION One of the essential functions of a contract is to provide a means for the enforcement of the parties’ promises in accordance with the terms of their agreement. In the context of international contracts, issues of where and how an agreement may be enforced are key. Uncertainty as to what law will apply in the event of a dispute and what forum will be available for its resolution can be reduced by advance planning. Such planning affords the international practitioner an opportunity to both add value as well as manage client expectations with respect to disputes that may arise. Nonetheless, even with careful planning, there are limits to the extent that uncertainty can be reduced: Contractual choice of law and forum selection clauses may or may not be honored by the forum in which a dispute is heard due to the fact that each forum has its own jurisdictional rules, some of which cannot be overcome by a contractual choice. Likewise, forums will apply their own procedural requirements and honor the parties’ chosen remedies in conformance with what is acceptable in the jurisdiction of the forum. CHOICE OF LAW Where the parties have made a choice of law to govern in the event of future disputes, the question remains whether that choice will be respected by the forum charged with resolving the dispute. Many jurisdictions, including the United States, allow contracting parties to choose the law applicable to govern their contractual rights and duties. In the United States, most states decide choice of law issues in accordance with the Restatement 2d, Conflicts of Law § 187(a)-(b), which provides: (1) The law of the state chosen by the parties to govern their contractual rights and duties will be applied if t