International business transactions often produce disputes which pit the parties against each other in an arbitration. A true international arbitration, with lawyers and litigants from across the globe, has some unique characteristics that an advocate must bear in mind.
Cultural Differences Among the Parties
The cultural differences among the parties, advocates, and tribunal often develop into the defining characteristic of an international arbitration. Approaches to and methods of resolving disputes vary greatly from one culture to the next. For example, a company involved in a dispute that includes players from more than one other culture should be aware that there may be deeply-seated prejudicial feelings between those other cultures which can dramatically impact parties' views of the dispute and impede resolution. Being alert to this possibility and becoming aware of particular cultural prejudices may be a key to crafting a successful resolution of the dispute, by working within the framework established by these prejudices, or by confronting the other entities and persuading them that the prejudicial views are not warranted in the given situation.
In addition to potential cultural biases, decision makers on the different sides of the issues often come from very different cultural backgrounds which can affect the individuals' attitudes and ideas about the dispute. Executives raised in the "corporate cultures" of different countries often view the same business situation very differently from one another. When the parties are not aware of the cultural peculiarities that may be at work, they may be unable to understand why an individual from a different culture might reject what seems from their own cultural perspectives to be a reasonable resolution of an issue. In these situations, it is useful to know in advance what culture-driven idiosyncracies might be at work, so that one can understand and accommodate them.
Cultural Differences Among the Advocates
Cultural differences affect not only the parties but also their advocates. Even if the proceedings are conducted in English and all of the advocates hale from common law countries with either British or American legal training, there often are distinct differences in styles and customs of advocacy. For example, while in American jurisdictions it is considered appropriate for attorneys to draft affidavits for witnesses who then review, edit, and swear to them; in commonwealth jurisdictions, sworn statements generally come directly from the affiant with only limited input and editing from counsel. Similarly, lawyers trained in British traditions may have notions of appropriate cross-examination that differ from American approaches.
Such substantive and stylistic differences between advocates should not have a detrimental effect on either party's presentation of its case when the advocates and the arbitration tribunal are experienced in resolving disputes between parties from different cultures and countries. Parties should be aware, however, of the potential for surprises and difficulties which can result from the differing backgrounds, and thus expectations, of the tribunal members, the parties, and the advocates.
The Vagaries of Distance
Arbitration in foreign jurisdictions involving parties from different countries can have significant logistical affects as well. When it comes to scheduling, advocates and clients alike should be aware of the difficulties caused by the different holidays recognized in different countries and among people of different cultures. For example, Malaysia has significant Muslim, Hindu, and Christian populations. Governmental and business entities observe most of the major holy days of all three of these religions. Also, various secular holidays are recognized. When one takes into account the holidays observed in the United States, Japan, Australia, England, Hong Kong, and Malaysia, there can be more than fifty potential holidays to remember in scheduling hearings and deadlines.
Additionally, when establishing deadlines for pleadings, motions, discovery requests and the like, one should consider the fact that the parties and advocates are likely to be working from several different time zones. Opposing counsel in Kuala Lumpur and Sydney, for example, are twelve to fifteen hours ahead of Eastern time in the U.S. When the players are scattered around the globe, often the only equitable thing to do is require that filings be served on opposing parties and Tribunal members worldwide by the same time, i.e., GMT. In establishing and meeting such deadlines, one should consider the effect of the International Date Line, and whether some of the parties use daylight saving's time. Finally, consider which parties will have the first opportunity to respond to filings and correspondence within their regular workdays; there can be advantages to being east or west of an adversary and/or the tribunal members. These advantages can best be realized, however, only if a party understands in advance the potential impacts of time and distance.
Technological Shortcomings
Litigating in the United States, we are accustomed to the relatively economical, efficient, and at times seemingly instantaneous support provided by our computer software experts, our document management and reproduction professionals, and our reporters/transcribers. These services are often not available in other countries, or are available only on a limited basis. Depending on the location of the proceeding, parties and legal teams may need to be entirely self-sufficient. Traveling with several similar computers and at least two printers is advisable. If equipment breaks down, it may not be easy to get reliable service in many countries, manufacturers' guaranties of world-wide service notwithstanding.
Rental equipment is often old and sometimes unreliable in many parts of the world. Even printer and copy paper can present a problem, as "standard" business paper in most countries is of a different size than in the United States. Additionally, "get me a copy of this file" can be easier said than done. During a recent Malaysian document production, we experienced delays of up to three days in photocopying single-box consignments of produced documents. Thus when we returned for the arbitration hearings, we rented a large copy machine (which itself was not easy to come by) and did our own document reproduction using locally-hired labor under our direction.
Detailed advance planning in all areas of litigation support is necessary, including: the comfort and size of available hearing facilities, the availability of temporary office space or hotel-suite workrooms, the availability of common office supplies, adequate storage space for documents, supplies, and equipment between hearings, and packaging and shipping of documents, supplies and equipment, including facilitating customs clearance.
Finally, in many commonwealth countries, legal proceedings are not routinely recorded other than through the notes of the participants. As a result, court reporting firms are often not available and must be brought in from elsewhere, if the parties want the proceedings transcribed. International dispute resolution can be rife with pitfalls both large and small. Careful planning can avoid most of the pitfalls, though lawyers will always need to be ready to improvise when confronted with the unavoidable.
G. A. Smith and T. P. Wilson
This article is intended to provide the reader with general information and should not be considered a substitute for specific legal advice or opinion. Readers are advised not to act upon this information without seeking professional counsel.
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