Litigation Committee conference session, Buenos Aires, May 2023: Latest legal issues in transnational litigation

Lucy Pert
Hausfeld, London

One of the panel discussions at the IBA Litigation Committee Forum in Buenos Aires, in May 2023, focused on the latest issues in transnational litigation.  The panel considered a wide range of topics. 

ChatGPT

Lucy Pert, of Hausfeld in London, began the session talking about the use of ChatGPT in litigation. She spoke about how ChatGPT, an advanced natural language processing tool, can analyse large amounts of data very quickly and accurately. This may have many applications for litigators, including legal research. The use of the tool is not without controversy; a judge in Columbia recently came under criticism for using ChatGPT in a judgment to decide whether an autistic child should recover costs of medical treatment. The judge defended his use of the AI tool by saying that he also consulted more traditional precedents and that the use of AI was equivalent to using a law clerk to conduct preliminary research. Lucy considered that it is unlikely that ChatGPT will replace lawyers anytime soon, but it is essential that lawyers learn to use this powerful tool, as well as other forms of artificial intelligence to enhance the practice of law. Lucy asked ChatGPT to compose a series of poems to introduce the other speakers.  

Claims against banks

Given the global economy’s size
Claims against banks now often arise
One nation’s law may differ from the next 
Leaving banks legally perplexed
Cross-border transactions add to the strain
As banks find themselves in legal terrain
Navigating through the legal abyss
Their reputations now at risk
Yet, through this legal maelstrom they tread
To safeguard their clients and keep their heads
Aiming to ensure that justice is done
And the law is followed by everyone

David Jandrasits of Schwärzler Rechtsanwälte, Liechtenstein, spoke about potential litigation arising from the collapse of Credit Suisse. He offered a chronological presentation of the most significant triggers of the breakdown including Greensill Capital, Archegos, and Retrocession payments. He covered the possible bases for claims, including in relation to AT1 bonds and the potential for state liability.  David was joined from the floor by Eric Buis of Luis Burgi, Switzerland, who had firsthand knowledge of claims against Credit Suisse. He shared some of his insights.

Andrew Kazin of Bronster LLP, New York, talked in broader terms about what a plaintiff should consider when litigating for or against large companies that have a presence in multiple countries.  This included the need to consider any applicable international agreements that govern what processes are likely to be permitted and the current diplomatic relations between the respective countries.  He suggested that it is helpful to consider the legal system used in each country in terms of access to a jury, the discovery process and any potential corruption in the country that would make enforcement difficult.  He also suggested that parties consider the accessibility of witnesses.  Finally, he highlighted the importance of developing a close working relationship with local counsel.

Antisuit injunctions

Raimundo Moreno of Cariola Diez Pérez-Cotapos in Santiago, spoke about antisuit injunctions. He pointed to the fact that the use of anti-suit injunctions has increased in recent years, particularly in the context of international disputes.  There has been some controversy surrounding anti-suit injunctions.  While they can be used to prevent forum shopping and ensure that disputes are resolved in the most appropriate forum, they can also lead to a potential infringement on the sovereignty of foreign courts and the principle of judicial comity. Raimundo spoke of a recent case in which his client faced an antisuit injunction in the US, attempting to remove the proceedings from Chile.  The difference in the local laws meant that removal to the US would have been fatal to his client’s case.  In the end, he prevailed and the antisuit injunction was not granted, however the proceedings highlighted the risk for litigants of foreign judges making decisions based on limited facts.

Service of process

In matters of international law
Serving papers can be quite a bore
But with the Hague Convention in play
The rules are clear and come what may
Justice can be served without flaw

Irene Arevalo Gonzalez of Gómez-Acebo & Pombo in Madrid spoke about practical issues with service of process in transnational litigation. She highlighted the risk to enforcement if there are irregularities. She went on to talk about the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents and EC Regulation 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents).  She spoke about the requirements for service through official bodies, the scope of service, the need for translations and other practical matters. 

US Chapter 11 process

In courtrooms far and wide
Chapter 11 is often applied
Beyond the borders of a land
Its power reaches like a hand

Raimundo spoke about the long arm of the US Courts when it comes to filing under Chapter 11.  The US Courts have been flexible in accepting jurisdiction over South American companies.  These companies file for a reorganization plan and, if confirmed by the court, the plan becomes binding on all creditors.  There have been cases when a creditor located outside the US has filed a claim against a debtor also located outside the US but who has filed for Chapter 11 in the US Courts. A party may find themselves in criminal contempt for disobeying such a court order.  

Finally, David spoke about the law relating to foundations and trusts in Liechtenstein. He discussed the practical issues arising in the context of international sanctions in connection with the war in Ukraine, given that Liechtenstein foundations are often used by wealthy Russians. He talked through a case-scenario which was typical of the kinds of litigation that he has been seeing in this area.    

As can be seen from above, the panel covered a lot of ground in an insightful whistlestop tour of current issues in transnational litigation.