Global Legal Insights 2021

In my preface to this book last year, written in the early months of the coronavirus pandemic, I anticipated a flood of litigation flowing from the consequences of national lockdowns. So far, the surge has yet to appear, at least partly because world economies have been propped up by governments through fiscal stimuli. However, this is perhaps not so surprising, as a similar delayed reaction followed the 2008 crash, before the surge arrived. Moreover, in London at least, where a large proportion of the cases are of an international nature, there has been a steady rise in new cases this year.
In the meantime, the exigencies of lockdowns have required many Courts to conduct hearings remotely, with the use of videoconferencing platforms such as Zoom, Skype and Teams. This has resulted in some humorous episodes; who can forget the Texan attorney's assurances to the Bench that, despite his appearance on screen, he was not in fact a cat! Such technical hitches have, however, been the exception and the general consensus appears to be that remote hearings work better than was expected. As a result, the changes in practices brought about in response to the pandemic seem set to persist, at least in part.
Whilst remote hearings can be more cost efficient, they do have their drawbacks, many of which are well known. However, perhaps the most serious casualty, which has passed largely unnoticed, is the lack of opportunity for parties to meet each other informally at Court. Ad hoc discussions during breaks at Court are well known to lead both to procedural compromises and settlements. In-person hearings are therefore desirable, at least from this point of view. Litigation from the bunker, by contrast, is less likely to generate settlements and the distance maintained through remote hearings can become more than just physical.
Such considerations can get lost when Courts set pre-trial and trial procedures and rules. In an ideal world, Court procedures, particularly those during the pre-trial phase, will encourage parties to commercial litigation to reach a settlement. The more rigorous the procedure, so the thinking goes, the more likely it is that parties will settle before trial. That said, the timing of settlements can often be dictated by extraneous commercial factors such as a change in commercial objectives or senior management, to name just two. Court rules need to be tailored to meet those commercial realities.
There has been very little research around the world on what factors drive settlement in commercial litigation, and how Court procedures can ultimately add to the cost of litigation by unnecessarily increasing the burden through the front loading of costs before a case settles. This is an area ripe for detailed research between international Courts and academics and one that the commercial world would be well advised to encourage, and even fund.
Against that background, understanding the strengths and weaknesses of procedural rules and practices, and learning from the Courts of other countries, will assist all those involved in civil justice to continue to improve and adapt our national systems. To that end, and to assist parties in deciding where to litigate, if they have a choice, this book aims to provide an insight into the Court systems and procedures of jurisdictions around the world, with a particular focus on practical considerations. I hope it is a useful guide for all lawyers who advise businesses that trade internationally.
Finally, I am grateful to all the contributors from across the globe for the clarity and expertise of their contributions.