Strategic considerations for cross-border disputes
Enforcing claims cross-border still needs to be
strategically planned, but is facilitated and eased by
international treaties.
Just because a potential legal dispute involves one or multiple foreign jurisdictions one
should not delay enforcement of claims. There are many legal instruments that regulate
and in many cases ease the assertion and enforcement of claims across national borders.
March 2017, Dr. Gösta Schindler
A multitude of international treaties and laws exist to regulate the legal relations between
nations. Pursuing or enforcing claims must therefore be strategically planned in cases
where a legal action may involve foreign jurisdictions – for instance because one of the
parties to the dispute resides abroad.
International relevance of a dispute – when asserting a claim or
enforcing the same
A legal dispute may have an international dimension for a number of different reasons. For
instance:
Scenario 1: The owner of an intellectual property right, e.g. a Union Trademark that claims
protection in all countries of the European Union, discovers that her trademark is being
used illegally both in Germany and in another EU country. As the infringer refuses to
voluntarily refrain from using the trademark, she now intends to bring legal action.
Scenario 2: A claim, for example for payment of a purchase price or a claim for damages
has already been (legally) established or acknowledged. If the debtor now resides abroad
and refuses to voluntarily pay, the question arises on how to enforce the claim.
Nexus between the legal actions’ objective and the court with which
the action is filed
A plaintiff cannot simply choose any court to pursue a claim. Codes of procedure govern the
venue at which claims can be asserted in a given situation. However, in many cases the
laws offer certain options that can also have an effect on the extent to which a favorable
decision can be enforced.
In principle, the jurisdiction of a court ends at the respective national border. Thus, in
Scenario 1, it would seem the trademark owner would have to appeal to a court in each of
the EU countries concerned in order to obtain the protection sought. Such course of action
is possible, of course, and can be wise, but requires a high degree of initial expense and
effort. Alternatively, the trademark owner could also turn to one of the so-called European
Union trademark courts. These are specially designated domestic courts whose judicial
powers, by way of exception, extend beyond national borders. A German court can thus,
under certain circumstances, for instance issue an injunction that applies to several
countries or even to the entire European Union. It can also rule upon ancillary claims, e.g.
damages. In view of the (relative) speed of German courts, particularly with regard to
injunction proceedings, in certain circumstances legal protection can therefore be
efficiently attained for the entire EU with just one legal action.
Such plaintiff-friendly concentration of legal authority can also be found in other statutory
provisions. In this respect, before filing a suit, it is extremely important to understand
exactly
i. which goals are to be achieved by filing the suit
ii. if there are certain “interim goals” that can be isolated and enforced separately and
iii. if, where there is a choice between different jurisdictions, there is one venue that appears
to be particularly favorable due to specific characteristics of the respective legal system
or in the application of the law.
Enforcement of (established) claims
Even if a claim has already been established, e.g. by way of a court decision, this
unfortunately does not mean that the debtor will voluntarily pay. When the debtor is not a
national resident, the question then arises how the title obtained can be enforced, as also
national law enforcement authorities can only act within their home-countries’ boundaries.
If the debtor resides abroad, a claim must therefore be enforced abroad by the competent
local authorities in accordance with the rules that apply in the respective country.
Enforcement within the EU
Even if law enforcement abroad requires additional effort and is thus more expensive than
law enforcement at home, there are legal instruments that can simplify the process. In the
European Union, for example, various types of judicial decisions are automatically
recognized by all member states as legally binding, irrespective of the issuing court’s place
of residence. In these cases it is thus no longer necessary to consider whether or not a
decision adopted for instance in Germany would also have been adopted in Italy in terms of
its content. The Italian authorities enforce such ruling in the very same way as they would
enforce a ruling of an Italian court. Enforcement measures abroad in this context thus
merely require some formal and organizational effort, but can be easily planned and
monitored.
Enforcement in non-EU countries
Also with regard to non-EU countries, there are treaties to ensure that judicial decisions
can be enforced cross-border (e.g. the so-called Hague Conventions and bilateral treaties).
As opposed to proceedings within the EU, these procedures are more complicated,
however, as they require involvement of additional domestic authorities, such as courts
and/or administrative bodies. Since judicial or administrative proceedings cannot be
managed as easily, generally one should expect a lengthier, i.e. more time-consuming
process before the actual enforcement actions can be initiated. Details will very much
depend on the type of administrative assistance required or requested as well as the
countries involved in each specific case, of course. Legal relations with the US, for example,
are well-established, and many common procedures such as service of process and
procedures on the taking of evidence can be implemented almost as fast as in innerEuropean legal relations. Thorough advance research and planning pays out where other
legal systems are concerned, to avoid unnecessary loss of time due to the failure to meet
formal requirements, for example.
Contact:
Dr. Gösta Schindler
E-Mail: [email protected] | Tel: +49 40 41999 0
Web Version: https://buse.de/en/insights/strategic-considerations-for-cross-border-disputes/