United States: International Litigation & ADR Update

To read the full text of the articles in the March 2011 edition of the International Litigation & ADR Update, please download the attached pdf.

Facilitating Payments—Are They Worth the Risk?

Multinational corporations face three types of risk on compliance­-related matters: 1) the risks that they know, 2) the risks that they know they don't know, and 3) the risks that they don't know they don't know. Payments made pursuant to the facilitating payments exception of the Foreign Corrupt Practices Act ("FCPA") fall into all three categories of risk. ( View PDF for full story)

Assertion of Privilege in Section 1782 Proceedings to Collect Evidence in the U.S. for Use Before a Foreign Tribunal: Lessons from Chevron

In February, an Ecuadorean court ordered Chevron Corp. to pay Ecuadorean plaintiffs some $8.6 billion in compensation relating to alleged environmental damage in the Amazon rain forest. Undoubtedly, the final chapter of the battle between Chevron and its opponents has yet to be written—both sides have stated their plans to appeal the judgment. And, Chevron is also seeking to prevent any enforcement of the Ecuadorian judgment (as discussed in a separate note herein), as it simultaneously prosecutes an international arbitration challenging the legitimacy of the Ecuadorian court action. ( View PDF for full story)

Note from the Editors

This edition of the International Litigation & ADR Update includes an overview of the U.K. Bribery Act, which the new U.K. Government has stated will be passed although its enactment into law has been delayed. International practitioners are familiar with the American equivalent—the Foreign Corrupt Practices Act ("FCPA"). The U.K. Act is not a mirror image of the FCPA and promises to expand liability substantially, especially in respect of facilitating payments, which the U.K. Act prohibits completely but the FCPA allows in limited circumstances. ( View PDF for full story)

Anti-Foreign Suit Injunctions and the Chevron Case

The Editors request the reader's indulgence in commenting on two separate, but important, issues arising from the Chevron case. The very size of the judgment handed down by the Provincial Court of Justice of Sucumbíos on February 14, 2011 would merit speculation on what enforcement steps the plaintiffs might take to collect on their $8 billion judgment. It is a fact, however, that the plaintiffs' plans for enforcement were laid out quite some time ago. It is also a fact, moreover, that litigation relating to their enforcement strategy began before the judgment was even handed down. (View PDF for full story)

U.K. Bribery Act 2010

Worldwide action against business corruption has come a long way since the adoption of the U.S. Foreign Corrupt Practices Act 1977 (the "FCPA") and the enactment of the Organization for Economic Co-operation and Development Convention on Combating Bribery in 1997 (the "OECD Convention"). Adopted fourteen years ago, the OECD Convention has almost 40 signatories. ( View PDF for full story)

Akzo Nobel Decision Confirms Ambiguity of Privilege in European Competition Proceedings

As has been widely reported, on September 14, 2010, in the case of Akzo Nobel Chemicals Ltd. et al. v. European Commission, the European Court of Justice ("ECJ") confirmed prior European Union case law that a company's internal communications with in-house counsel are not entitled to the protections of the attorney-client privilege (or, as it is often called in Europe, the "legal professional privilege") in E.U. competition proceedings. As this had been the rule in E.U. competition proceedings since at least 1982, the ECJ's ruling hardly came as a surprise, even though many national governments and bar associations had petitioned for a broader recognition of the legal professional privilege for a company's communications with its in-house counsel. ( View PDF for full story)

Get to Know Your Expert: New Rules in U.S. Federal Courts Broaden the Scope of Privileged Communications

Until recently, under the liberal discovery rules applicable in U.S. federal courts, draft reports from testifying experts had to be disclosed. Indeed, the general rule followed in federal court for the past several years had been that all communications with the retained trial expert, as well as all of the expert's draft opinions, were subject to disclosure to the opposition. That rule created various problems and led to contorted situations in which a litigator might hire a consulting expert with whom confidential communications could be had, while engaging a separate expert to provide trial testimony with whom written communications would have to be kept to a minimum. ( View PDF for full story)

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