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CIS Local Counsel Forum Minsk, 23-25 June 2010 Outbound Cooperation Practical advice for outbound disputes. What should a CIS based attorney do when his.

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Presentation on theme: "CIS Local Counsel Forum Minsk, 23-25 June 2010 Outbound Cooperation Practical advice for outbound disputes. What should a CIS based attorney do when his."— Presentation transcript:

1 CIS Local Counsel Forum Minsk, June 2010 Outbound Cooperation Practical advice for outbound disputes. What should a CIS based attorney do when his or her client is confronted with a dispute outside his or her territory? Irina Sidorova Law Firm Irina M. Sidorova Paris, France Law Firm Irina M. Sidorova – 1

2 First rule: Compile a complete check list without hurrying Before taking any steps, check the provisions relative to the remedies in case of material breach or to the termination in the agreement : Conciliation Clause Termination Clause Notification Clause Etc. Law Firm Irina M. Sidorova

3 First rule: Compile a complete check list without hurrying Conciliation Clause In the case of non-respect of the conciliation clause, e.g., the immediate start of litigation, the judge can declare the suit inadmissible Law Firm Irina M. Sidorova

4 First rule: Compile a complete check list without hurrying Termination Clause In the case of non-respect of the termination clause conditions, e.g., non-respect of the delay before termination, the agreement may be declared non terminated by the judge, thus the terminating party may be sentenced to the payment of damages, even if it is an injured party Law Firm Irina M. Sidorova

5 First rule: Compile a complete check list without hurrying Notification Clause In the case of non-respect of the notification clause, e.g., notification of the termination of the agreement to a wrong address, the agreement may be declared non terminated by the judge Law Firm Irina M. Sidorova

6 Also check A forum selection clause (jurisdiction clause) in a contract with a conflict of laws: the reference made to a particular court in a jurisdiction agreed upon by the partiescourt jurisdiction the reference made to a specific kind of dispute resolution process, such as mediation, arbitration, or a hearing before a special refereedispute resolutionmediationarbitrationspecial referee the clause requiring a specific process to be carried out in a specific locationspecific process specific location Law Firm Irina M. Sidorova

7 Also check Be particularly careful if you wish to terminate the agreement unilaterally E.g., in France the early termination of a fixed term agreement by a party may be considered as a breach of agreement. The terminating party may be sentenced to pay damages if the judge considers that the early termination is not justified. It is preferable to ask the Court for the authorization to terminate such an agreement Law Firm Irina M. Sidorova

8 Also check Whether there is no termination provisions If the agreement does not contain any termination provisions, then the termination provisions of the law governing the agreement will apply Law Firm Irina M. Sidorova

9 Second rule: Ask advice from a specialist before taking any steps, even if you consider that the matter is simple E.g., in the European Union, in the case of termination of an agreement of a commercial agency, the commercial agent is entitled to be paid compensation or an indemnity payment, even after the expiry of a fixed term agreement Law Firm Irina M. Sidorova

10 Ask advice In the case of simultaneous litigation in various countries: If you start the litigation in your own country first, the foreign counsel will be obliged to follow your own arguments It is preferable to fix a common strategy with all the foreign counsels before and coordinate with them Law Firm Irina M. Sidorova

11 How to find a foreign counsel? By professional contact (the best way to find a reliable partner) By reputation By advertisement By contacting the consulate or the economic services of the embassy of the foreign country By Internet Law Firm Irina M. Sidorova

12 What to look for in the foreign counsel? Specialization Experience Fees Language Personal contact Law Firm Irina M. Sidorova

13 What to check before hiring a foreign counsel? The professionalism (carefully read the brochure/Internet /website, etc.) The law degree (if you have some hesitation) If the counsel is admitted to the local Bar (if you have some hesitation) List of previous clients (subject to the respect of the professional secrecy rules in certain countries) Payment arrangements Your intuition Law Firm Irina M. Sidorova

14 What foreign counsel to choose for what case? - A well-known international law firm Plus: Prestige, reputation, possibility to carry out trans-border operations within the same law-firm, multi-specialization Minus: High fees, long internal administrative procedures, risks resulting from the conflict-check, your case may be dealt with by different lawyers For what case? For IPO, International Arbitration between multinational or State companies, international M&A, cases involving the application of the competition law, etc. Law Firm Irina M. Sidorova

15 What foreign counsel to choose for what case? - A medium-sized law firm Plus: Good knowledge of local business practices, good contact with local courts, personal contact Minus: Sometimes, narrow specialization which does not allow work on different aspects of the case, high and medium-level fees For what case? For litigation cases of a certain importance, international and national arbitration, drafting of contracts, cases involving the application of criminal law Law Firm Irina M. Sidorova

16 What foreign counsel to choose for what case? A small law firm or an independent lawyer Plus: Personal contact, reactivity, mobility, medium-level and low fees Minus: Impossibility to carry-out huge operations in a short period of time For what case? Establishment of commercial representations involving numerous administrative or immigration formalities, commercial and employment disputes, conclusion and termination of commercial agreements, minor real estate operations Law Firm Irina M. Sidorova

17 Fee options A fee set according to the time spent and based on an hourly rate – a generally accepted means of fee calculation A subscription contract – a regular fee payment lasting the duration of a given agreement A flat fee - is fixed to complete any work on the case from beginning to end An additional contingency fee arrangement – it is not accepted in all countries Law Firm Irina M. Sidorova

18 Conclusion Compile a complete check list without hurrying Ask advice before acting Careful choice of foreign counsel Obtain fee option agreement Law Firm Irina M. Sidorova –


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