The other day I received a call from a potential client here in the U.S. whose company was sued in a foreign country. And not just any foreign country, one of THOSE foreign countries.
Now the great thing I love about international litigation is the strategy that’s involved when dealing with a foreign country.
There’s a whole new set of dynamics to consider such as the country’s legal system, government and culture–just to name a few.
I mention this because there’s a great post over at Above the Law by Mark Herrmann.
The post, Inside Straight: The Global Perspective That Lawyers Lack, takes a page from the international litigator’s playbook and discusses a highly effective strategy to consider when your company has been sued in a foreign country.
The strategy that Mark advances is to take counter-action against a foreign-based lawsuit by filing a lawsuit in one’s own jurisdiction.
Of course, this assumes that the party being sued failed to include a forum selection clause in the governing contract, which would have called for the dispute to be litigated in a more “civilized” forum.
The theory behind this strategy is that if you sue you’re foreign based opponent in U.S. Court, you’ll have a fighting chance to level the playing field.
As Mark explains:
Suing your [foreign] opponent in a U.S. court may be the best way to obtain the negotiating leverage needed to resolve your [foreign] case. You’ll have moved your opponent off of his home turf and into a legal system that is foreign to him, generally incorruptible, and generally fair. That’s an improvement.
But it may get better than that: If your U.S. case moves to judgment, and if your American judge and jury are offended by the [foreigner’s] business tactics, then you may have an American judgment in your favor, which will put serious pressure on your [foreign]opponent.
Given the leverage you’ll gain is employing this tactic, it should be considered and implemented if at all reasonably possible.
Taking counter-action against your foreign opponent is not only good strategy, it may be your only way out when being sued in a less-than desirable foreign country.
What do you think?