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Which foreign-related cases require the intervention of overseas lawyers?

作者:admin 发布时间:2020-08-09 16:08:15点击:78
In recent years, with the deepening of the “Belt and Road” construction and the increasing participation of Chinese enterprises in the international market, the number of foreign-related dispute cases has increased year by year, and the number of Chinese lawyers engaged in foreign-related legal services has also continued to expand. When representing foreign-related cases, Chinese lawyers will inevitably have to engage in cross-border cooperation with overseas lawyers. This "combination of Chinese and Western" trend not only requires Chinese lawyers to have a certain knowledge reserve of overseas laws, but also poses new challenges to the coordination and diversified cooperation capabilities of Chinese lawyers. This article will combine the author's team's experience in representing foreign-related cases and share with readers some suggestions for Chinese lawyers to select and manage foreign lawyers in foreign-related cases, with a view to helping foreign-related lawyers who are new to the industry to carry out their work. 1. Which foreign-related cases require the intervention of overseas lawyers? In practice, due to considerations of case handling time and cost efficiency, not all cases with foreign elements require the intervention of overseas lawyers. For example, when the substantive dispute in a case is subject to Chinese law, and the subject involved is an overseas enterprise or natural person, and the fact investigation of the case involves foreign language documents, Chinese lawyers can fully cooperate with the client and third-party auxiliary institutions (such as translation companies, investigation companies, and notary agencies). etc.) to complete the case agency work. For the following dispute resolution cases, Chinese attorneys may need to consider hiring overseas lawyers. international arbitration cases The "international arbitration cases" mentioned here refer to arbitration cases where the place of arbitration is outside China (including Hong Kong, Macao and Taiwan). This type of case has two characteristics: (1) The issues of legal application are complex. In addition to the legal issues applicable to the substantive dispute, it may also involve legal issues applicable to the arbitration procedure, the arbitration agreement, and the behavior of the parties involved in the case. Legal issues of capacity, legal issues applicable to the enforcement of arbitral awards or interim measures orders. In individual cases, these legal issues may point to multiple different jurisdictions, which requires the attorney to identify the focus of the dispute and determine the application of the law, and then look for local lawyers to cooperate in the relevant jurisdictions based on the specific circumstances of the case; (2) Blended arbitration procedures The characteristics of the common law system, such as evidence discovery (document production) and cross-examination (cross-examination) systems, especially when the members of the arbitral tribunal have a common law background, the Chinese legal team may have to cooperate with overseas lawyers depending on the circumstances of the case. Work together to achieve the best agency results for our clients. The existence of parallel legal proceedings in multiple jurisdictions In practice, foreign-related cases may involve parallel legal proceedings in multiple jurisdictions, which poses new challenges to the overall coordination and strategic planning capabilities of Chinese lawyers as "lead lawyers." For example, in an independent guarantee dispute case that the author's team once represented, because the issuer of the guarantee was an Italian bank, the counterparty guarantee applicant "surprised" and applied for a "guarantee stop payment order" in the Italian court, resulting in our client being the beneficiary. The person cannot withdraw the money under the letter of guarantee involved in the case within the country. The author's team immediately hired a local lawyer in Italy after accepting the representation and applied to the court to revoke the "stop payment order". On the one hand, it also filed a breach of contract lawsuit domestically against the issuer of the letter of guarantee. With the cooperation of the two places, it finally succeeded in recovering the client's debt. Huge losses. In addition, in practice, it may happen that the parties involved in the case are applied for liquidation or bankruptcy by other creditors overseas. In this case, the attorney needs to select an appropriate overseas lawyer to promptly participate in and protect the client's interests in the overseas proceedings, and at the same time coordinate his or her domestic obligations. Possible effects of parallel litigation or arbitration proceedings. Domestic litigation or arbitration requires ascertainment of foreign law In domestic litigation cases, according to the provisions of the "Law of the People's Republic of China on the Application of Foreign Civil Legal Relations" and relevant judicial interpretations, whether the parties have agreed to apply foreign law, or whether the foreign law is applied based on conflict norms, the parties can take the initiative to provide the judge with Findings concerning foreign law[1]. In this case, the parties can choose and hire overseas lawyers or legal experts to issue an investigation report, or they can entrust a legal investigation service agency to conduct the investigation. Similarly, if an arbitration case involves the ascertainment of foreign law, the parties may also take the initiative to submit a legal expert report to the arbitral tribunal. Domestic court judgments or arbitration awards may be enforced abroad If the future execution of the case involves the disposal of overseas assets, even if the substantive dispute has nothing to do with overseas laws, the attorney should consider in advance to consult with lawyers in the country where the assets are located about the local judicial attitude on the recognition and enforcement of Chinese court judgments or arbitral awards, as well as the possible consequences Reasons why judgments or arbitration awards cannot be enforced, in order to maximize the protection of customer interests. 2. How to choose an overseas lawyer? As mentioned above, if the Chinese attorney determines that it is necessary to hire an overseas lawyer to intervene in the case, the question that arises is: how to choose a suitable overseas lawyer? This question can be further broken down into: (1) What are the channels for choosing overseas lawyers? (2) What factors should be considered when choosing an overseas lawyer?
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