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International Litigation News Publication of the International Bar Association Legal Practice Division MAY 2019
The 2019 Annual Conference will be held in Seoul, South Korea, a
thriving metropolis that mixes the traditional with the modern – from
skyscrapers, high-tech subways, K-pop culture and K-beauty to Buddhist
temples, palaces and street markets.
South Korea has made a spectacular rise from being one of the poorest
countries to the 4th largest economy in Asia and the 12th largest in
the world. It has become a developed high income country in one
generation. South Korea remains one of the fastest growing developed
countries.
This technology forward, but deeply traditional city will be an ideal
location for the largest and most prestigious event for international
lawyers. Seoul will provide an abundance of business and networking
opportunities, the chance to explore this bustling and energetic city and
to experience the dynamism of the region.
WHAT WILL IBA 2019 OFFER YOU?
• Gain up-to-date knowledge of the key developments in your area of
law which you can put into practice straight away
• Access to the world’s best networking and business development
event for lawyers and law firms – attracting over 6,000 individuals
representing over 2,700 law firms, corporations, governments and
regulators from over 130 jurisdictions
• Build invaluable international connections with leading practitioners
worldwide, enabling you to win more work and referrals
• Increase your personal and law firm’s profile in the international
legal world
• Hear from leading international figures, including officials from the
government and multilateral institutions, general counsel and experts
from across all practice areas and continents
• Acquire a greater knowledge of the role of law in society through rule
of law and human rights
• Be part of the debate on the future of the law
TO BOOK NOW:
Visit: www.ibanet.org/Conferences/Seoul-2019.aspx
To receive details of all advertising,
OFFICIAL CORPORATE SUPPORTER
exhibiting and sponsorship opportunities
for the IBA Annual Conference in Seoul,
email andrew.webster-dunn@int-bar.org
IN THIS ISSUE MIDDLE EAST
From the Co-Chairs 4 Mandatory mediation for commercial cases in Turkey:
regulation and related concerns63
Editors’ note 5
Amendments to Turkish criminal procedure code,
Committee Officers 6
post state of emergency64
IBA Annual Conference – Seoul, 22–27 September 2019:
The UAE’s new Arbitration Law: a significant step towards
Our committee’s sessions 7
making the Emirates a global arbitration hub67
Ich bin ein Berliner: welcome to the Berlin
Commercial agency disputes and their resolution in the UAE70
IBA Litigation Forum9
Class actions in Israel71
Welcome to Seoul: discussion with John Bang
on litigating in Korea and visiting the IBA ASIA
Annual Conference10
The high-water mark in the enforcement of exclusive
What are you doing to promote diversity?13 jurisdiction clauses in Singapore73
My London – My Geneva17 Singapore Court of Appeal adjudges on the effect
Roundtable: views from the top18 of non-exclusive jurisdiction clauses and what
constitutes a submission to jurisdiction 75
On top of your game: tips for how to litigate healthily26
NORTH AMERICA
Features from our global members
Foreign sovereign immunity and employment lawsuits
EUROPE brought against foreign states in the United States 78
Duty of cooperation for directors of an insolvent Can a United States court order discovery outside the
company and information to be provided30 US for use in a foreign proceeding?80
Presumption of innocence and media reporting in Austria32 LATIN AMERICA
May the parties derogate both general and special Enforcing socioeconomic rights through structural injunctions
jurisdiction in Italy?34 in Mexico: a proposal in light of the San Fernando case82
The Dolce & Gabbana case: the latest episode in the
‘tax inversion war’35
Newsletter Editors
Laundromat no more? Unexplained Wealth Orders
Jane Colston Sandrine Giroud
in London37
Brown Rudnick, London Lalive, Geneva
Cross examination of an expert witness39 jcolston@brownrudnick.com sgiroud@lalive.law
Parent company liability in English law: the trouble with
troublesome subsidiaries41 International Bar Association
Rage against the machine: crypto-frauds – one scandal 4th Floor, 10 St Bride Street
too many?44 London EC4A 4AD, United Kingdom
Tel: +44 (0)20 7842 0090
The new disclosure pilot for the Business and Property
Fax: +44 (0)20 7842 0091
Courts: a co-pilot’s perspective47
www.ibanet.org
Ten top tips for crisis management50 © International Bar Association 2019.
All rights reserved. No part of this publication may be reproduced or transmitted
Truck cartel and intra-EU Court competence criteria52 in any form or by any means, or stored in any retrieval system of any nature
without the prior permission of the copyright holder. Application for permission
New French law expands protections covering trade secrets55 should be made to the Director of Content at the IBA address.
US monitorships: the Swiss perspective57
Terms and Conditions for submission of articles
Ukrainian judicial practice heading in a proper direction61 1. Articles for inclusion in the newsletter should be sent to the Newsletter Editors.
2. The article must be the original work of the author, must not have been previously published,
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This newsletter is intended to provide general information regarding associated with the article and, except for necessary editorial changes, no substantial alteration
recent developments in international litigation. The views expressed to the article will be made without consulting the author.
are not necessarily those of the International Bar Association.
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 3
FROM THE CO-CHAIRS
Tom Price
From the Co-Chairs Gowling WLG,
Birmingham
tom.price@
W
gowlingwlg.com
elcome to the May 2019 edition of arising from sanctions, human rights issues
International Litigation News, which, and climate change, as well as litigation Angelo Anglani
as is becoming the norm now, arising from artificial intelligence and
contains a feast of diverse and topical articles cryptocurrencies. The Forum will start with NCTM, Rome
from around the world. Thank you to all who a reception in the iconic Reichstag and the angelo.anglani@nctm.it
have contributed to it and, in particular, to Thursday dinner will be at the Charlottenburg
our hard-working editors, Jane Colston and Castle. Our thanks go out to Peter Bert and
Sandrine Giroud. From personal experience the host committee, who have worked hard
we know how much work is required in the at putting together a great programme with
editorial role. wonderful speakers.
2018 was a wonderful year for the Litigation Preparations are well under way for the
Committee guided by the calm, but highly Annual Conference in Seoul in September.
efficient, Ira Nishisato. The Annual Litigation It will be fantastic to return to Asia for this
Forum in Chicago, ‘Advocacy in the 21st flagship event. The Litigation Committee
Century’, was a magnificent success both in is leading four sessions across a wide variety
terms of the number of attendees and the of topics including, for the first time, a
quality of sessions and social programme. It session dealing with the emotional stresses of
will be a hard act to follow. practicing litigation, as well as more traditional
The subsequent gathering at last year’s topics of judgment enforcement and litigation
Annual Conference in Rome also saw further crisis management. We will also continue to
success for the Committee, which led four co-host the Global Women Litigators’ Breakfast
sessions on as diverse topics as post-closing and support several other sessions.
claims in M&A and cybersecurity litigation, as Finally for 2019, we are pleased to
well as supporting a further six sessions. announce the Third Private International
Finally for 2018, the Litigation Committee Law Conference in Milan, to be held on 25
made its first, and very important, foray into October. Preparations are in the capable
Africa, co-presenting a Litigation Conference hands of Carlo Portatadino and Chris
with the African Regional Forum in Accra, Tahbaz, and topics will include sanctions, the
Ghana, in November. This was attended by rise of commercial courts and the effects of
more than 170 delegates from 17 countries Brexit (by then perhaps more will be known
(10 in Africa). The quality of the sessions of the consequences).
(which ranged from the workings of the It has long been the ambition of the
Organisation for the Harmonization of Litigation Committee to broaden its reach
Corporate Law in Africa in dispute resolution, geographically, and one way to do this is to
to a highly entertaining debate on whether hold the Annual Forum from time to time
written advocacy will kill oral advocacy) were, outside the traditional venues of Europe and
without exception, of the highest standard. North America. It gives us great pleasure
Congratulations are due to Jacques Bouyssou therefore to announce that the Annual
from our Committee who took much of the Litigation Forum in 2020 will be held in
responsibility for putting on an ambitious Buenos Aires on 6–8 May. Plans are still
conference, with results that clearly paid off. inevitably at an early stage, but if anyone
A repeat Conference is planned. would like to be involved in the planning
Our thanks go to Ira for all his hard work then they should make contact with Angelo
during the year, which ensured all the above Anglani and Rodrigo Garcia.
events, as well as the other activities of the Additionally, the Committee is delighted
Committee, were safely navigated under his to support a further disputes conference
stewardship. that is being planned by the IBA Asia Pacific
2019 also promises to be an exciting year. Regional Forum for Singapore in September
First of all, we have our Annual Litigation 2020. More details for this can be obtained
Forum in Berlin on 8–10 May. The topic from Preetha Pillai.
is ‘Disruption in litigation – new types of Aside from conferences, the Committee
disputes in a new world order’. Topics will continues to be involved in various initiatives
include class actions, geopolitical disputes and other work, including the consultation
4 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONEDITOR’S NOTE
with the Hague Conference and assisting Thank you for your continued support of
with the Judicial Integrity Initiative. Work is the Committee. We very much look forward to
also under way to improve the Committee’s seeing many of you in Berlin, Seoul and Milan.
webpages. More details will be available at our
open meeting in Berlin immediately after the
Forum closes.
Jane Colston
Brown Rudnick,
London Editors’ note
jcolston@
A
brownrudnick.com
s your Co-Editors, we are pleased to to exchange personal experiences on
Sandrine Giroud curate this new edition of the litigation addressing diversity challenges – an important
newsletter. We have, as always, had issue for the IBA. Our ‘Welcome to’ series is
Lalive, Geneva a huge number of articles submitted for the ideal litigator travel guide to discover the
sgiroud@lalive.law publication, and it has been illuminating places where the Litigation Committee will
to review and edit them. Many thanks to stop next. Ahead of the Annual Litigation
all the contributors. The topics range from Forum in May, we have a welcome to the
black letter law to new law across numerous host city, Berlin. We also feature an insight
jurisdictions. into litigating and visiting Korea, with Seoul
In addition to the jurisdictional updates hosting the IBA Annual Conference in
from our members worldwide, this edition September. Finally, our new ‘My…’ series will
includes articles offering more personal enable members to share tips on their home
experiences and a focus on soft skills, cities – we start with London and Geneva
which are more important than ever in our from us, your Co-Editors.
digitalised and artificially intelligent world. In signing off, we would like to thank
There’s a roundtable from former chairs of Clément Dupoirier for his co-editing of the
the Litigation Committee, along with tips on newsletter over the last two years.
how to litigate healthily. Good reading and please keep the
This edition also sees the start of several contributions coming. Our focus is now on
new series. ‘What are you doing to promote September’s edition.
diversity?’ is an opportunity for practitioners
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 5COMMITTEE OFFICERS
Committee Officers
Co-Chairs Regional Representative Russian
Angelo Anglani Federation & Eastern Europe
NCTM, Milan Feodor Viacheslavov
angelo.anglani@nctm.it VLawyers, Moscow
fvyacheslavov@vlawyers.ru
Tom Price
Gowling WLG, Birmingham
Regional Representative Latin America
tom.price@gowlingwlg.com
Rodrigo Fermin Garcia
Marval O’Farrell & Mairal, Buenos Aires
Senior Vice-Chairs
rfg@marval.com
Yvette Borrius
Florent, Amsterdam
Publications Officers
yvette.borrius@florent.nl
Sara Louise Chisholm-Batten
Tim Strong Michelmores, Exeter
Taylor Wessing, London sara.chisholm-batten@michelmores.com
t.strong@taylorwessing.com
Jeff Galway
Blake Cassels & Graydon, Toronto
Vice Chairs
jeff.galway@blakes.com
Frederick Acomb
Miller Canfield, Detriot
Newsletter Editors
acomb@millercanfield.com
Jane Colston
Christie Helmer Brown Rudnick, London
Miller Nash Graham & Dunn, Portland jcolston@brownrudnick.com
chris.helmer@millernash.com
Sandrine Giroud
Lalive, Geneva
Secretary
sgiroud@lalive.ch
Carlo Portatadino
Weigmann, Milan
Conference Quality Officer
carlo.portatadino@weigmann.it
Urs Feller
Prager Dreifuss, Zurich
Treasurer
urs.feller@prager-dreifuss.com
Jacques Bouyssou
Alerion, Paris
Conference Coordinator Europe
jbouyssou@alerionavocats.com
Peter Bert
Taylor Wessing, Frankfurt
PPID Liaison Officer
p.bert@taylorwessing.com
Peter Chaffetz
Chaffetz Lindsey, New York
Committee Liaison Officer
peter.chaffetz@chaffetzlindsey.com
John Reynolds
White & Case, London
Scholarship Officer
johnreynolds@whitecase.com
Simon Hart
RPC, London
Website Officers
simon.hart@rpc.co.uk
Thera van Swaay de Marchi
Pinheiro Neto, São Paulo
Regional Representative Asia Pacific
tdemarchi@pn.com.br
Neerav Merchant
Majmudar & Partners, Mumbai Sverker Bonde
nmerchant@majmudarindia.com Delphi, Stockholm
sverker.bonde@delphi.se
6 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONIBA ANNUAL CONFERENCE – SEOUL, 22–27 SEPTEMBER 2019: OUR COMMITTEE’S SESSIONS
Special Projects Officer Sponsorship Officer
Marko Hentunen Samaneh Hosseini
Castrén & Snellman, Helsinki Stikeman Elliott, Toronto
marko.hentunen@castren.fi shosseini@stikeman.com
Diversity and Equality Officer
Daan F Lunsingh Scheurleer
Young Litigators Forum
NautaDutilh, Amsterdam
daan.lunsingh@nautadutilh.com Co-Chairs
Anna Grishchenkova
Membership and Communications Officers KIAP, Moscow
John P Bang ag@kiaplaw.ru
Bae Kim & Lee, Seoul
Andreas Frischknecht
john.bang@bkl.co.kr
Chaffetz Lindsey, New York
Clément Dupoirier andreas.frischknecht@chaffetzlindsey.com
Herbert Smith Freehills, Paris
clement.dupoirier@hsf.com
LPD Administrator
Cheveon Badi
cheveon.badi@int-bar.org
Litigation Committee’s sessions
Monday 0930 – 1045 Monday 1430 – 1545
Judges and arbitrators as adjudicators and Litigation crisis management
settlement facilitators and the Singapore Presented by the Litigation Committee
convention on enforcement of mediated This panel intends to explore the interplay between different
settlements stakeholders who become involved in a corporate crisis as it evolves
Presented by the Dispute Resolution Section, the Arbitration and their different roles and perspective. The panel will address how
Committee, the Consumer Litigation Committee, the Litigation to balance the necessity of transparent and quick communication
Committee, the Mediation Committee and the Negligence and with the public and the different perspective needed when defending
Damages Committee the corporation against civil claims or dealing with regulatory or
This session will discuss whether and to what extent judges and criminal inquiries. The intention is to use a case study or a scenario
arbitrators should facilitate settlement, and the impact of the and through that discuss what roles corporate counsel, outside
Singapore Convention on Enforcement of Mediated Settlements on counsel (litigation as well as investigative teams) and PR professionals
international disputes. will play at different stages; from when the crisis hits until the
corporation begins to move on from it despite there – often – being
years of litigation and investigation following thereafter. We will seek
to involve the audience in the discussion, perhaps also through digital
means (ie, by responding to questions/voting not only by a show of
hands but digitally).
Continued overleaf
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 7IBA ANNUAL CONFERENCE – SEOUL, 22–27 SEPTEMBER 2019: OUR COMMITTEE’S SESSIONS
Tuesday 0800 – 0915 Wednesday 1115 – 1230
Global women litigator breakfast Justice Machines: dystopia or opportunity?
Presented by the Litigation Committee and the Women Lawyers’ Judicial function and dispute resolution in the
Interest Group artificial intelligence (AI) era
Presented by the Litigation Committee and the Judges’ Forum
Tuesday 1615 – 1730 In the recent years, technology has substantially developed and
grown in the practice of law: from supporting and replacing certain
Ways to cope in practice management human activities, to a disruptive role, which is even intended to
Presented by the Litigation Committee reshape the adjudicative function. In this context, we already refer to
Legal practice has always been a taxing and stressful profession. In artificial intelligence (AI).
today’s hyper-connected offices, the demands associated with being It has been common opinion that the dispute resolution sector was
a lawyer have only increased. In order to be effective and productive safe from these developments, in the belief of the essentiality of the
in the long run, lawyers need to be prepared to cope with the human intelligence in the decision-making process.
mental and physical toll that the legal profession can exert on an
individual. Fortunately, the legal profession as a whole is increasingly Is this assumption still valid? Does the development of technology
cognisant of the need for lawyers to develop the skills and practices suggest a different view?
necessary for effectively managing stress and increasing their To what extent will the judicial function – and therefore the legal
productivity, such as preparedness, well-being, mindfulness and profession – be reshaped by the AI phenomenon?
meditation. These and other similar practices have already proved
to be very effective in other high-intensity endeavours such as The session will explore the state-of-the-art of AI applied to dispute
entrepreneurship and sports, and their use by lawyers is likely to resolution and debate consequences and perspectives for judges,
benefit both the individual and the profession as a whole. lawyers and, ultimately, for the parties.
Wednesday 0930 – 1045
Enforcing judgments around Asia
Presented by the Litigation Committee, the African Regional Forum,
the Arab Regional Forum, the Asia Pacific Regional Forum, the
European Regional Forum, the Latin American Regional Forum and
the North American Regional Forum
And so I have a judgment; now what?
The enforcement of a judgment that has been obtained by a plaintiff
is perhaps the most important aspect of litigation, as it is in effect the
whole point of undergoing the often arduous process. When that
judgment is a foreign one, this process is made even more difficult,
as the foreign judgment itself must be recognised by the court in
which that judgment is sought to be enforced before the plaintiff can
invoke the necessary steps or procedures in order that it be enforced.
However, the procedures concerned will differ from jurisdiction to
jurisdiction and nowhere is this more apparent than in the Asia Pacific
region, which consists of a heady mix of common law countries, All programme information is
civil law countries and hybrid systems. A diversity of rules may be correct at time of print.
confusing for litigants, who would potentially have to navigate both
substantial and subtle differences in the various laws. Harmonisation To find out more about the
would obviously increase legal certainty and portability of judgments conference venue, sessions and
in the region, but is this even a possibility? social programme, and to register, visit
Our panellists will discuss some of the broad features of the systems in www.ibanet.org/Conferences/Seoul-2019.aspx.
place in the Asia Pacific region, some of the challenges they have faced Further information on accommodation and
in enforcing foreign judgments, practical solutions in overcoming these
excursions during the conference week can also be
challenges and their views on whether the existing rules are in fact
found at the above address.
necessary to preserve the integrity of the national legal systems.
8 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONICH BIN EIN BERLINER: WELCOME TO THE BERLIN IBA LITIGATION FORUM
Peter Bert
Taylor Wessing,
Frankfurt am Main Ich bin ein Berliner:
p.bert@
taylorwessing.com welcome to the Berlin
IBA Litigation Forum
What characteristics of the German legal of the time-honoured concept of Kammer
system would you highlight to someone für Handelssachen (chamber for commercial
looking to do business in Berlin? disputes), resulting in legislation to modernise
Germany’s Code of Civil Procedure over and
Germany is a traditional civil law system. Its
above the issue of language.
judicial system is generally considered to be
independent, efficient and corruption free.
The World Justice Project’s 2019 Rule of Law What are the tactical and strategic points
Index ranks Germany in sixth place overall. Its of difference that you would highlight
civil justice system does even better and wins for foreign litigators overseeing disputes
the Bronze Medal. If you plan to do business in before the German courts?
Berlin, rest assured that you will be doing so in
As a foreign lawyer, I suggest keeping some
a safe and reliable legal environment.
key characteristics of German procedural law
in mind.
What major developments do you expect German civil procedure is largely paper-
to see in the German dispute resolution based and there is neither discovery nor
landscape in the next five years? disclosure. If, on a scale of zero to ten
regarding document production, the United
Two things come to mind:
States is at ten, and the United Kingdom is at
First, in late 2018 Germany introduced
three, then Germany is at zero (in line with
a new type of civil procedure for model
most European jurisdictions). There is also
proceedings: the Gesetz zur Einführung einer
no concept of trial. In a typical commercial
zivilprozessualen Musterfeststellungsklage,
dispute, there might be a series of relatively
which builds, to some extent, on the
short hearings, with relatively little oral
Kapitalanlegermusterverfahrensgesetz (the Law on
advocacy, spread out over a relatively long
Model Litigation in Capital Market Disputes)
period of time. You could have a first hearing
– a law that proved Mark Twain right when
in March, a second hearing in June and
he said that ‘some German words are so long
then be in court again in September and
that they have a perspective – these things are
November to hear witnesses and experts. If
not words, they are alphabetical processions’.
you are acting for the non-German party, you
The Musterfeststellungsklage is designed to
can rest assured that German judges, as a
bundle identical or similar cases together, in
rule, do not have a home bias. However, don’t
a streamlined process, with the first practical
be surprised if the judge actively addresses the
application being diesel-related consumer
issue of settlement discussions and perhaps
litigation. It will be interesting to see whether
even proposes terms for a settlement.
claimants come on board, how the new
procedure performs in practice, and what
impact legislative initiatives at the European Top tips for attending the IBA Litigation
Union level will have in the field. Conference in Berlin in May
Second, the topic of international
Try to come early, or to stay the weekend. If
commercial courts is gaining traction. Like
you have little time on your hands, consider a
other European jurisdictions, Germany is
walk from the Reichstag and the Brandenburg
looking into a modern offering for commercial
Gate to Hackescher Markt. The direct route
litigation, triggered in part by Brexit. Frankfurt
will mostly follow the Unter den Linden
and Düsseldorf are already offering parties
Boulevard and should take about half an
the opportunity to conduct court hearings
hour. You can then add detours, depending
in English. The interesting question will be
on your interests, time and budget, be this
whether there will be a comprehensive overhaul
the Holocaust Memorial, the Friedrichstraße
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 9WELCOME TO SEOUL: DISCUSSION WITH JOHN BANG ON LITIGATING IN KOREA
shopping area or Gendarmenmarkt. You will Bus, taxi or tram to get around Berlin?
pass through Museuminsel (Museum Island),
If you are in tourist mode, give bus no. 100 a
home to five famous museums and itself a
try. The route was created post-reunification
UNESCO World Heritage Site. If you have
to connect East and West Berlin and links
more time, consider a trip to Potsdam.
many of the top sightseeing spots. If not, try
all of the above, depending on the time of day
What are your favourite spots for a meal and your destination.
in Berlin?
For fine dining, I am a fan of Tim Raue’s What makes someone a Berliner?
self-titled flagship restaurant, Tim Raue.
Not being from Berlin myself, I find it hard
One of his other spots, La Soupe Populaire,
to tell. Perhaps it is not so much about being
was a great combination of art, cuisine and
from Berlin, but more a state of mind. John F
location. It is about to re-open, perhaps just in
Kennedy famously said ‘Ich bin ein Berliner’.
time for the conference.
If he could be a Berliner, you can be one too.
If you have an evening to spend in Berlin,
it would be…?
Sunset drinks at one of the outdoor bars
around Museum Island in summer, or around
Gendarmenmarkt in winter, followed by
a concert in one of Berlin’s jazz clubs. My
favourite is the A-Trane in Charlottenburg.
John P Bang
Welcome to Seoul: discussion Bae, Kim & Lee, Seoul
john.bang@bk.co.kr
with John Bang on litigating
in Korea and visiting the IBA
Annual Conference
Describe your career to date that I did not like transactional work as much
as I had thought I would. In the interim,
I did my undergraduate degree and JD in
from 1999 onwards, I also became involved
the United States. After my JD, I worked as
in international arbitration and cross-border
a federal law clerk to a judge in the United
litigation, which I found to be very much to
States Bankruptcy Court for the District of
my liking.
New Jersey. As I had emigrated to the US at a
In 2002, I therefore formally left my
very young age, I had always wanted to spend
corporate practice and joined the newly
some more time in Korea after becoming a
formed International Arbitration and Cross-
professional. After completing my clerkship
Border Litigation practice in the firm. The
in 1997, I therefore moved to Korea to work
practice had only two members at the time
in cross-border transactions at Bae, Kim &
(including me): an associate and a partner.
Lee (BKL).
As one of the two founders of the practice,
As a result of the Asian financial crisis that
I worked to develop the practice at the
occurred around that time, I worked on a
firm and in Korea over the next 17 years.
number of large M&A deals within the first
Today, the practice has grown to include 21
few years of joining BKL. However, I realised
associates and nine partners.
10 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONWELCOME TO SEOUL: DISCUSSION WITH JOHN BANG ON LITIGATING IN KOREA
What characteristics of the Korean legal As a result, Korean legal service providers
system would you highlight to someone have also developed their expertise in
looking to do business in Korea? international arbitration, meaning that clients
can expect to avail themselves of the highest
The Korean courts are ever more cognisant
standards in international arbitration services
of the demands and practices of international
by engaging Korean law firms. This access to
commerce and are thoroughly dedicated
affordable and convenient legal advice and
to providing businesses, both domestic and
representation has played a major role in
foreign, with fair and informed decision-
making Korean businesses comfortable with
making. They also have cosmopolitan and
international arbitration as a form of dispute
internationally-attuned judges, thanks to
resolution.
the fact that many Korean judges, as part
The Korean government and legislature
of their career progression, are sent by the
have also supported the development of
government to study abroad several years
arbitration in Korea by ensuring that Korean
into their careers. This familiarises the judges
arbitration laws and regulations remain
with the basics of other legal systems and also
arbitration-friendly and follow international
allows them to better appreciate Korea’s role
best practices. This legislative policy is
in the global commercial system.
reflected in the jurisprudence of the Korean
The Korean courts and other regulatory
courts, which have an established track record
bodies have a particular emphasis on speedy
of not interfering with arbitral proceedings
and practical decision-making. Even where
and upholding arbitral awards.
disputes or obstacles arise in relation to
foreign investments in Korea, investors can
expect them to be adjudged and resolved What traits do you think would serve an
in a very timely and practical manner. As arbitration practitioner well in practising
a product of the speed and efficiency of in Korea?
the Korean courts, the cost of litigation
Probably the most important quality for
as a proportion of claim amount is also
arbitration practitioners in Korea is to be very
relatively low in Korea compared to other
well-attuned to the organisational decision-
Organisation for Economic Co-operation and
making and reporting requirements of their
Development (OECD) countries. It is due
clients. Unlike Korean court litigation, with
to these characteristics of the Korean legal
which most Korean in-house counsel and even
system that, over the past four to five years,
executives are largely familiar, international
the World Bank’s ‘Doing Business’ ranking
arbitration comes in a wide variety of forms,
has consistently placed Korea in second place
with one form sometimes varying widely from
(after Singapore) in terms of the ‘ease of
another in terms of the remedies available,
enforcing contracts’.
the pace of progress, the interim relief
It is advisable that foreign companies
available, etc. Businesses in Korea therefore
doing business in Korea consider these
rely on their external counsel to guide them
qualities of the Korean courts before deciding
not just in terms of how to argue a case, but
whether they want to submit their disputes
also on what to expect from an arbitration
to arbitration instead of to the local courts.
and how to tailor the arbitration to the
Parties looking for efficient and affordable
requirements of the client. Korean arbitration
adjudication, particularly for smaller
practitioners therefore need to understand
transactions, may be best served by opting
the organisational demands of their clients
for the jurisdiction of the Korean courts over
and their hierarchy of priorities in order to
arbitration.
effectively advise them on how to deal with
arbitrations.
How is international arbitration perceived
in Korea as a form of dispute resolution?
5. In the past ten years what changes in
As Korean business has become more the dispute resolution space in Korea have
global, with both in-bound and out-bound you seen?
investment increasing exponentially in the
One of the major changes that I have seen in
past two decades, Korean companies have
the past decade is that clients have become
realised the need to rely more heavily on
more sophisticated in how they engage and
international arbitration in their ventures
rely on external counsel, with the result that
with foreign companies.
dispute resolution practitioners have had to be
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 11WELCOME TO SEOUL: DISCUSSION WITH JOHN BANG ON LITIGATING IN KOREA
more innovative and service-oriented than ever Separately, in terms of the Korean
before to meet the needs of the client. legal market, I expect that (given Korea’s
As Korean clients have grown in size and continued rise in the construction and
international reach, the level of sophistication engineering sector) Korean companies are
with which they use external legal services, likely to be involved in a greater number
and the quality they demand from legal of construction projects and, as a result, a
service providers, has increased. This has relatively higher number of construction
particularly been the case for companies that disputes. I therefore expect that both Korean
have sought to hire both Korean- and foreign- and international law firms with strong
licensed in-house counsel, in order to more construction dispute practices are likely to
effectively utilise the legal services available in see increasing workloads in this regard over
Korea and abroad. the next few years.
In the case of dispute resolution
practitioners, this means that clients expect
What are the tactical and strategic points
more nuanced and wide-ranging legal advice,
of difference that you would highlight
not limited solely to the immediate dispute,
for foreign litigators overseeing disputes
but also aimed at dispute avoidance and the
before the Korean courts?
efficient use of alternative dispute resolution
(ADR) to minimise litigation risk at the Having received my legal education and
company level. initial training outside of Korea, in a common
law jurisdiction, I realise that there are several
aspects of Korean litigation that might catch
What major developments do you expect
foreign litigators by surprise, and for which
to see in the Korean dispute resolution
they may have to adjust their tactics.
landscape in the next five years?
One example is the lack of discovery in
One of the most important changes that I Korean litigation. Compared to the broad
foresee in Korean dispute resolution over the concept of discovery in the US courts or
next few years is based on my personal work of disclosure in the UK courts, the Korean
and experience at BKL. One of the major courts are much more conservative in
achievements of the firm’s International ordering parties to produce documents that
Arbitration and Cross-Border Litigation the parties have not produced voluntarily.
practice in the past five years has been that it Requests or applications to this effect are
has successfully implemented a new approach granted less frequently than in common
to handling international arbitrations and law jurisdictions, and even when granted,
cross-border litigation in Korea by having are limited to certain specific documents.
one of the most diverse legal practices in the Litigators therefore have to adjust their
region. Where the traditional approach had tactics to rely primarily on the documents
been to primarily have lawyers trained in and oral testimony available to them, and
the US and Korean legal systems, we moved should not expect to be able to obtain
beyond this to include, at various times, lawyers documents in the possession of their
trained in India, Pakistan, Australia, Singapore, opposing party unless such documents can
Mexico and the United Kingdom. be identified with a high degree of specificity
The philosophy behind our approach has and can be shown to be pertinent to
been that the skills and knowledge required deciding the dispute.
for conducting arbitration and cross-border Another aspect of Korean litigation often
disputes can be found in competent lawyers overlooked by foreign litigators involved
from any jurisdiction. We believe that once in Korean proceedings is the difference
lawyers with such basic qualities join the team, in the doctrine of privilege in Korea. The
the team’s own work volume and collective Korean legal system does not recognise
experience enable it to effectively train these a formal doctrine of legal, litigation or
young members to be successful lawyers and without prejudice privilege, among other
international arbitration advocates. types. While attorneys have an obligation
I believe that, in the long run, our move and an entitlement to refuse to disclose
towards a more global and cosmopolitan any confidential information obtained in
international arbitration and cross-border the course of performing their duties as
litigation team will influence other practices attorneys, parties themselves have no such
and firms within Korea to become more right. It is therefore important that litigators
diverse and global. take this difference into account early in any
12 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONWHAT ARE YOU DOING TO PROMOTE DIVERSITY?
litigation proceeding and adjust their tactics To have one of the best views of Seoul, go
accordingly. to the Lotte World Tower, the tallest building
in Korea and the fifth tallest in the world.
Separately, for those attendees who have
Top tips for attending the IBA Annual
time to venture out into the city of Seoul, I
Conference in Seoul (22–27 September
would particularly recommend visiting the
2019)
royal tombs of the Joseon Dynasty located
As always, I expect that the IBA Annual at Seongjeongneung, the Changdeokgung
Conference will have highly informative Palace Complex (which includes the
working sessions and great social events. famous Secret Garden), the Royal Palace
In addition, with Seoul as the venue, the at Gyeongbokgung and of course the
conference is likely to be attended by lawyers Demilitarised Zone on the border between
from some of the largest corporations in the South and North Korea.
world, particularly in the areas of electronics, Lastly, it would be remiss of me if I did
telecom, automotive, construction and not recommend that all attendees take every
shipping industries, among others. I would opportunity to try the excellent Korean
encourage all IBA litigators to take this cuisine. My recommendation would be to, at a
opportunity to hear the insights and feedback minimum, sample the Korean beef (Hanwol)
of in-house counsel from these industries, to barbecue and the traditional bean paste stews
see how we, as a profession, can best serve that go along with it, since the export of
such clients. Hanwol outside Korea is prohibited.
What are you doing to
promote diversity?
In a new series, litigators share their thoughts, lessons learned and
progresses made to promote diversity in the practice of international
litigation
O
ne of my initiatives with a longer- Goldröcke’ (‘We do not need golden skirts’),
lasting effect has been the IBA Global in daily newspaper der Standard. The latter
Women Litigators’ Breakfast, hosted argued that there are enough highly-qualified
by the Litigation Committee at the Annual women to fill supervisory boards: there is no
IBA Conference. After three successful events need to strive to circumvent the new law, which
since 2016, when I had the honour of starting we see quite a bit, nor to select a ‘professional’
Bettina Knoetzl to chair the Litigation Committee, one can female supervisory board member (called a
Knoetzl, Vienna say it has become a popular event in the IBA’s ‘golden skirt’).
programme. I find it important to create When my five partners and I founded
professional fora, where more experienced Knoetzl, we were determined to only select the
female lawyers can share their stories and best possible people to join us. Only a couple
worries with the younger generation: concrete of days after we had started our operation,
examples of success have the potential to we noticed, by having applied simply this
encourage others to reach for the stars, rather the standard of excellence in staffing, how
than to give up and leave the profession. remarkably diverse the firm had become in
I have tried to help raise awareness of the reality. Diversity could be seen at all ranks (and
issue with several publications and public can still be seen) because quality – not quotas –
speeches. Two of these have included ‘It’s a is the decisive criterion. We can say that we have
Man’s World’, in Austrian monthly lawyers’ discovered the formula. Of course, we recognise
magazine AnwB 2013 and, more recently, when that we must accommodate special people with
a female quota was introduced to supervisory compelling life circumstances, but we do that
boards of larger companies, ‘Wir brauchen keine on a purely non-discriminatory basis.
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 13WHAT ARE YOU DOING TO PROMOTE DIVERSITY?
T
he Law Society of England and Wales Our Social Mobility Ambassadors
fully believes that we should always be
Our vision is of a profession in which all
aiming for a more diverse profession
solicitors – present and aspiring – can be
that better reflects the wider society we serve.
confident that talent, ability and application
We have a number of leading initiatives in
are rewarded irrespective of background,
place to promote diversity and inclusion in
gender or ethnicity. Christina
the legal profession. These include:
The Law Society’s Social Mobility Blacklaws
Ambassadors are a growing network of
President of the Law
Diversity and Inclusion Charter solicitors from diverse backgrounds who
Society of England,
are passionate about social mobility, the
This encourages and supports firms in London
profession and the law. They work with the
turning their commitment to diversity and
Law Society and with schools, universities and
inclusion into positive, practical action for
non-profit organisations to promote social
their businesses, staff and clients. The Charter
mobility in the legal profession.
was launched in 2009 and we conducted a full
Over the last four years, Ambassadors have
review of it last year. As a result of this review,
reached hundreds of budding solicitors and
we will soon pilot our new proposition: a
helped to inform their ambitions and find a
robust and challenging set of accreditations
way through the difficulties they may face.
designed to push our members to achieve
more in the areas of diversity and inclusion.
Women in Leadership in Law project
Positive action programmes On International Women’s Day, we launched
our report building on evidence from over
We work closely with the Judicial
8,000 global contributors and over 230
Appointments Commission, the Bar Council
international roundtables to identify barriers
and CILEX on career development and
to women progressing in the legal sector and
progression. We deliver a programme of
remedies to ensure more women aspire to,
activities, such as workshops for Black, Asian
and reach, leadership positions.
and minority ethnic (BAME) members
interested in a career in the judiciary and
sessions for BAME students interested in a Divisions
career in law.
These key communities represent groups in
our profession that still face discrimination
Diversity Access Scheme today and for whom it is harder to get to the
top. The Divisions provide an avenue for
This aims to increase social mobility in the
sharing best practices, addressing issues and
legal profession by supporting promising
challenges, making key voices heard during
entrants from non-traditional backgrounds
topical debates and identifying solutions to
or those who face exceptional obstacles to
improve equal opportunities for everyone.
qualification. We offer the following support
With an Ethnic Minority Lawyers Division,
to successful applicants:
an LGBT+ Lawyers Division, a Lawyers with
• financial assistance through the provision of
Disabilities Division and a Women Lawyers
Legal Practice Course fees;
Division, each with representation on our
• access to relevant high-quality work
Council, we aim to centre the needs of those
experience; and
who differ from what has for too long been
• a professional mentor.
considered the stereotypical lawyer.
I believe these initiatives demonstrate our
strong commitment to equality, diversity and
inclusion in the profession, allowing us to
continue to promote, represent and support
solicitors.
14 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONWHAT ARE YOU DOING TO PROMOTE DIVERSITY?
A
t Debevoise, we are committed to a significantly contributed to the promotion
highly diverse and fully-inclusive law of women in our firm: over the past 11 years,
firm at every level. We believe that 40 per cent of our internal promotions to
when we work effectively across difference we partnership have been women. Many of those
deliver better advice, build better relationships women had participated in our part-time
with more clients and are strengthened as a programme prior to promotion.
Christopher firm. We have a range of programmes in place In addition to DWR, we have other
to help build an inclusive community, in which initiatives in place to help our diverse talent
Tahbaz
people with diverse backgrounds, perspectives see a career path for themselves at the firm
Debevoise & Plimpton, and experiences work together as a team to and beyond, including a monthly diversity
New York provide the best legal service to our clients and speaker series in which prominent diverse
in which all of our colleagues can develop to lawyers who are leaders in their respective
their full potential. fields – legal executives, members of the
For example, three years ago we founded judiciary, and more – come and speak about
the Debevoise Women’s Review or DWR their professional experiences and the path to
(https://women.debevoise.com), an success in the legal profession. More recently,
online space designed to create meaningful we launched a Diversity & Inclusion Advisory
opportunities for women and men to engage Council, a group of lawyers and senior staff
in frank dialogue around issues of gender that is broadly representative of the firm as a
equality in the workplace and the world. whole, to provide a forum for engagement,
The site features original stories relevant to dialogue and interaction with firm leaders
professional women and their allies, including around issues of diversity and inclusion within
interviews with trailblazing women, essays the firm and beyond.
inspired by personal experiences, advice Recognising the particular challenges and
pieces for women navigating their careers and concerns that may be faced by first generation
more. In addition to DWR, we sponsor events professionals, we recently launched a First
focused on developing professional networks Generation Professionals affinity group
of women in law, at all levels of seniority, from to provide a forum for those with similar
summer associates to general counsels and backgrounds and interests, and their allies, to
C-suite client officers. Regular events focused form a community and to offer programming
on groups such as women in private equity that will respond to their needs. Similar
and female litigators foster the networks that affinity groups already exist in our firm to
help promote the professional advancement provide forums for discussion, programming
of women at all levels of the legal profession. and advocacy within the firm to other groups
Programmes such as DWR are of diverse lawyers.
complemented and strengthened by
supportive workplace policies. Debevoise
has, for many years, allowed lawyers with
demonstrated parental, family care or
personal medical needs to work part-
time. Although the policy is designed and
applied in a gender-neutral manner, it has
S
ince December 2016, as part of our Sargent. In 2016 Kathryn smashed one of
commitment to promoting equality and London’s most enduring glass ceilings.
inclusivity in the workplace, we have Kathryn was the first woman who had her
been hosting a Women in Business Series in name ‘above the door’ in the world-famous
our London office, where we ask inspirational Saville Row’s 213-year history. Kathryn, who
women speakers from various areas of has dressed clients ranging from members of
Jane Colston business to speak about their work. We hope the royal family to politicians, launched her
Brown Rudnick, to create a dynamic forum where business premises on Savile Row. The launch caused a
London relationships can be forged and where media storm: it was a great story. On the day
opportunities can be created and shared. of her launch, I heard Kathryn speaking on
When I started to think about the idea of the BBC. I had just started at Brown Rudnick
hosting a series of women-in-business events, and I was inspired by Kathryn’s description
I was inspired by our first speaker, Kathyrn of how she had made history. She spoke with
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 15WHAT ARE YOU DOING TO PROMOTE DIVERSITY?
the high energy of someone who is motivated that this was not going to be a one-off event
and doing something they are good at and and I am happy to say that, since 2016, we
love. As a new neighbour, I emailed her have had the pleasure of being joined by some
congratulations. It says much about Kathryn excellent speakers, including: Amber Rudd
that, despite being overwhelmed by the media (while she was Home Secretary); Cressida Dick
and the demands of her launch day, she took (Metropolitan Police Commissioner); Cath
the time to email back. Kidston MBE (English fashion designer); and
Our offices extend across a house that was Inga Beale DBE (CEO, Lloyds of London).
built in 1720 for a wealthy landowner, who On 18 April 2019, the 100th anniversary of
commissioned its very lavish staircase painting women in law in England and Wales, Christina
in 1722. Throughout its long life, it has served Blacklaws, the President of the Law Society, will
as the premises for tailors. I was therefore be our speaker.
thrilled to kick-start our Women in Business If you would like to join the event, feel free
Series with Kathryn’s story of how she had to contact me directly.
built her global business. I was determined
A
s a firm, Herbert Smith Freehills • was the first law firm to sign the Charter of
(HSF) is committed to being a LGBT Commitment, sponsored by l’Autre
leading global law firm for diversity Cercle (a French association created in
and inclusion. Our ‘Leading for Inclusion’ 1998 to combat discrimination based on
strategy is framed around four pillars: clients, sexual orientation and gender identity) in
talents, innovation and values. In January December 2016;
2015, the Paris office (where I am a partner) • promoted and signed, on behalf of the firm,
Clément
launched its dedicated Diversity and Inclusion the UN Standards of Conduct for LGBTI Dupoirier
programme, led by the Paris Diversity & inclusion, making a commitment to support Herbert Smith
Inclusion Committee, which includes lawyers a culture of respect and equality in the Freehills, Paris
and non-lawyers. Over the last few years, the workplace and the communities in which
Committee has been focusing on promoting we operate; and
gender equality and multicultural diversity, • runs a range of initiatives promoting gender
as well as on raising awareness of the LGBT+ balance (such as our partnership with
community, amongst other initiatives. Arborus, an association promoting women
As part of its efforts to promote diversity, and gender equality) and pro bono advice
HSF Paris office: on women-led initiatives (such as Cité Tech,
• became a member of the French which aims at giving everyone access to
Association for Diversity Managers and is technology).
now one of its board members;
16 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONMY LONDON – MY GENEVA
My London – My Geneva
Home is… Where do you work out?
Jane Colston: Next to the Tate Modern. It and JC: I get my exercise cycling and walking
St Paul’s cathedral never fail to make me stop around London, doing yoga at the atrium
Jane Colston and stare when I walk to work in the morning, in the office with a group from work and
Brown Rudnick, across the wobbly bridge over the Thames. running along the Thames each Thursday
London morning with a group of other litigators (so if
jcolston@ Sandrine Giroud: In a small village just you are in town, join us!).
brownrudnick.com outside Geneva, lost in the vineyards above a
beautiful natural park. The park is a stop- SG: Our firm has a small fitness room and I
over for birds when migrating for warmer enjoy pilates sessions twice a week there, as
horizons in the winter. well lots of walking and running after the bus
to catch my train.
Which local hotels do you stay at?
Have you ever had a run-in with a
JC: As I live in London, I don’t use hotels, but
policeman?
my parents stayed at Claridge’s recently and
it felt like a fabulous scene out of Jeeves and JC: No, but last month I helped the police chase
Sandrine Giroud Wooster. an offender who ran into my flat’s gardens.
Lalive, Geneva
sgiroud@lalive.law SG: Difficult to say, given that I am a local, but SG: Not yet, but my co-trainee and I got a
the Hôtel des Bergues or the Hôtel de la Paix policeman to help us prank our maître de
is always impressive. stage (the partners supervising us during our
traineeship) by making them believe we had
been arrested for collusion in a drugs case.
What are your favourite spots for a meal?
They rushed to our defence and we caught
JC: Spring, in Somerset House, or Pollen them on camera just before they reached
Street Social, around the corner from my court to plead for our liberty. The look on
office. their faces was priceless and they were a good
sport for not firing us.
SG: Our office is in a buzzing area and my
favourite restaurant is L’Adresse, which
What would you do if you were Mayor for
combines creative cuisine and a sophisticated
the day?
‘bobo’ atmosphere.
JC: I would ban cars.
Bus, taxi or tube?
SG: I would definitely follow in Mayor Jane
JC: (Brompton) bike or walk. Colston’s footsteps and ban cars.
SG: Public transport and my feet.
What makes someone a Londoner?
JC: Being outward-looking.
What plays are you seeing this year?
JC: At the National Theatre, Cate Blanchett
What makes someone a Geneva-sider?
in ‘When We Have Sufficiently Tortured Each
Other’, ‘The Lehman Trilogy’, ‘All about Eve’ SG: An openness to the world, together with
and Maggie Smith in ‘A German Life’. humanitarian sensibilities (Geneva is the
United Nations capital of human rights and
SG: I recently enjoyed rediscovering a classic the birthplace of the International Committee
with ‘The Misanthrope’ by Molière and I look of the Red Cross), a pinch of Calvinist
forward to an inspiring play by and featuring Protestantism (Geneva is called the ‘City of
Eric Dupond-Moretti, a French tenor who Calvin’, after all), a Swiss finish and a touch of
will plead and tell war stories from his many creative disorganisation and entrepreneurship.
battles as of one of the best French criminal
defence lawyers.
INTERNATIONAL LITIGATION NEWSLETTER MAY 2019 17You can also read
