Litigation

1) Introduction

Litigation between States in the International Court of Justice (ICJ) was considered earlier in the Manual. This chapter will look at litigation in the national courts. National courts may be used in the context of international commercial disputes for a variety of purposes, for example:

* as a forum for resolving disputes in cases where one or more of the parties is an 'overseas' or foreign party;

* as support machinery for the arbitral process;

* as a forum for challenging or enforcing foreign commercial arbitral awards.

2) National Courts as a Dispute Resolution Forum

Despite the increasing use of international commercial arbitration backed up by the New York Convention, litigation in the national courts is probably still the major international dispute resolution process in use.

In the context of international contracts, the major problem in relation to litigation is the prospect for one of the parties of that litigation taking place in the courts of a foreign country, conducted in a foreign language and under a foreign system of law. However, litigation may be the dispute resolution process used for a variety of reasons:

* No contractual provision is made for dispute resolution;

* The bargaining power of one party is such that it is able to insist that litigation takes place in the courts of a country of its choosing;

* It is a deliberate, consensual choice of the parties. For example, parties may choose the English courts as the forum for resolution of any disputes that may arise under the contract, and additionally may choose English law as the law to govern that contract. More than 80 per cent of the cases heard in the Commercial Court in London have no connection with England in the sense that either the subject matter of the contract has no connection with the country or one or more of the parties is not English.64

An example of overseas parties litigating in the En...

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