"The Challenges Of Multijurisdictional Litigation Are Going To Be With Us For Some Time To Come"

Tuesday, February 1, 2005 - 01:00

Editor: Mr. Koelzer, would you tell our readers something about your career?

Koelzer: I have been a trial and appellate lawyer for 40 years. I began my career at the U.S. Department of Justice, and since the early 1970s I have been in private practice. I now mainly work on the civil side, and my practice is focused on large commercial cases. This has included insurance coverage cases.

Editor: How did you come to Coudert Brothers?

Koelzer: I moved to Los Angeles at the end of 1992 and took the California bar exam. I had been practicing in New York and New Jersey since 1964, and I represented, then as now, a number of London insurers. During the early 90s, I was dealing with a firm in the Pacific Northwest. They had acquired a Los Angeles office, and they asked me if I would consider moving out here and working in that office. I did, and I am happy that I took this step. In time, that firm closed down its California offices. I went to another firm for a short time, and then Coudert decided that they would like to get back into this area of practice. They had engaged in this area of practice for many years, from the firm's founding in the 1850s until the late 1960s. In any event, Coudert brought me and several colleagues in to resume the practice.

Editor: Our publication is running a series which attempts to address the issues that arise in multijurisdictional litigation -- where the same issues, very often involving the same parties, are being considered simultaneously, or nearly simultaneously, in different jurisdictions. For starters, would you tell us how this development has evolved over the course of your career?

Koelzer: In the last 10 to 12 years this development has really come to the fore. This entails cases underway in the U.S. and parallel cases being pursued in the UK and other non-U.S. jurisdictions. I suppose this is a consequence of globalization, and it is becoming increasingly frequent. Needless to say, because these matters are being pursued in different legal systems, they are becoming increasingly complicated as well.

Editor: Please describe the experiences you have had in your practice with this state of affairs. Is it the case that one team of Coudert lawyers may appear before a court in Shanghai, another in London and a third in New York, all on behalf of the same client and addressing the same issues?

Koelzer: Yes. I can give you a very concrete example, and one that is not at all unusual. At the end of 2001 a large London insurer retained me in connection with a large line they had on the World Trade Center which was reinsured in Tokyo. The reinsurer went into liquidation on New Years Eve of 2001. Coudert's Tokyo office was engaged in the liquidation proceedings in Tokyo; another group in New York, which included me and the head of our bankruptcy office, was engaged in a Section 304 proceeding; and a third group from the firm's London office was handling the English law aspects of the matter from there. We were doing this at the same time, and each team was in constant consultation with the others. We managed to work out a commutation of reinsurance very quickly and very successfully. This type of thing happens all the time.

Coudert Brothers is a truly international law firm. We have offices all across North America, Europe, East Asia, and so on, and where we do not have offices, we have affiliates. This enables us to address complicated issues arising simultaneously in a variety of jurisdictions both expeditiously and in a coordinated manner. Long experience in operating in different jurisdictions has made us very quick on our feet in this regard, and it has also enabled us to be very responsive to the increasingly complicated needs of our global clients.

Editor: How do you work with your colleagues in other offices in such a case? What are the strategies here?

Koelzer: The strategies we utilize depend on the case. In light of the fact that the particular matter may involve a number of different courts, each with a very particularized area of jurisdiction or even expertise, and different legal systems, it is important to have a law firm with its feet on the ground in all of the forums before which the matter is to be heard. Coudert Brothers is one firm with a number of offices. There are not separate profit centers loosely tied into an alliance structure. They are offices comprised of equal partners in a single enterprise who happen to be practicing in different jurisdictions but who are in constant contact with one another in order to develop the best solution for the client. Most of the lawyers in the overseas offices of Coudert are natives of the country in which their particular office is located, and the non-natives who are there serve, among other things, to provide a channel of communication to the other Coudert offices in the development, implementation and coordination of the strategies appropriate for the matter being litigated. I would add that the firm has been doing this -- and doing it in this particular format -- for a very long time.

Editor: There seems to be a number of different models for a global practice today. One of them is the single-branded global firm with a single firm personality and single culture. What you are describing is a bit different from that. I gather that there is a certain amount of autonomy, that the various Coudert offices have their own personality.

Koelzer: As I say, we are a single enterprise - and each office is an integral part of one firm - but there are distinctions among the various offices, and the culture of the community in which that office practices influences its activities. I am admitted to practice in England, for example, and a large part of my practice is London-based. I spend a considerable amount of time each year in London, and I am in a position to say that that office is both local - an English law office -- and part of a global law firm at the same time. I am under the impression that this may be a different model from that utilized by other international law firms. In my experience, some of them tend to be dominated by a home office which attempts to impose a single, firm-wide culture and personality on all of its overseas sites. Such a model, I think, is not conducive to the provision of the best service for the firm's clients.

Editor: How do the courts resolve which court is the appropriate forum?

Koelzer: This is done on a case by case basis. Every case has its own dynamics, and usually the applicable law is one of the principal factors. For example, if the case involves English law, and the matter involves parallel proceedings in England and the U.S., it is highly likely that the English court is going to proceed and apply English law. Other factors include what is most convenient for the witnesses, for the parties, the availability of evidence, and so on. There is no hard and fast rule, but there are a few common sense guidelines in this area.

Editor: There is a considerable body of jurisprudence concerning forum non conveniens in the common law tradition. How has this figured in your experience and practice?

Koelzer: It comes up very frequently. In the U.S. a forum non conveniens motion is made in the court which is where the action was filed. That is not always possible in the international arena. Not every jurisdiction follows due process rules in precisely the way we do. Nevertheless, the considerations for transferring a matter from one court to another in the international arena are not too dissimilar from those governing such a transfer within the U.S., and they tend to be practical in nature and arise on a case by case basis.

Editor: Are there common denominators from one jurisdiction to the next?

Koelzer: Yes. For example, what law is being applied? Where did the events under review take place? Where are the witnesses, and which forum is most accessible to them? Where is the evidence? Above all, what is the most convenient and practical way to handle the matter, and where might that be accomplished? These are the common themes that run through all of these matters.

Editor: As globalization proceeds, and as more and more different legal persona join a single global economy, are the challenges in this area receding? Or is it the case that the ability to conduct business in a variety of jurisdictions all at once makes the challenges even greater?

Koelzer: Interesting question. My reaction is that the challenges of multijurisdictional litigation are on the increase in consequence of globalization. Over the course of my career, an increasing number of corporations once considered American or British or German or Japanese are becoming multinational corporations, and the business they are conducting is truly global in its scope. Trade with China is a good example. It has exploded in recent years. Every jurisdiction that is called upon to contribute to the international legal framework must address the issues of trade with China because that trade has become absolutely essential to the health of the global economy. In my case, many of these issues revolve around American insureds, with coverage originating in London, engaged in trade with China that may be conducted in China itself or in a dozen other destinations that are essential to the global economy. The issues are new, and they are very complicated. All of this reinforces the need for the rule of law - a principled and reasoned system of law that injects an element of predictability into the process - if commercial activity is going to be the purpose of the global marketplace. As an aside, I would say the most crucial problem that Russia faces, and has faced since the demise of the Soviet Union, is the necessity to convince the rest of the world that the rule of law prevails in Russia and that a level of predictability exists that is sufficient to attract commercial activity, and investment, to the country.

Editor: There are several important patent systems in the world today. With globalization, they are coming to resemble each other, in their procedures and basic concepts. Is anything similar happening with respect to multijurisdictional litigation?

Koelzer: I do not think so. England and France, and other EU countries, are close in a variety of ways, but their legal systems differ in some very fundamental ways. Even with the emergence of a global economy, I do not see a convergence between, say, the English-speaking common law systems on the one hand and the civil code systems on the other. For such a convergence to occur, one side or the other would have to give considerable ground, and I do not see that happening any time soon. What I do see is a global commercial system governed by the rule of law and drawing upon a variety of legal systems. That is to say, the challenges of multijurisdictional litigation are going to be with us for some time to come.