Editor: Mr. Solomon, Proskauer Rose recently announced the release of a reference work entitled Proskauer on International Litigation and Arbitration: Managing, Resolving and Avoiding Cross-Border Business and Regulatory Disputes. For starters, what kinds of cases or matters are generally covered by the treatise?
Solomon: International or cross-border business litigation and arbitration encompasses three broad types of controversies that clients have encountered with increased frequency:
Disputes involving companies, property (real, intangible, intellectual), or business practices affecting different countries;
Disputes implicating the laws, legal practices , or regulatory regimes of different jurisdictions; and
Disputes where different possible venues are available to pursue, defend, and resolve the disputes.
Editor: What is the origin of this initiative? It appears pretty ambitious.
Solomon: The Guide - we refer to the book as our International Practice Guide in the hopes of emphasizing the decidedly practical aspects of the discussion and analysis in it - was the product of several important goals of both the Proskauer Litigation Department, which I co-chair, and the Proskauer International Practice Group, of which I'm the litigation head. Several of our most important goals were:
To be helpful to our clients. We saw that there was a real dearth of comprehensive treatments of the issues raised in litigations and arbitrations that touch multiple jurisdictions - even as there was an explosion of such disputes.
Proskauer has extraordinary depth in this area, a point made clear by the fact that nearly 40 authors contributed the 28 chapters in the Guide.
A project like this would give all lawyers at the firm the chance to write, which we all should do more of, and would give senior and junior lawyers a chance to work together. So we saw both practice development and professional development as key parts to it.
Editor: Please tell our readers something about your practice. Specifically, how has your involvement in international litigation evolved over the course of your career?
Solomon: Foreign parties and foreign law first appeared in my cases more than 25 years ago - an expedited trial in the Southern District of New York in which we represented a large U.S. multinational corporation defending against claims of a large company headquartered in Thailand. Soon enough we were confronted with issues that at the time seemed, well, foreign to us, from jurisdiction, to choice of law, to privilege, to evidentiary differences, to judgment enforcement issues that were different because of the cross-border nature of the dispute. Since then, I have been privileged to litigate hundreds of disputes that involve cross-border issues as we define them. There was little practical guidance in the treatises to show us the way. But what seemed novel to us then has become commonplace in our practice today. Sharing that knowledge and experience was a key reason for the Guide.
Editor: I don't want to wait too long without asking about a very novel approach you have taken: publishing the book over the Internet. What was the thinking here.
Solomon: We are serious about this being a useful tool to clients in the main, but also to any serious practitioner in the area. An e-guide is the fastest way to get information out and to keep it up to date. We see the Guide as a living document - as part of an iterative process. We also recognize that clients today expect a sophisticated use of technology by their advisors; that is how nearly everyone communicates and does business these days. Especially in this dynamic area of the law, where the questions, issues, challenges are changing more rapidly than the answers, we needed a way to get information to clients ASAP. The e-nature of the book will do that better than any other way of publishing and will easily permit the adding of additional chapters, as the need arises in the future.
Editor: What is the strategy here? Who is the client you are attempting to reach?
Solomon: The clients the Guide is directed to include the vast preponderance of large or mid-sized and a great many smaller companies which have business or dealings or disputes or face regulatory regimes touching more than one jurisdiction. The international nature of a dispute presents unique challenges but also presents well-counseled clients with actual, affirmative opportunities, whether they are plaintiffs or defendants. The goal of the Guide is to give clients and other interested readers quick, easily searchable access to a comprehensive array of issues that arise in cross-border disputes plus practical, pragmatic approaches to them.
Editor: Why now? Are there developments in the international business and regulatory disputes arena that we should be calling to the attention of our corporate counsel readership?
Solomon: I suspect I'm not telling your readers anything new, but in fact there has been an explosion of international disputes - be they in court disputes, arbitrations, or regulatory investigations and proceedings. Part of that is due to the fact that, as we observe in the Guide, commerce in today's world pays little heed to traditional geographic boundaries. Manufacturing, marketing, and distribution routinely criss-cross the globe. The Internet itself has all but obliterated historical national and state borders. This has led to a vast increase in the number and complexity of cross-border controversies. And what we have seen over and over is that these matters raise unique types of issues - as I say, both challenges and opportunities. The Guide addresses these issues in a comprehensive yet quite practical way.
Editor: Can you give us some examples of why this type of matter is so different?
Solomon: Sure. It is easy to see that, in a case touching multiple jurisdictions, issues such as choice of law or discovery or evidentiary privileges could differ qualitatively from a purely domestic case. But we see more fundamental differences, which are potentially dispositive of the dispute or case. The applicable rules for litigation between two U.S. entities over a "domestic" issue, whether they be federal or state rules, attempt to achieve a careful balance of power in the case so that the case can be resolved on the merits and without any disproportionate effects - heavy thumbs on the scales, so to speak - arising because of the rules of the game themselves. In an international litigation, where for example one party can enforce a judgment but another cannot, or where one party risks disclosure of its communications with its own lawyers (because of a foreign state's rules of privilege) where the other side does not, or where one party's discovery is limited by relevance where the other party's is not - all these create severe imbalance in the system. These asymmetries can have profound effects on the case and on the clients in them. And it is these that create unique challenges and opportunities for clients that those with experience and depth in international disputes can help clients take advantage of or avoid, depending on which side you are advising or representing.
Editor: Who are the contributors? Can you give us a summary of the experience and expertise they bring to this project? What practice groups participated? How about the firm's different offices? This initiative has an international, multijurisdictional orientation.
Solomon: One of the biggest delights for me in this project was to see just how much depth Proskauer had in this area. There are over 40 contributing authors, many with experience as long and deep and diverse as mine. The Litigation Department did the lion's share of the work, but our corporate colleagues, particularly those in our interdepartmental International Practice Group, contributed two excellent chapters - both directed at how to avoid disputes in the first place, which should be equally important to clients. In terms of offices, the participation was fabulous, with important contributions being made by lawyers in our offices in Boca Raton, Los Angeles, New York, and Washington, DC here in the U.S. as well as our office in Paris (with an assist from our office in London).
Editor: I understand the work emphasizes the practical and concrete over the theoretical. Why is this such an important aspect of successfully navigating the international business arena?
Solomon: We thought it was best for clients to have access to practical approaches to issues. That is an elemental aspect of the way the Proskauer Litigation Department works overall; modern-day disputes are simply too complex and large (especially given e-discovery) for clients to be met with theory and speculation rather than concrete advice about solving problems as quickly and efficiently as possible. We succeeded in avoiding lengthy or distracting footnotes and have written the chapters to focus on solving real time problems or taking advantage of real-time opportunities. We added as much practical advice as we could, whether in the discussion of a point or in "practice notes" or "practice tips," knowing that a client's particular case is going to need a special focus and an understanding of the specific facts and circumstances.
Editor: Would you give our readers an overview of the work's contents? What does this compendium cover?
Solomon: There are 28 chapters in the Guide . We used three overarching categorizations: international litigation; international arbitration; and then a few select substantive areas that are particularly active. Within the major categories, we tried to follow a dispute from beginning to end and to address the important topics that arise in these disputes, from seizing or avoiding jurisdiction (both personal and subject matter) at the outset to enforcing or avoiding judgments at the end and everything in between, such as choice of law, the role of comity, discovery and evidentiary issues, ethical and privacy issues, etc. We also treat the complex issues of how all this plays out in regulatory settings given the near-ubiquity of an increasingly active and often overlapping, converging, and diverging regulatory environment.
Editor: How have readers reacted to the book so far?
Solomon: Initial reader response has been enthusiastic. For example, legal consultant Bruce MacEwen, in his highly popular blog Adam Smith, Esq., described the Guide as "everything we need to know about international litigation," "remarkably ambitious," "truly practical and useful," "without precedent online or off," and "a model for the practice of law in the 21st Century" (www.bmacewen.com/blog/ archives/2007/10/proskauer_offers_us_every.html). Another review calls it a "welcome compendium," with a "practical focus," "presented simply and effectively," "tackling issues that are not commonly discussed in the traditional model of private international law texts" and are "particularly helpful to the practitioner aiming," in the author's words, to 'present clients with strategic choices.'" "A useful tool it certainly is." (www.conflictoflaws.net)
Editor: How can our readers go about obtaining a copy?
Solomon: The Guide can be found at www.proskauerguide.com.
Editor: Is there anything you would like to add?
Solomon: Actually, yes. We would love any feedback from other interested readers. We want to make and keep the Guide a useful tool.