THE INTERNATIONAL PRACTICE OF LAWYERS IN THE TWENTY-FIRST CENTURY: FOUR POSSIBLE SCENARIOS

Transnational (or ‘international’, if one prefers to use this term instead) civil proceedings are distinct from domestic civil proceedings, because such disputes relate to matters that transcend state borders. A transnational civil lawsuit can, for instance, relate to a tortious act that a company has committed outside its state of domicile, or a matter in which a consumer sues a producer from another state after having suffered damages from the use of its product. Considering that such proceedings can normally be filed in more than one country, the plaintiff can ‘forum shop’. What is meant by this is that he in principle has the possibility of commencing proceedings in a state whose laws meet most of his needs, provided that the plaintiff and the defendant have not concluded an exclusive choice-of-court agreement in favour of one particular country or an arbitral court. Accordingly, the plaintiff can, for instance, choose to file his case in the state whose laws offer him the highest amount of damages or provide him with the most affordable arrangements on litigation costs. However, the plaintiff can also decide to select the forum court based on the far-reaching interparty disclosure possibilities that the laws of a particular state offer. Not only can this be beneficial in case the plaintiff needs to obtain such information from his opponent in order to win his case, but his decision to address a certain court can also form part of a larger mass claim strategy if a defendant is being sued in multiple countries involving the same – or a similar – event.

Considering that plaintiffs can strategically make use of the differences that exist between various states’ procedural laws, I examine within this book which rules on legal privilege the courts of a number of states apply and how a court should determine the applicable law on legal privilege during international civil proceedings. This question may arise when a litigant has confidentially shared information with a foreign legal professional, who has not been admitted to the bar for lawyers in the state where the proceedings take place (the forum state).