Click on each of the following questions to view the answer.
You can initiate contact with ILN by filling-out the information on our Contact Us page. One of the fields to be filled-out is the state in which you expect to need US counsel.
After ILN receives your initial submission, the law firm in the geographical area that you indicated will conduct a conflicts check. Assuming that the law firm would have no conflict in representing your company, that firm will be in direct contact with you by e-mail. At that point in time, you will receive the full name of the law firm, and you will be able to review the web site of that firm and obtain any other information regarding it -- all before signing any retention agreement or otherwise making any commitment to work with any ILN firm.
In the meantime, you can access biographical information regarding that law firm and all of the ILN law firms on the Map of Metropolitan Areas page on the ILN web site?
No. It is not necessary to file a law suit in the US -- the only proceeding in the US that needs to be commenced is an application for discovery.
As a general rule, it is necessary to provide the American court with an overview of the non-US law suit and how the requested discovery is relevant to that proceeding. Only in very rare cases would the papers in support of a section 1782 application be as complicated as those of a law suit. The party seeking section 1782 discovery needs to submit a declaration setting forth the facts that form the basis of the section 1782 application.
No; as a general rule, there is no need for an affiant/declarant to execute any papers before the US Embassy or Consulate, so long as the affiant/declarant affirms, under penalty of perjury under the laws of the United States of America, that the statements in the declaration/affirmation are true and correct.
Many but not all courts that have addressed this issue since 2004 have ruled that section 1782 discovery is available in connection with non-US arbitrations.
Most courts that have addressed this issue have ruled that, if the requested discovery appears to be an attempt to bypass (or "end-run") a ruling of the non-US court, the application for discovery will be denied.
Yes; as a general matter, a representative of the party taking the deposition would be entitled to attend the deposition in the United States. We generally recommend to non-US clients involved in section 1782 depositions that it is worth while to send a representative who is familiar with the non-US case to the United States to provide real-time assistance to the American attorney who is taking the depositions.
It is almost never too early for a non-US claimant to contact American counsel about the possibility of enforcing a future judgment from a non-US court. In our experience, the input of experienced international litigation practitioners can be extremely valuable in helping to craft factual allegations that greatly increase the chances that an American court will recognize the future non-US judgment.
As a general rule, the answer is no. However, most of the firms in the International Litigation Network recommend that, before commencing any enforcement proceeding, you obtain a written (and updated) asset report from a reputable private investigation firm regarding the assets of the debtor-defendant. It is possible that, on a case-by-case basis, after reviewing such an asset report and evaluating the facts of the case, a law firm in the ILN network would consider taking on the representation on a basis other than a purely hourly basis.
As indicated above, the ILN law firms rarely handle cases on a contingency basis. For comparison purposes only, we note that most American law firms that handle enforcement of non-US judgments on a contingency basis charge at least 33% as their contingency fee. When the amount of the judgment is less than $100,000, it is common for the percentage of the contingency to be as high as 40% (and sometimes higher).
ILN is very different from a collections agency. To the best of our understanding, collection agencies (a) generally do not employ attorneys who have substantial experience in enforcing non-US judgments before American courts, and (b) generally handle non-US judgments in a manner similar to how they handle other (litigated and non-litigated) claims.
To the extent that the standard operating procedure of most collections agencies would be to send a "lawyer's letter" to the judgment-debtor (the defendant), we believe that, in many cases, such an action would be ill advised. In our view, having already litigated its case before a non-US court, the non-US creditor should usually attempt to obtain an order of attachment as to the assets of the debtor and that, whenever possible, such an order should be requested on an ex parte basis. We believe that the sending of a lawyer's letter could impair the ability of a judgment-creditor to effectively use an order of attachment.
To the best of our knowledge, collections agencies generally do not attempt to obtain an order of attachment when they represent a creditor that has already obtained a judgment from a non-US court. Also, to the best of our knowledge, collections agencies have limited experience in evaluating the best forum for a non-US claimant to commence its suit against an American company.
The general rule in the United States is that, if a defendant in an enforcement proceeding calls to the attention of the court the filing of an appeal before an appellate court in the country in which the judgment was rendered, the American court may stay the adjudication of the proceeding for recognition of the non-US judgment. However, the appeal itself is not necessarily an obstacle to commencing an enforcement proceeding.
Generally, an enforcement proceeding is most effective if it is brought in the state where assets of the foreign judgment debtor are located -- even if judicial jurisdiction could be obtained in another state. For example, if the debtor is a corporation incorporated under the laws of the State of Delaware but has all of its assets in California, it would generally be recommended to bring the enforcement proceeding in California.