Under Turkish law, the rules governing the collection of trial fees are regulated by the Law of Fees No. 492 (Law no. 492) and the applicable fees are under Tariff 1 of the Law no. 492. Article 4 of Law no. 492 also explicitly refers to Tariff 1 in terms of the fees applicable in the actions for enforcement of foreign judgments stating that the applicable fee will be determined according to the value, type and nature of the verdict.

The general rule under Tariff 1 is when the claim is a monetary one and a judgment is made on the merits of the case, a proportional court fee (judgment fee) which is calculated over the total amount subject to the dispute applies. The judgment fee is 6.831% [CHK – please confirm] of the total amount in dispute and ¼ of the judgment fee is required to be deposited in advance when filing the case (application fee).

Article 4 of Law no. 492 and the nature of the actions for enforcement of foreign judgments, which allows an examination merely on the existence of the conditions sought for enforcement, make the applicable application fee controversial in practice. While some scholars argue that Article 4 of Law no. 492 requires the application fee be proportionate and an adverse practice cannot be allowed unless the said provision is amended, others defend that actions for enforcement of foreign judgments are declaratory actions with no judgment on the merits and should be subject to fixed application fee. This controversy does not stay at academic level only; courts (of all levels) do not have a unified practice either. This riddle closely concerns the official attorney fees to be ruled in favour of the winning party as well because whether it will be a fixed or proportionate one depends on the solution of the very same controversy.

This ambiguity justifies a wait-and-see approach when initiating the action before the first instance court. That means the case can be filed by depositing the fixed fee only. If the court disagrees, it may, either ex officio or upon the objection of the defendant, order the plaintiff to deposit the missing portion of the application fee and grant a definite period for that. After this point, it is required to comply with the court’s order. Otherwise, the case file will be shelved first and unless renewed within three months, be deemed as non-filed.

If the first instance court also opines that the applicable fee should be the fixed one, the plaintiff can save its money during the first instance stage. Yet, a missing application fee can appear as an appeal ground or, depending on which chamber is assigned to the case, the Regional Appellate Court can ex officio decide that the missing portion must be deposited. Yes, there is not a unified practice between the appellate courts of different regions or the chambers within the same region either! When the decisions of the Istanbul Regional Appellate Courts in the last two years are reviewed, we see that the 16th, 17th and 44th Chambers ruled that the enforcement actions are declaratory actions and should be subject to fixed application fee whereas the 6th, 12th, 13th, 14th and 15th Chambers ruled in favour of a proportionate application fee pointing out Article 4 of Law no. 492. We also see conflicting decisions between the 22nd Chamber ruling for a proportionate application fee and the 31st Chamber of Ankara Regional Appellate Court ruling for a fixed application fee whereas one decision from the 17th Chamber of Izmir Regional Appellate Court favours the proportionate application fee.

Not surprisingly, the same divergence also exists between the different chambers of the Court of Cassation. It is almost the settled practice of the 11th Chamber of the Court of Cassation, which is the chamber with expertise in commercial law and is assigned for disputes concerning the Turkish Commercial Code, insurance and banking law, to rule in favour of the fixed application fee in enforcement actions pointing out the declaratory nature of the case and also in defence of right to access to court. The 11th Chamber has maintained the same approach in its precedents of the last two years except a decision in 2021 where it approved the decision of the 14th Chamber of the Istanbul Regional Appellate Court ex officio ruling in favour of a proportionate application fee. This decision stands as a unique one in between the decisions of the 11th Chamber. In fact, it does not even discuss the applicable fee and seems not like a conscient decision.

The 6th Chamber of the Court of Cassation, with expertise mainly in contracts of work, construction contracts on land share or flat basis, adopts the same approach as the 11th Chamber whereas the 7th Chamber, with its expertise in property law, and some other chambers, mostly experienced in inheritance and family law, rule in favour of the proportionate application fee.

This riddle creates an uncertainty in terms of the costs that a party seeking to enforce a foreign judgment would encounter during the entire trial period. Besides, one of the possible scenarios results in a reiteration of similar costs that the plaintiff covered when initiating its main claim in the first place in the relevant jurisdiction. This is one of the arguments that the supporters of the fixed application fee rightly rely on as the contrary case significantly hinders the right to access to court. Yet, it is also correct that Article 4 of Law no. 492 clearly refers to the value of the verdict in determination of the applicable fee, allowing the collection of the proportionate application fee. For this reason, even those favouring the application of the fixed application fee criticise the decisions of the 11th Chamber of the Court of Cassation deeming them contrary to the clear provision of the law. Precedents are dynamic and one is not binding on another. As long as the law allows, the practice of the chambers favouring the fixed application fee can also change. It is therefore crucial also for legal certainty for the lawmaker to address this issue with an amendment to Article 4 of Law no. 492.

This partly happened for enforcement of foreign arbitral awards when the relevant section of Tariff 1 was amended in July 2016, stating that proportionate fee would not apply for arbitration proceedings. The amendment was not specific to enforcement actions, but to arbitration proceedings that require the courts’ involvement, and this also has caused different interpretations as some courts and chambers of the Regional Appellate Court and Court of Cassation avoided applying the fixed fee because the amendment did not concern the enforcement actions. After the decision of the General Assembly of Civil Chambers of the Court of Cassation in 2019, ruling that the 2016 amendment requires the fixed application fee, the practice of the courts in enforcement of foreign arbitral awards has become more settled in favour of the fixed fee. Yet, adverse practices, especially among the chambers of the Regional Appellate Courts, still exist as we see in the last two years’ decisions. This demonstrates the need for the lawmaker to take actions with clear legal provisions removing this ever-lasting riddle. The more settled practice of a fixed application fee in enforcement of foreign arbitral awards is another reason to clarify the issue in terms of enforcement of foreign judgments as adopting different rules for these very similar enforcement procedures is purposeless.

I still don’t regard myself as a proper ‘lawyer’ as such. Despite 35 years in practice at the Bar, 21 of which have been in silk, I still regard this whole thing as extended work experience to see if this might be the right career for me.

I was on the verge of starting a doctorate in History at Oxford, when my brilliant and very perceptive tutor at Balliol, Oswyn Murray, told me frankly that he just didn’t think I would enjoy a lonely three (or more) years in dusty archives which the completion of a D. Phil would require, nor the years of penury which would follow if I pursued the academic career I hoped for. It was Oswyn who suggested that the Bar might be a better alternative to academia – just as intellectually stimulating, but with more financial security and more variety. I thought I would give it a try.

When I started in practice at Fountain Court, new members were sent off to spend three months in a criminal set to gain advocacy experience.After a week following an established criminal barrister, we were let loose on actual cases. One of my first outings involved a plea for mitigation in the Crown Court. Halfway through my oration, I heard a scuffle at the back of the court – my client had jumped over the rail of the dock and had done a runner, possibly displaying less than complete confidence in my advocacy on his behalf.

My career hasn’t involved any warfare or even minor hostilities on my part. There are better ways of winning (or trying to win) cases without unnecessary friction. Certainly my single worst experience was being repeatedly shouted at by an angry judge in the Admin Court who hated my client’s case. We obviously went down in flames. We did win on appeal though.

Since 2016 I have led Ukraine’s defence of a claim brought on behalf of the Russian Federation in respect of the first tranche of a $15bn loan programme by way of a bond issue, which Ukraine asserts was induced by duress prior to the Russian invasion of Crimea in 2014. We lost at first instance, but we won in the Court of Appeal and, eventually, in the Supreme Court. The case involved frequent trips to Kyiv to see my marvellous Ukrainian clients at the Ministry of Finance, before the dark days when this became impossible after the outrageous 2022 invasion. Commercial litigation is hardly ever black and white in terms of the morality of the litigants, but this is a case where I really do feel that we are on the side of the angels. Alex Gerbi at Quinn Emanuel has handled a really difficult case with great dexterity and dedication to the cause, despite the huge practical difficulties the case has thrown up.

I was also involved for over a decade acting for the Bank of England in the monumental Three Rivers litigation.I started the case as the baby junior in a large team assembled by Freshfields and ended the case as a silk. The case collapsed when the liquidators unexpectedly threw in the towel midway through the course of a trial which had already lasted two years, including the longest opening speeches in English legal history, and several interlocutory trips to the Court of Appeal and House of Lords along the way. The widespread allegations of systemic dishonesty said to have infected the Bank of England’s supervision of BCCI were without merit, but aggressively pursued over many years. Mr Justice Tomlinson’s eventual judgment vindicating the Bank of England’s conduct was a very gratifying read.

Most recently I led for the DAF parties in the PACCAR case on litigation funding. Having lost twice at first instance and on appeal, I was not hugely optimistic when we showed up at the Supreme Court. The successful outcome there (by a 4-1 majority) was a very welcome surprise, but has made me very unpopular in certain quarters. The outcome was (I think) analytically correct as a matter of statutory interpretation, but against the settled market understanding of many years. Throughout, Travers Smith (Huw Jenkin and Caroline Edwards) remained true believers and persuaded the clients to carry on the fight. The government has said it plans to reverse the outcome though legislation, but regulation of the litigation funding sector may be the price it has to pay — which may be no bad thing, if properly done.

Normally barristers don’t really have to manage anything, but I was head of chambers of Fountain Court between 2018 and 2023, having been deputy head between 2013 and 2018. We concentrate quite a lot of responsibility in the office of head of chambers at Fountain Court and my colleagues would probably say I was at the more autocratic end of the spectrum – perhaps, at best, a benign dictatorship! My time in chambers before then had taught me, over many years, that attempts at more democratic engagement in a large set (now with more than a hundred members) tended to disintegrate into a cacophony — where any unifying consensus was more or less impossible. This is compounded by the fact that barristers have a short attention span for management and administration depending on how busy they are running their own practices at any given time. I was head of chambers during the Covid years, which required a bit of dexterity and imagination to keep chambers ticking over and eventually to coax people back into chambers. My management style nowadays, such as it is, is to be the passive recipient of management by others without any attempt at backseat driving — finally to enjoy focusing on my own practice while my eminent successor runs the show!

How would my team describe me? Frankly, I dare not ask, so I am not entirely sure. Possibly ‘high maintenance, but appreciative’.

It can be quite gruelling to last the course in heavy commercial work. The more senior you get the less easy the work becomes. In the early days of Three Rivers I was led by the late great Sam Stamler QC at the tail end of his long and illustrious career. He invited me to tea at One Essex when I was first instructed, which came as a surprise for the most junior barrister on the team, but he was genuinely interested to hear my take on the case with a fresh set of eyes. While we were chatting his senior clerk brought in a new set of papers for him. Brandishing his scissors, Sam said he still felt a thrill of excitement when he cut the pink tape on new instructions with brand new facts. I have never forgotten that sense of effervescent joy in his work. Perennial gloom merchants tend not to thrive at the Bar. So, ultimately, leaving aside all the obvious attributes around intellect and advocacy, I would say it takes curiosity, positivity, and stamina.

I don’t see any great changes on the horizon for claimant litigation. Claimant work may go through a period of flux while the funding sector sorts itself out after PACCAR, but otherwise I see no dark clouds gathering (words I may come to regret).

Outside of work, I spend my time on food, wine, cinema, and friends. As a family, we love adventurous holidays, our best-ever trip being an extended journey around Alaska in 2018. I still read a lot of history books, my latest being The Restless Republic by Anna Keay, about the interregnum between Charles I and Charles II – a period about which I knew only a little, and the book was, surprisingly, a real page turner.

We used to ask pupillage candidates to name their favourite film, but gave up when virtually everyone said The Shawshank Redemption. This is undoubtedly a great film but not my favourite. My answer would vary depending on when I’m asked, but if I had to pick one film it is (possibly out of nostalgia and at the risk of cancellation) Woody Allen’s Play It Again, Sam, a very clever and funny take on another great film, Casablanca. Naming a favourite book is very hard. A shortlist would include Middlemarch, The Remains of the Day, and War and Peace. Ultimately, I think Tolstoy shades it.

My biggest inspiration within the law was my first pupil master – the late Trevor Philipson QC, simply the most stylish advocate I have ever seen in action. He made advocacy look effortless, but this was all backed up by prodigious preparation beforehand.

Outside the law and in every other realm, my biggest inspiration is my beloved late wife Catherine, about whom I think every day and try to imagine what she would have advised we do about any situation. She was invariably right.

My biggest achievement is raising four lovely and rather interesting children, who are never boring. They had to manage without their mother during some of their formative years, but they are all stumbling along in life in a vaguely straight line. I am quite proud of that.

Bankim Thanki KC is a silk and served as head of chambers from 2018 to 2023 at Fountain Court Chambers.

What are the key legal frameworks and regulations governing dispute resolution in Honduras?

At the heart of the Honduran legal framework lies our Constitution. This foundational document defines the boundaries within which disputes are adjudicated and resolved.

Complementing this bedrock are other legislative pillars such as the Civil, Civil Procedure, and Commercial Codes. A thorough understanding of these instruments, allows us to navigate through the litigation pathway, ensuring that our clients’ interests are safeguarded with utmost diligence.

Other rules related to business are the provisions in the Labour and Tax Codes, meticulously crafted to address the nuances of employment and tax disputes, respectively.

But our legal tools extend beyond mere litigation. The Arbitration Act provides a robust framework, granting the parties expediency in resolving complex commercial disputes, as well as providing the possibility for professional associations and chambers of commerce to organise their own arbitration centres.

Also, Honduras’ commitment to international law adds another layer of complexity to our practice, should we navigate the web of treaties to which Honduras is a signatory.

Can you provide an overview of the current landscape of the disputes legal market in Honduras, including major law firms and key players?

The legal disputes landscape in Honduras has evolved mirroring the country’s economic growth. Litigators have accumulated expertise in oral judicial and arbitration proceedings since the beginning of this century.

Among others, Arias and its distinguished specialist Fanny Rodríguez, stand out for their effective handling of complex commercial disputes. Juan José Alcerro Milla and Enrique Rodríguez Burchard, from Aguilar Castillo Love, have proven to be experts in the area, garnering legitimate recognition. Consortium’s Gustavo León-Gómez, Rafael Rivera Ferrari and Ulises Mejía have positioned themselves as a prestigious team also.

In parallel, boutique law firms, such as those under the leadership of Leonidas Rosa Suazo, Carlos Fortín, Aldo Cocenza, Fabian Villeda and Eugenia Taixes, deserve acknowledgement.

The gradual development of these firms has contributed to spread the culture of arbitration, instilling confidence in the business community.

Some individual practitioners who cater to diverse types of clients and matters before the courts include Maribel Espinoza, Félix Irías Rodezno, Marcio Barahona, and Max Salgado.

Emphasising specialisation, strategic argumentation, and adaptability, these firms and sole practitioners collectively sculpt the Honduran litigation atmosphere.

How is alternative dispute resolution (ADR), such as arbitration and mediation, commonly utilised in Honduras? Are there any recent trends or developments in this area?

Arbitration and mediation in Honduras have emerged as the preferred means for resolving local or international commercial disputes. Consistent with the principles developed by UNCITRAL, arbitration is particularly conspicuous for business transactions.

The joint efforts of the Chamber of Commerce and Industry of Tegucigalpa (capital city) and that of Cortés (industrial capital city), have significantly promoted arbitration. Proceedings are supervised by each of their arbitration centres (Cortés has recently updated its rules). It is very important to note that the voidance of an arbitral award in Honduras can be submitted to a new arbitral tribunal.

What are the primary types of disputes that businesses and individuals typically encounter in Honduras, and how are these disputes usually addressed through the legal system?

The most common disputes encountered include energy, construction, health, tourism industries, and international trade. All these require sophisticated analysis, prompting tailored counselling to address the unique challenges faced by clients.

The practice of dispute resolution is proportionate to the complexity and economic importance of investments. Compliance, antitrust, insurance, labour and tax matters are usual as well. The crisis on the international transportation of people, cargo, goods, and merchandise, has naturally increased civil and commercial conflicts.

Lastly, as regards to the distribution of imported products, they often lead to disputes over grounds for termination, alongside damages compensation.

What role does technology play in the disputes legal market in Honduras? Are there any advancements or innovations that are shaping the way disputes are handled?

In Honduras, technology plays an insignificant role in litigation, despite gradual improvements following the pandemic.

Collective willingness to embrace technological advances in dispute resolution and adapt traditional practices to meet the imperatives of the digital age, certainly represents an opportunity to increase justice efficiency and accessibility.

How does the legal market in Honduras handle cross-border disputes, and what mechanisms or agreements are in place to facilitate international dispute resolution?

Cross-border litigation in Honduras is managed under several international instruments to which Honduras is a signatory, such as the New York and the Singapore Conventions, in addition to applicable domestic law.

The Arbitration Act of Honduras clearly gives the parties to a cross-border transaction the freedom to submit to international commercial arbitration and to the substantive law of the parties’ choice (not contrary to public order).

Are there specific industry sectors in Honduras that are more prone to disputes, and what unique legal considerations should businesses in those sectors be aware of?

On the side of investment arbitration, as noted above, the energy sector has seen the most cases recently. Regarding commercial arbitration, in our experience, we have noticed a relevant number of disputes related to the construction industry too. Conflicts resulting from private property limits are also constant.

Increase in judicial backlog due to Covid-19 lockdown, discourages its use, thereby evading the search for truth and justice through court or arbitration.

The combination of the above is deemed serious since it may lead to the continuous and unmarked violation of the law or the unfair resolution of disputes, should businesses lean on pacta sunt servanda as the saviour principle of all legal relationships within Honduras.

In light of recent global events or changes in the political and economic landscape, what impact, if any, has there been on the disputes legal market in Honduras?

Globalisation allows that, despite certain weaknesses on the institutional and business environments in Honduras, the country is still the recipient of local and foreign investments.

The biggest investors in Honduras still come from the US and Spain, as well as a few other European and Latin-American countries. Perhaps, Chinese investments are on the horizon, after the recent start of diplomatic bilateral relationships.

Honduras’ legal uncertainty has prompted political turmoil, and the business community is very concerned with this situation.

In the end, litigation demands a confluence of expertise, experience, dedication, and finesse, we must persistently push back and hold the line as lawyers, for the sanctity of justice and the rule of law in Honduras.

 

What are the current trends and developments in the disputes legal market in Mexico, and how do they impact legal practitioners?

During the last decades, the dispute legal market has been in constant growth in Mexico. The nearshoring phenomenon has caused Mexico to become the biggest commercial partner for the US, and foreign companies settling in Mexico are in constant need of more sophisticated legal services. This has caused many foreign firms to acquire or merge with firms in Mexico, providing legal services subject to a more rigorous competition every day.

Even with these changes, Mexico is not increasing its ethical environment, particularly in the field of litigation, where multimillion-dollar disputes are commonly hostage of courts that are unduly influenced. Succeeding in this environment demands highly technical skills, and in high-stakes litigation, to challenge arbitrary decisions up to the final instances, including the Supreme Court of Justice.

Can you provide an overview of the key regulations and legal frameworks that govern dispute resolution in Mexico?

Commercial disputes in Mexico are governed by the Commercial Code, which includes the rules for oral commercial trials, written commercial trials (the exception), summary commercial trials and other special proceedings, including those for the assistance and supervision of commercial arbitration. In the absence of express provisions, the Federal Code for Civil Procedures applies and, ultimately, the respective local code for civil procedures.

All judicial proceedings are subject to a last-instance recourse called ‘amparo’. Amparo is a constitutional recourse intended to protect human rights and due process and is available for individuals and companies. Most practitioners are of the opinion that this last recourse is necessary to ameliorate the effects of trial courts that are generally susceptible to undue influences; however, they create a substantial layer of delays and costs that need to be considered when companies are faced with the choice between arbitration and judicial proceedings.

How has the demand for dispute resolution services evolved in Mexico in recent years, and what factors contribute to this change?

International firms are acquiring or merging with smaller local firms to reach a wider range of clients worldwide. In addition, many boutique litigation firms are constantly emerging. Firms are faced with the challenge of attracting talented attorneys and keeping them as part of their teams.

What are the common types of disputes that legal professionals in Mexico are currently handling, and are there any emerging areas of contention?

It is common for boutique firms to specialise in certain areas of the law, but one of the many trends in the market is the existence of interdisciplinary litigation with cross-border effects involving high-stakes disputes, which require a ‘complex litigation’ team. These cases require a high degree of legal expertise and meticulous management.

Another trend has been caused by the political environment in Mexico. The current president in Mexico does not have the qualified majority of Congress necessary to amend the Constitution and reverse many of the liberal reforms of his predecessors. When faced with this reality, the current administration along with the favouring fraction of the legislative branch, have enacted dozens of federal statutes that contradict the Mexican Constitution. This has caused a new type of specialised litigation for our firm: amparo recourses against legal reforms that contradict the Constitution and, in some cases, reforms that pass without following the legislative process. In this type of litigation, obtaining injunctive relief becomes vital for the survival of certain companies.

How do cultural and regional factors influence the approach to dispute resolution in Mexico, and how do legal practitioners navigate these dynamics?

Mexico is a civil law country immersed in a formalistic approach to evidence, aiming to avoid bad faith conducts (unlike other countries, that are based on assuming that everybody acts in good faith). The trend, however, is to create more flexible procedures where good faith is considered, and also, where trials are handled orally and there is a more immediate approach to the legal truth. This has been an influence from the common law system of our northern neighbour. An example, during the pandemic, the litigation migrated from a system where submissions were made and filed in hard copy, to a system that operates electronically. This has ameliorated the formalisms, as electronic documents – that need to be sworn to be truth – are now considered as originals, unless they are objected to by one of the parties or unless the court exceptionally orders the parties to submit them in hard copy.

Are there any notable challenges or obstacles faced by legal professionals in the disputes market in Mexico, and how are they addressing them?

Corruption and lack of preparation have been historic obstacles in our judiciary, particularly in state courts. There is still a lot to grow in this area, and at least the policy of the judicial committees is to show zero tolerance to corrupt public servants. Legal professionals facing this kind of trouble may resort to administrative complaints against judges and/or their personnel (something unusual in most countries). In parallel, the proper use of amparo recourses generally resolves the deficiencies that may be observed during a trial.

With respect to ADR, although arbitration and mediation have seen a continued growth, they still face challenges. Mediation has not permeated the business culture. And in arbitration, arbitrators with heavy loads of work, even when they have a good reputation, tend to be superficial when analysing and resolving the cases. Choosing the right arbitrator is of the utmost importance when commencing an arbitration.

What role do alternative dispute resolution methods, such as arbitration and mediation, play in the Mexican legal landscape, and how have they evolved over time?

Alternative dispute resolution methods are developing widely in Mexico, nevertheless they have not permeated enough within underlying agreements among national companies, while almost all transnational contracts include arbitration clauses. One exception is maritime agreements, particularly charter agreements, which include arbitration clauses by default. However, the problem in maritime arbitrations is that they are regularly seated in the US or the UK, even in cases where both parties are Mexican companies. This situation increases the costs of arbitration procedures and in many cases complicates the enforcement of provisional measures (for example, arbitrators’ measures are not enforceable in Mexico if they are issued in an arbitration with a foreign seat).

How are advancements in technology impacting the disputes legal market in Mexico, particularly in terms of case management, evidence gathering, and communication?

To this moment, most international firms have adopted a form of case management platforms; for example, to automatically review and follow-up the dockets of federal and local courts. Likewise, there are new tools to assist in the organisation and selection of documents during an arbitration or litigation case, that help to minimise costs. Also, during and after the pandemic, other technologies like videoconferencing and serving the parties via e-mail (which has been used in arbitration for a long time) have been implemented in judicial proceedings, something that has significantly reduced times and costs, and more importantly, are friendly to the environment as they avoid paper waste.

In our consideration, artificial intelligence has still not impacted the dispute practice in Mexico. The challenge is to implement AI tools that do not expose sensitive data of the cases and clients. Our firm is currently working in developing AI tools that respect clients’ data and will cause efficiencies in favour of our clients.

Can you discuss any recent landmark cases or legal precedents in Mexico that have significantly shaped the disputes legal market?

As explained above, the legal reforms proposed by our current President have triggered various amparo recourses. We have successfully obtained federal judgments declaring the unconstitutionality of those laws, in the maritime, scholarly research and mining sectors, as well as in some pro-bono cases defending the confiscation of trusts that were created in benefit of the public servants from the federal judiciary.

In these sectors, the firm has secured dozens of favourable Amparo resolutions as well as stays to protect the mining and marine companies’ rights and is representing on a pro-bono basis over 100 researchers and personnel of the judiciary to protect their rights. This new area in the firm has emerged from the current political situation of our country.

How are law firms in Mexico adapting their strategies and services to meet the changing needs of clients in the disputes legal market, and what competitive trends are emerging in the industry?

As explained in the first question, the current trend is for attorneys to become more specialised and sophisticated. Competitive firms are hiring top talents that fulfil these expectations and adapting programmes of continued education for both junior and senior associates. As technology is changing the face of litigation and arbitration, the attorneys must also evolve.

For more information contact

Vicente Bañuelos Rizo
Partner
E: [email protected]

Gabriela Ángel Navarro
Senior associate
E: [email protected]

I am the third generation in my family to have taken up law, following in the footsteps of my grandfather and father. My father was a partner at one of the top law firms in Mumbai and some of my best memories are of sitting in his office during school summer holidays, listening to him advising clients and watching with awe as they would listen. In my eyes no-one was smarter than my father, who clearly had the attention of every client.

I do not think there was ever any doubt in my mind of what career path I wanted to take. Perhaps, there was a flinching moment when I toyed with the idea of journalism or of veterinary science – but that was just a passing phase. I was always sure that I wanted to pursue law – have clients hang on to my every word like they did with my father.

The first day of law school also coincided with the first day of joining my father as an intern. At the time he was doing an interesting case which was the largest Indian bank scam of that time. That’s when I fell in love with disputes. I would be tasked with the important job of carrying the papers to the court every day, but that is where I watched some of the greatest intellectual minds arguing and cross-examining witnesses. It was thrilling to say the least. Hence when I came to London to pursue my LL.M, one of my main subjects was international arbitration.

If not for law, I probably would have been a travel and food journalist. I could have combined my love for travelling with my storytelling skills. I am passionate about writing, especially poetry. I love to explore new places, experience varied cultures, and taste different cuisines. I was lucky enough to take a month-long sabbatical to Antarctica in December 2023 which was the trip of a lifetime, and something that I am writing about. Luckily, with international arbitration one gets a chance to travel to different destinations and make friends all over the world.

Although I have been lucky to have been involved in some of the largest and most complex litigations and international arbitrations over the years, the most memorable case that stands out to me was saving the stray dogs of Mumbai. I was in law school when newspapers exposed the inhumane way stray dogs were being killed in Mumbai. I still had not got my practising certificate, but a colleague and I managed to convince an animal rights organisation to let us assist them without any charge in approaching the courts to stop the merciless killing. Other animal organisations also joined the movement. I was suddenly a law student with one of the largest clienteles in Mumbai. I spent days, weeks, and years working through weekends, spending my spare time drafting pleadings and approaching junior and senior barristers in Mumbai to appear for us in court. The case went all the way to the Supreme Court of India, and we were successful. The sense of achievement I got from saving innocent lives was second to none. The case taught me to pursue what I believed in, and to face challenges head on.

My managerial style is to empower and support my team to perform at its best, whilst also fostering trust, collaboration, innovation, and a positive, friendly, and open work culture. I try to involve the team in decision making since it fosters a sense of ownership and a commitment to a common vision. I am intolerant of bad behaviour – it undermines trust and a healthy culture. Ultimately, I have learnt that being intolerant of bad behaviour but providing mentoring, empathy, constructive feedback, and recognising individual contributions makes everyone feel valued and this is key in getting the best results.

What does it take to make a great disputes lawyer? Hard work! Hard work! Hard work! That is the mantra, and there is absolutely no substitute. Besides hard work, one also requires a combination of legal knowledge, analytical and communication skills, attention to detail, and a strategic mind. One needs to always maintain a high ethical standard and integrity. Disputes can be emotionally and mentally taxing so one needs to have the patience and resilience to manage pressure including a lot of late nights. Most importantly, one needs to have a mentor, without which it is exceedingly difficult to succeed.

The legal disputes industry is likely to become more dynamic, driven by technological innovation, changing societal expectations, and emerging legal challenges. Given the globalisation of businesses, we will see an increase in the complexity of cross-border disputes. There will be greater demand for lawyers specialising in niche areas such as international arbitration and a growing emphasis on ADR methods to save time, costs, and resources.

When I’m not at work, I’m travelling, cooking, trying out different cuisines and restaurants and sharing a glass or two of wine with family and friends.

My biggest inspirations within the law are my father and my husband and outside the law, my mother. Together but in different ways they are my north, my south, my east and west, my working week and my Sunday rest. I could not ask for a better friend, philosopher and guide and I owe them everything.

Sherina Petit, head of international arbitration and head of India practice, Stewarts

Last year, we spoke with MoloLamken partners Steven Molo, one of America’s leading trial lawyers, and Sara Margolis, a rising courtroom star, to learn how a party in a high-stakes trial might improve its chances of success.

We spoke with Steven and Sara again about a critical step in preparing for high-stakes trials: jury research.

What do you mean by jury research?

Steven: We work with a consultant – usually a psychologist – to identify the key issues in the case and understand juror attitudes toward them, by presenting evidence and arguments to mock jurors.

Sara: Research also helps us develop effective graphics and assess juror reactions to witnesses.

How does jury research work?

Steven: Research usually has two to four phases. It might start with a survey of potential jurors that’s designed to reveal the beliefs that jurors will likely bring to their evaluation of the case. Next, we might move to a focus group that helps us understand how potential jurors would react to the particular facts and arguments. That may be a day-long exercise. Finally, we might move on to summary arguments or mock trials, where we present more developed arguments and evidence to the mock jury. These exercises might occur over two days.

Sara: Jurors complete questionnaires asking about their backgrounds and attitudes toward issues relevant to the case. They do this before, during and at the end of exercises in which they are presented evidence and arguments. Eventually they deliberate and following the deliberations the consultant moderates a discussion among them.

Is it realistic to think you can get valuable information in a one- or two-day exercise for a case that may take three or four weeks to try?

Sara: Yes. We are not trying the entire case to the mock jurors. Usually there will be modules that address specific topics – for example, damages or a particular defence. A day-long focus group may have five or six modules.

Who are the mock jurors?

Steven: Consultants recruit people in the venue who more or less represent the basic demographics found there. For example, race, gender, education, income level. The mock jurors look like the actual jury pool. The consultant pays them a daily fee that varies by venue.

Is the research confidential; can an opponent obtain it through discovery?

Sara: Jurors sign a confidentiality agreement. The work is protected by the work product doctrine and is not discoverable. In the highly unlikely event that a mock juror was called to serve on the actual jury, they would be excused for cause.

When should you conduct research?

Steven: Certainly, when you have a solid picture of what the evidence may be – likely once there’s a summary judgment ruling.

Sara: But earlier research is often quite helpful. Surveys or focus groups done once a complaint survives a motion to dismiss can help focus discovery and develop themes.

You mentioned graphics. How does jury research help develop graphics?

Steven: Graphics are tremendously important. Some studies show 85% of communication is non-verbal, and more than 80% of people identify as ‘visual learners’. People’s brains receive and process information and form beliefs quickly – through displays of information, not just spoken words.

Sara: We present graphics to the mock jurors. We ask them for feedback and use that feedback to hone our messages and themes. It takes time to reach a final product that best communicates a point.

Does jury research differ based on the venue?

Sara: To a degree. The general approach to jury research doesn’t change but, of course, the jury pool will. It can be advantageous to have a consultant with deep knowledge of a venue but methodology is what’s most important.

You also mentioned trial presentation. How does jury research help with that?

Sara: Jury research can also help assess witness credibility. In civil cases depositions are almost always videotaped so it’s easy to select a short representative excerpt. We can also do a short video of mock testimony. We can play these and learn how jurors react to specific witnesses. Their reactions and advice from the consultant can be useful in improving a witness’s communication skills.

Can jury research help inform settlement?

Steven: It helps both a lawyer and a client understand how jurors are likely to react to the case. It might embolden a client to move forward to trial or settle within a given range. It can provide a reality check to a client with an overly optimistic or pessimistic view. Sometimes sharing a favourable research outcome – on a confidential basis – with an opponent can be useful in negotiations.

What are some common mistakes to avoid?

Steven: Ignoring bad evidence. You want to see how jurors respond to your opponent’s best evidence and arguments.

Sara: Focusing too much on the outcomes instead of what you learn along the way. It’s not about ‘winning’ the exercise. It’s about gathering and analysing information that will help you build a persuasive case and avoid mistakes at trial.

Overview of the Egyptian legal system

The Egyptian legal system is a civil law system influenced by the Napoleonic code. The Egyptian legal system constitutes a source of influence to other laws in the MENA region.

When regulating civil and commercial transactions, the Egyptian legislator left some room for the parties to regulate their own affairs in an agreed manner and, thus, the legal principle pacta sunt servanda plays an active role within the application of private laws. Beyond that circle of party autonomy, the Egyptian legislator laid out mandatory legal norms from which subjects cannot deviate through their agreements. Contrary to private law, administrative law is a hybrid of civil and common law elements as administrative court rulings enjoy the power of creating law in case of a lacuna in the applicable law.

The Egyptian legal system is comprised of various legislations of differing hierarchy. The highest source of legal norms is the Egyptian Constitution. Statutes come immediately after the Constitution, among which, one must mention the Civil Code of 1948 (as amended), the Procedural Law no.13 of 1968 (as amended), the Commercial Code no. 17 of 1999 (as amended), and the Companies Law no. 159 of 1981 (as amended).

Judicial authority

Judicial rulings have no binding power in Egypt. Nonetheless, the principles and rulings of the Supreme Administrative Court and the Court of Cassation have persuasive powers and are expected to be upheld by courts both practically and morally.

The Egyptian judiciary is the third autonomous authority of the Egyptian state and is comprised of (1) the Supreme Constitutional Court, which is the only court with the authority to rule on issues pertaining to the validity of laws and rules as well as conflicts of jurisdiction; (2) the State Council, which is comprised of (a) a judicial department (which includes administrative courts), (b) a legislative department (which provides opinion in relation to draft laws), and (c) an advisory department (which provides advice to administrative authorities, entities and bodies in relation to legal issues referred to said department by the body requesting advice; and (3) ordinary courts (including criminal courts, civil and commercial courts, economic courts, personal status and family courts, labour courts).

The Egyptian judicial system is comprised of several tiers: (a) the Court of First Instance; (b) the Court of Appeal; and (c) the Court of Cassation.

Jurisdictional issues and cases involving foreign entities

The Procedural Law has set out the cases where Egyptian courts have jurisdiction. In relation to cases involving a foreign respondent, Egyptian courts ensure first that the foreign respondent was notified of the case writ. Such notification is done through diplomatic channels. The Cassation Court has recently confirmed that the dispatch of the notice, is insufficient and that proof of delivery is a requisite for the validity of the notice.

In terms of the recognition and enforcement of foreign judgments, Egyptian courts ensure that the following requirements are met: (a) the foreign court that rendered the judgment has jurisdiction under its own rules; (b) the parties were duly informed and properly represented before said court; (c) the judgment is final and binding under the rules that apply to the foreign court’s law; and (d) the foreign judgment is not in conflict with an earlier judgment rendered by Egyptian courts or against public policy.

Dispute resolution mechanisms

In Egypt, the legally recognised dispute resolution mechanism are as follows:

Mediation and conciliation: In practice, seeing that neither mediation nor conciliation leads to an enforceable outcome in the absence of the disputing parties’ conclusion of a binding settlement agreement, we do not often see disputes being referred to either mechanism. On the contrary, disputing parties seem to give more weight to direct settlement negotiations that are conducted with the aid of counsel. In Egypt, court-related mediation programmes usually involve matters that are reviewed by familial or economic courts. Outside the court system, there exist mediation centres, including: (1) the Center for Arab Mediation (AMC); (2) the Investors Dispute Resolution Center (associated with the General Authority for Investment and Free Zones); and (3) the Cairo Regional Centre for International Commercial Arbitration (CRCICA).

Litigation: Several initiatives are being undertaken to raise the Egyptian legal system’s efficiency. For instance, The Egyptian legislator has considered the prospect of digitising many of the litigation processes in a proposed bill amending the Procedural Law. Further, the Cairo Economic Courts were established in 2008 with the intention of permitting the resolution of particular kinds of conflicts in front of judges who possess specialised business knowledge and experience. The process for filing a claim commences by filing a case writ with the competent court accompanied with supporting documents. The court bailiff is required to provide the respondent with a copy of the claim and notify the latter. Among the basic principles that govern the litigation process are due process, equal treatment of the disputing parties, and confrontation.

Arbitration: Arbitration is regulated under (1) the Arbitration Act no. 27 of 1994 (which is influenced by the UNCITRAL Model Law on International Commercial Arbitration (1985)); and (2) the New York Convention (to which Egypt is a signatory). Egyptian courts have repeatedly confirmed that preference be given to the arbitration rules agreed on by the parties provided that there is no breach of a mandatory provision of the Arbitration Act or of Egyptian public order and morals. Egyptian courts have shown a steady tendency of respecting the legal effects of arbitration agreement and therefore issuing a ruling of inadmissibility provided that the arbitration agreement is not proven to have been (explicitly or implicitly) waived by the respondent after court proceedings are initiated by the claimant. The requirements for enforcement of awards include the following: (a) the subject-matter of the award must not have been the subject of a previous Egyptian ruling; (b) there must be no violation of Egyptian public policy considerations; and (c) the award must be validly notified.

Legal fees

In litigation cases, legal costs are governed under Law no. 90 of 1944 (as amended). The associated legal fees are usually a percentage of the value of the claim. If, however, the value of the claim is not determined, then the court fees would be a set amount, determined according to the nature of the claim. Moreover, there are legal costs associated with all procedures pertaining to a legal claim, rather than just the review of such claim by the court, meaning a party would bear legal costs for the notification of the parties, and for the enforcement of the judgement. Moreover, the losing party is the party that bears the court fees.

Documentary and evidence rules

Parties are permitted to provide evidence while filing a claim or defence. In this context, a party is not required to present any evidence that will strengthen the case of his opponent. Under Egyptian Law, parties to a litigation should submit original documents as any photocopies are dismissed if challenged by opposing parties.

I didn’t really decide to be a lawyer, the law chose me. I went to a wedding and sat next to a very nice man. He turned out to be a partner in a law firm and we talked career options all night. He gave me his business card and said to call him. I did, and was invited to meet some people. Entirely unbeknownst to me, it was a trainee selection day. I had no idea what I was doing, but I spent a day taking part in various team and individual exercises. At the end of the day the senior partner handed me a brown envelope. I asked what it was and he said, ‘a training contract’. I had to phone a friend to ask what that was. I hadn’t done a day of study in the law, but they paid for me to go to law school. I found my calling and the rest is history. Thank you, Miles.

If not for law, it would have been musical theatre, becoming an Olympic dressage rider or just being Mum. Growing up, I loved being on stage and I think it was my early training ground for being an advocate. I also studied theatre at A-Level.

Dressage was another huge passion of mine, and I pursued the ‘Olympic dream’, but my one horse sadly got the first-ever reported equine case of motor neurone disease and had to be put down. I couldn’t afford to start again – so that was it. But I am a great believer in all things being for a reason. It was a chapter of my life I loved, I learnt a huge amount, including the value of hard work, and I got to move on to the next adventure.

The most embarrassing thing to have happened to me at work was – I was once called by a partner I was working with, on my mobile while on the loo and… I answered. I know – don’t ask. It was a slightly awkward conversation – the partner I was talking to was adamant I was needed right away. There are two women out there who I hope will read this and fall off their chair laughing.

There are too many war stories to mention and most of them are unrepeatable. But they are the ones in which you find the very best of this job – camaraderie, kinship and lots and lots of laughs.

The most memorable case I’ve worked on was definitely the Abyei arbitration. I acted for what is now South Sudan in a boundary dispute which paved the way for South Sudan to secede. It was career defining. In terms of most interesting case, honestly, all my cases are interesting. It is one of the many things that makes this job such a privilege – you can never get bored.

When I first made counsel, I got upwards feedback in which some associates said I was a macro manager and some said I was a micro manager. I learnt to adapt my style to those I am working with and to develop a thick skin. I would like to think I am human, fair, and never ask more of others than I am willing to give myself. I want my teams to be collaborative, respectful, and strive to be the very best at all times. I also believe in it all being fun – otherwise what is the point. My team would describe me as too busy!

This will sound corny, but my biggest inspiration has been my Mum. She was brave, selfless, perfectly flawed and entirely her own person. She gave me the best of me. Inside the law, there are too many people over the years to single out just one. In general, my inspiration has come from the senior people who support the more junior people; the men who have looked out for the women; and the handful of brilliant advocates I have been privileged enough to work with and against.

My biggest achievement is easily being a Mum. Although, truth be told, my kids are awesome despite me, not because of me.

It takes humility, curiosity and a desire to listen and understand people to make a great disputes lawyer. And a healthy sense of humour!

When I’m not at work, I’m with my kids at one of their many national and international sailing events, come rain or shine. Otherwise, I’m just generally outside in the fresh air being active. I was not designed for an office job! Cooking, reading, music and trying to see my long-suffering friends, or walking my dog.

I have so many favourite films but if I absolutely had to choose, The English Patient. The most human and affecting book I have ever read is Far from the Tree by Andrew Solomon.

Kate Davies KC is head of Skadden’s Europe international litigation and arbitration group.

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Among its many endeavours in arduously promoting its many capabilities and qualifications in becoming the next hub for international dispute resolution in North-East Asia, as of 1 January 2024, the Korean Commercial Arbitration Board (KCAB) enacted and enforced its own International Mediation Rules (KCAB Rules or the Rules) with the help of Yulchon’s international dispute resolution team members, namely Mr. Yun Jae Baek, Ms. Hyunah Park and Ms. Seyoung Choe.

The KCAB has been in charge of administering domestic mediation cases in South Korea, including early court-annexed mediations. In fact, ‘early court-annexed mediation’ was introduced by the Korean courts in 2010, allowing the courts to refer a civil dispute to a mediation institution in order to conduct a mediation for a short period of time before the commencement of the main trial. Since 3 May 2010, the KCAB was appointed as one of the mediation institutions in charge of administering domestic early court-annexed mediations. Furthermore, the KCAB established its own domestic mediation rules in 2012, and has been handling mediation cases for domestic users. Given the recent trends in increasing the need to attain friendly and efficient settlements of international disputes via mediation, the KCAB decided to expand its services on a global scale using its expertise, competency, and familiarity in handling mediation cases.

The KCAB prepared its Rules by benchmarking other successful international mediation institutions such as the Singapore International Mediation Centre, as well as by taking into account international trends and practices in handling international mediation cases. Moreover, it has also taken into consideration the United Nations Convention on International Settlement Agreements Resulting from Mediation, also known as the Singapore Convention on Mediation (SCM) for ease of enforcing the settlement agreement reached via KCAB mediation.

In particular, the KCAB Rules comprise 11 articles in total, stipulating the application and procedure of the mediation rules. More precisely, under Article 1(2), the KCAB Rules apply to all mediations when:

1. there is an explicit agreement in writing between the parties to mediate the dispute under the KCAB Rules;
2. one of the parties wishes to refer the dispute under the KCAB Rules when there is no prior agreement between the parties; and
3. the parties have agreed in writing to mediate the dispute at the KCAB without designating any particular mediation rules and at least one of the parties to the dispute at the time of filing the request for mediation has its principal place of business or place of habitual residence in a jurisdiction other than South Korea.

Meanwhile, as a way to encourage parties to consider mediation even after the dispute arises, the KCAB Rules also details the procedure to follow in the commencement of mediation when there is no prior mediation agreement between the parties to mediate under Article 3. Moreover, in order to efficiently conduct the mediation in a cost-effective and expeditious manner while also reflecting the various technological advancements in communications technology, under Article 7(4), the mediator has the option to proceed with the mediation virtually.

It is also important to highlight that settlement agreements obtained through mediation under the KCAB Rules are enforceable. Therefore, in the case the parties reach a settlement agreement during mediation, they can either request the mediator to sign the mediation agreement or to issue an attestation confirming that a settlement was reached pursuant to Article 9(3) of the KCAB Rules. As a result, this attestation ensures the enforcement of the settlement agreement under the SCM.

Furthermore, as a measure to safeguard the impartiality and integrity of the mediation proceedings, the KCAB Rules provide that unless the parties agree otherwise, the mediator cannot act as an arbitrator, representative, counsel, expert, judge, witness or in any other capacity with respect to a dispute that is related to the present or past mediation proceedings. Also, the mediator shall not be involved in any mediation proceedings for which the dispute arises out of or in connection with the same contract or legal relationship nor a related contract or legal relationship in accordance with Article 11(1) of the KCAB Rules.

With respect to the mediation fees and expenses, at the time of filing the request for mediation, the KCAB requires a filing fee of KRW 1,000,000 that must be remitted by the applicant party under Article 1 of Appendix A of the KCAB Rules. In addition, depending on the amount in dispute, Article 2 of Appendix A of the KCAB Rules provides a simple table breaking down the various ranges of administrative expenses, from a minimum of KRW 500,000 to a maximum of KRW 25,000,000. However, if the amount in dispute is undetermined from the commencement of the mediation, then in principle, the administrative expense shall be KRW 3,000,000. As for the mediator’s fees and expenses, pursuant to Article 3 of Appendix A of the KCAB Rules, the mediator’s fees are based on an hourly rate agreed by the parties and the mediator. With respect to the mediator’s expenses, the KCAB will determine and fix what are deemed reasonable expenses incurred by the mediator.

In conclusion, it is important to emphasise that the purpose of the KCAB Rules is to efficiently settle disputes by providing a transparent and reliable framework for mediation that allows parties to focus on addressing and reconciling their respective underlying interests and concerns, with the end goal of facilitating and aiding the parties in mutually devising a practical solution. As such, the KCAB took this great initiative to promote international mediation.

With both arbitration and mediation at its disposal, the KCAB is better equipped with diverse tools to assist businesses resolve commercial disputes in an efficient and effective manner, making it a more attractive dispute resolution forum for both domestic and foreign businesses.

Yulchon LLC is a full-service international law firm headquartered in Seoul, South Korea. It employs more than 600 professionals, including more than 60 licensed in jurisdictions outside of Korea, and has offices in Shanghai, Hanoi, Ho Chi Minh City, Moscow, Jakarta, and Yangon. As one of Korea’s premier law firms, Yulchon maintains its high standards of excellence by valuing a culture of collaborative problem-solving.