Cross-border disclosure and evidence

When dealing with cross-border disputes, various issues arise involving disclosure and evidence may arise. For insights into other considerations, see: Cross border considerations—checklist.

Cross-border disclosure

When dealing with disclosure in cross-border disputes, a wide range of considerations arise. These include managing a foreign client’s expectation, the impact, if any, of local laws in the jurisdiction in which the documents are located, data protection considerations, the control of documents outside England and Wales, disclosure requirements in relation to foreign language documents, including whether there is an obligation to provide translations, and whether privilege attaches to the documents and their translations. For insight, see Practice Note: Cross-border evidence and disclosure—a guide for dispute resolution practitioners

Informal/formal regimes for taking evidence

When dealing with civil and commercial disputes, there may be times when it is necessary to obtain evidence located in another country. Such evidence may be in many forms, eg witness deposition (party or non party), documents (provision of or inspection), inspection of property (real or personal) or obtaining biospecimens (eg blood samples).

In many cases, such evidence will be provided on an informal basis following

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Latest Dispute Resolution News

Dispute Resolution weekly highlights—27 March 2025

This week's edition of Dispute Resolution weekly highlights includes analysis of a number of key DR developments and key judicial decisions including the 182nd Practice Direction update and the Court of Appeal decision in Expert Tooling and Automation Ltd v Engie Power Ltd (commissions and informed consent); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.

Jurisdictional challenge dismissed due to real risk that the claimants would not be able to fund legal representation abroad (Da Silva v Brazil Iron)

Dispute Resolution analysis: This case concerned an application by the defendants for an order declaring that the High Court should not exercise its jurisdiction to try the claims against them, on the ground that Brazil, as opposed to England and Wales, was the proper forum for the claims to be tried. While there were factors which pointed to Brazil as being the country with a real and substantial connection to the dispute, the court found that the Courts of England and Wales were the appropriate forum, due to the real risk that the claims could not be sufficiently funded were they to proceed in Brazil. This was another case of that exceptional kind, where there was not merely a difference in the availability of funding in the two jurisdictions, but a real risk that substantial justice would not be obtained in the foreign jurisdiction. Written by Georgia Whiting, legal counsel at Ardmore Construction.

Arizona District Court’s ruling on CISG, merger and termination-for-convenience clauses (Kumpers v TPI)

Arbitration analysis: The US District Court for the District of Arizona ruled that the United Nations Convention on Contracts for the International Sale of Goods (CISG) applied under a governing law clause stating that Arizona law would govern ‘without giving effect to any choice-of-law principles’. Citing established US case law, the court held that the CISG applies as part of federal law under the Supremacy Clause of the US Constitution, thereby negating any conflict-of-law considerations. Upon determining the CISG's applicability, the court analysed its relevance to the termination-for-convenience and merger clauses. It found that there was a gap in the CISG, as CISG did not regulate termination-for-convenience, and therefore applied Arizona state law to address the issue. Additionally, the court held that the merger clause derogated from CISG Article 8(3) by excluding consideration of prior agreements, negotiations, and discussions. Finally, the court ruled that the doctrines of estoppel, waiver, and unclean hands were not governed by the CISG. Written by Dr Gizem Alper, international legal & ADR consultant and Institute of International Commercial Law at Pace Law School.

SRA clarifies regulatory approach to SLAPP cases amid ongoing investigations

The Solicitors Regulation Authority (SRA) has issued a statement outlining its regulatory approach to Strategic Litigation Against Public Participation (SLAPP) cases. The SRA emphasised its distinct role from courts in addressing SLAPP litigation, focusing on solicitors' ethical conduct rather than case classification. The statement revealed ongoing investigations into litigation abuse, including one pending tribunal case and four cases awaiting final decisions. The SRA also disclosed its reasoning for taking no action in the Discreet Law complaint regarding Prigozhin defamation proceedings, while noting a previous successful prosecution resulting in a £50,000 fine for improper attempts to prevent publication.

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