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Country Guides - Litigation in Asia

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Country Guides - Litigation in AsiaCountry Guides - Litigation in Asia Country Guides - Litigation in Asia


Country Guides - Litigation in AsiaCountry Guides - Litigation in Asia

Table of Contents

Page

Introduction ....................................................................................................................................................................... 3

Australia ............................ Corrs Chambers Westgarth .....................................................................................4

Bangladesh ........................ Amir & Amir Law Associates ................................................................................. 7

China .................................. Mayer Brown JSM ...................................................................................................11

Hong Kong ........................ Mayer Brown JSM ...................................................................................................15

India ................................... Amarchand & Mangaldas ..................................................................................... 18

Indonesia ........................... Soewito Suhardiman Eddymurthy Kardono (SSEK) ........................................23

Japan .................................. Anderson Mori & Tomotsune ................................................................................ 27

Korea .................................. Kim & Chang ........................................................................................................... 31

Malaysia ............................ Skrine .......................................................................................................................34

Pakistan ............................. Meer & Hasan .........................................................................................................38

Philippines ........................ SyCip Salazar Hernandez & Gatmaitan .............................................................. 41

Singapore .......................... Mayer Brown JSM ..................................................................................................45

Taiwan ............................... Lee, Tsai & Partners ...............................................................................................49

Thailand ............................ Mayer Brown JSM ..................................................................................................53

Vietnam ............................. Mayer Brown JSM .................................................................................................. 57

Contact details ................................................................................................................................................................. 61

2 Country Guides - Litigation in Asia






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Introduction

Disputes with trading partners, customers, contractual counterparties and regulators are unfortunately a fact of business life. With the increasing internationalisation of business and the spread and growth of organisations (and investments) across Asia there is a growing need to understand the dispute resolution landscape across the varied jurisdictions in which businesses now operate. This is especially important given the multi jurisdictional nature of many disputes these days.

Mayer Brown is a global law firm with a strong foot print across Asia with significant office’s in China, Hong Kong, Singapore, Thailand and Vietnam. In other regional centres Mayer Brown has long experience in assisting clients manage disputes and has built up relationships with a number of well established local firms.

This publication is intended as a first reference point for in house counsel and other executives with responsibility for dispute resolution issues. We hope you will find this publication useful in answering a number of frequently asked questions regarding how long the process takes, special rules for foreign litigants and how to enforce awards. Hopefully this will assist you when considering whether and where to bring proceedings, the costs associated with the process and other issues fundamental to making an informed decision about how to deal with disputes in many Asian jurisdictions.

John HickinPartnerMayer Brown JSM

Thomas SoPartnerMayer Brown JSM


AustraliaCountry Guides - Litigation in Asia





AustraliaAustralia

OverviewAustralia inherited its legal system from the English common law and that inheritance is still quite clear today. However, since the Federation of the Australian States merged into one Commonwealth in 1901, the Commonwealth and state governments have enacted legislation independently from the British Parliament and the common law of Australia has developed separately from that of England.

Each state has its own court hierarchy with the Supreme Court of each state being its highest court, with an unlimited financial jurisdiction. The Federal Court of Australia hears matters of federal law. The High Court of Australia hears appeals from the state Supreme Courts and the Federal Court and is responsible for interpreting the Constitution. Rules of evidence and procedure are set partly by legislation and partly by the courts themselves.

Litigation FundingRestrictions on litigation funding have been partly lifted in recent years with the abolition of the torts of maintenance and champerty in most Australian jurisdictions. Although courts have considered the issue of litigation funding, the practice remains largely unregulated. Litigation funding can allow for better access to justice and spreads the risk of complex litigation. Litigation funders receive a percentage of the proceeds of the litigation, if it is successful. There are currently six or seven litigation funders in Australia that make up about 95% of the market.

Class ActionsClass (or representative) actions are becoming increasingly common in Australia, in both the state and federal jurisdictions. The procedural requirements particular to class actions are not

overly stringent. There is no requirement to satisfy the court that the proceedings meet the requirements for a class action before it proceeds. There only needs to be one genuine common issue across the class. Courts can consider individual issues separately and common issues together.

Foreign LitigantsIt is possible for foreign litigants to bring court proceedings in Australia. However, an Australian court would stay those proceedings if it was shown that the court is a clearly inappropriate forum in which to hear the proceeding.

Filing Fees & DepositsFiling fees to commence proceedings in the Supreme and Federal Courts vary depending on whether the plaintiff is an individual or a corporation. In the New South Wales Supreme Court, and in the Federal Court, an originating process costs AUD 894 (approximately USD 950) for an individual and costs AUD 2,142 (approximately USD 2,300) for a corporation.

A party may make an application to the court for the other side to give security for costs, if there are doubts about the other side’s ability to pay a costs order against them.

Default & Summary Judgment OptionsWhere a defendant is in default, having not filed a defence to an originating process, the plaintiff may apply to the court for default judgment to be entered. The plaintiff would need to prove that it had effectively served the defendant. A default judgment will be set aside, on application by the defendant, where the defendant can show that there is an arguable defence and that there is a good reason for not having filed the defence in the prescribed time.

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Courts may give summary judgment, on application by a plaintiff, in simple cases or where there is no arguable defence.

Length of the ProcessThe length of the litigation process varies considerably between courts and depends also on the complexity of the dispute. A straightforward dispute in an inferior court may be heard and decided within two months of filing a claim. A complex claim in the superior courts could last for several years.

DiscoveryIn some state jurisdictions, the right to general discovery has been abolished. Such an order is still available in the Federal Court. In those state courts that have abolished general discovery, the court makes orders for discovery of certain classes or categories of documents. Preliminary discovery, for the purpose of identifying a prospective defendant, is now available in both the state courts and the Federal Court.

Common Forms of ReliefTypical forms of relief sought include:

• Liquidated damages;

• Orders for specific performance;

• Injunctions;

• Constitutional writs or orders in the nature of writs.

Punitive, or exemplary, damages and aggravated damages are less common types of damages awarded. Interest is typically awarded on judgment sums.

Enforcement options include:

• Bankruptcy or winding up orders;

• Garnishee orders;

• Examination of the judgment debtor;

• Writs for:

» Levy of property;

» Possession of land;

» Delivery of goods.

Enforcement of Foreign AwardsForeign judgments are enforced in Australia either under federal legislation, for certain countries and courts, or, otherwise, under the common law. Under legislation, for a judgment to be enforceable, the judgment must have been made in a court listed in the legislation, the application must be made within six years of judgment and it must be possible to enforce the judgment in the original court. If a judgment is not within the scope of the legislation, it may be enforceable under the common law. In that case, the foreign court must have exercised jurisdiction recognised by Australian courts, the judgment must be final, the parties must be identical to those in the judgment and the debt must be fixed or easily calculable.

Alternative Dispute ResolutionAlternative dispute resolution has become a major part of the litigation process in Australia. Arbitration of contractual disputes is very common, particularly in certain sectors, such as construction. Courts are increasingly willing to order that parties attempt mediation prior to the hearing of their proceeding. In New South Wales, recent changes to the Civil Procedure Act mandate that claimants take reasonable steps to settle their dispute prior to commencing a proceeding. Similar legislation will soon commence in Victoria and is being contemplated at the federal level.

CostsCosts generally follow the event in most litigation in Australia. That is, the winning party on either the entire proceeding, or some part of it, will be able to







recover their costs from the losing party. The costs awarded are usually around 65-70% of the winner’s actual legal costs. It is possible for courts to award costs on an indemnity basis, where the loser pays 100% of the winner’s costs, in certain circumstances, such as where the loser refused a reasonable settlement offer and got a worse outcome in court.

Some inferior courts, and tribunals, have a limited jurisdiction to award costs.

prepared by

James WhittakerPartner & Division LeaderCorrs Chambers Westgarth

T: +61 3 9672 3158

F: +61 3 9672 3010

E: [email protected]

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Bangladesh

OverviewThe legal system of Bangladesh is based on a common law system. However, unlike other common law jurisdictions, Bangladesh’s Supreme Court has the power not only to interpret laws made by the Parliament but also to exercise the power to declare any law being ultra vires to the Constitution as null and void along with its power of judicial review. The Supreme Court can also enforce fundamental rights of any citizen or any person for the time-being in Bangladesh. Although founded on the English common law system, most of the principles are incorporated in the statutory laws, as enacted by Parliament and interpreted by the superior courts.

Civil procedure in Bangladesh is governed by the Code of Civil Procedure (CPC), 1908.

The Constitution of Bangladesh created the Supreme Court of Bangladesh with two divisions, the High Court Division and the Appellate Division. The Appellate Division is the final Court of Appeal. It hears appeals from the judgments, decrees, orders or sentences of the High Court Division. The High Court division has been vested with the power to hear appeals and revisions from subordinate courts and also to enforce fundamental rights and to grant other relief available under the writ jurisdiction.

Litigation FundingLawyers are not allowed to charge contingency or conditional fees in litigation. However, for any other work outside a court setting or litigation, i.e., recovery of debt out-of-court procedure, ADR, cross-border transactional work, setting-up project etc., lawyers may charge conditional fees.

Class ActionsUnder the general rule, Plaintiffs’ having separate and distinct causes of action may join in one suit if the right to relief arises out of the same set of acts or circumstances and involves a common question of law or fact. Courts also allow joinder of defendants if relief sought against several defendants arise out of the same acts or transactions and a common question of law or fact would arise if separate suits are brought against the different defendants.

Where there are numerous persons having the same interest in one suit, one or more of such persons, may with the permission of the court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit, of all persons so interested. To attract the provisions of this rule four conditions are to be fulfilled which are as follows:

(1) There should be numerous persons.

(2) Who have the same interest.

(3) The court has given permission to sue or defend in representative capacity and

(4) The court has given notice to the persons interested.

Moreover, public interest litigation can be filed where the “public interest” at large is affected and can be filed by any person on behalf of a group of persons whose rights are affected.







Foreign LitigantsForeign Litigants may file a suit to resolve their disputes so long as they can show the requisite connection with the jurisdiction, i.e., if the defendant resides or carries on his business in Bangladesh or that the cause of action arose within the jurisdiction of the courts of Bangladesh. However, suit against a non-resident foreigner for specific performance of contract to sell property in Bangladesh is maintainable in Bangladesh, no matter where the contract was entered.

Filing Fees & DepositsThe court fee for filing a suit is to be paid by the plaintiff at the time of filing and the amount is dependent upon the valuation of the suit. The costs are borne by the party filing the suit. Recently some adjustment has been made regarding court fees for low-income people. According to the Court Fees (Amendment) Act 2010, a claimant will pay a highest BDT 50,000 (approximately USD 700) as court fee for a money suit, (as compared with 15% of the claim previously). Moreover, whereas a claimant previously had to pay 10% for a land dispute-related case, it has now been reduced to 2% not exceeding BDT 40,000 (approximately USD 550). However, a claimant residing outside Bangladesh who does not have sufficient immovable properties in Bangladesh may be required to furnish security for costs. Security for costs may be ordered only in exceptional circumstances.

Default & Summary Judgment OptionsThere are a number of circumstances in which civil courts may pronounce judgment without trial which are as follows:

1) If a court is satisfied that a defendant has admitted the claim made against him.

2) If a defendant fails to present a statement of defence within the prescribed time.

3) The court may also pronounce judgment without proceeding to trial if the parties are not at issue at all, i.e., there is no dispute between them.

4) If after service of a summons, a defendant does not appear before the court, the court may proceed to issue an ex parte judgment.

Length of the ProcessGenerally, the time limit for bringing a civil suit varies from 6 months to 12 years, depending on the nature and subject matter of the suit. However, in the case of suits brought by or on behalf of the government, the limitation period is 60 years. However, the Law is silent in respect of time limit of concluding a civil suit.

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DiscoveryA party is generally entitled to know beforehand the material facts constituting the case. Pre-trial disclosure/discovery of documents are quite common and in some cases required by law. The court may issue a summons to persons whose attendance is required either to give evidence or produce documents. A party may issue interrogatories to another party with the leave of the court. A party may apply to the court for an order directing the other party to make discovery of documents in his possession. Unless the court is of the opinion that discovery of documents is either not necessary for disposing the suit fairly or for saving costs, the court may, on application of any party, order the other party to make discovery of documents in his possession.

Common Forms of ReliefThe common forms of relief in civil cases are set out under the Specific Relief Act 1877. The following types of relief are often made in proceedings in Bangladesh:

a) By taking possession of certain property and delivering it to a claimant;

b) By ordering a party to do the very act which he is under an obligation to do (specific performance of contract);

c) By preventing a party from doing that which he is under an obligation not to do; (injunctions)

d) By determining and declaring the rights of parties otherwise than by an award of compensation; or

e) By appointing a receiver.

Enforcement of Foreign AwardA judgment of a foreign country cannot be enforced in Bangladesh in the absence of any reciprocal agreement. Bangladesh enjoys such reciprocity with most common law countries. The decree of any superior court of a reciprocating country can be executed under the supervision of the District Judge. However, the District Court may refuse to execute a foreign judgment if it:

a) Has not been passed by any court of competent jurisdiction;

b) Has not been passed on the merits of the case;

c) Is founded on an incorrect view of international law;

d) Has been obtained by fraud; and

e) Upholds a claim in violation of any law in force in Bangladesh.

Experience shows that foreign judgments in default and summary judgments are very difficult to enforce.

Alternative Dispute ResolutionMediation is governed by the Code of Civil Procedure 1908 which provides for mediation in order to settle disputes in civil suits at an early stage of proceedings. However, mediation cannot be used in proceedings brought under Artha Rin Adalat Ain 2003 (Money Loans Court Act 2003), which deals with suits regarding recovery of debts by financial institutions.







An arbitration agreement may come in the form of an arbitration clause in a contract. An arbitration agreement must be in writing. The Arbitration Act 2001 is applicable to all disputes where the parties have agreed to refer the matter to arbitration. Bangladesh does not have a national arbitration institution. However, the Federation of Bangladesh Chambers of Commerce and Industry introduced the Bangladesh Council of Arbitration (BCA) as an arbitral body in 2004. The BCA is a new body and its aim is to provide a simple, harmonious, cost-effective and speedy process of dispute resolution.

The arbitrators may award an arbitral award which must be in writing and signed by the arbitrators. If no application has been made to set aside the award within 60 days from the date the award was made, the domestic award may be enforced in the same manner as a judgment of the court.

CostsThe court has discretion to award costs in favour of the wining party. However in practice this is extremely rare. The court may also award other costs namely, the cost of interrogatories. Compensatory costs may be awarded in respect of a false or vexatious claim or defence. The court may also give interest on costs at any rate not exceeding six percent per annum and such interest shall be added to the costs and shall be recoverable as such.

prepared by

M. Amirul IslamBarrister-at-lawHead of ChambersAmir & Amir Law Associates

T: +8802 933 0877, 933 3253

F: +8802 933 7746, 831 7178

E: [email protected], [email protected]

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China

OverviewModernisation of the legal system of Mainland China (“China”) is catching up to the pace of its successful economic development. Although it is essentially a civil law system, China is now making concerted efforts to cope with the huge volume of disputes arising out of the staggering growth of complex commercial activities and awareness of civil rights as part of the exercise of developing a “Harmonious Society” with a view to promoting better societal balance.

In a nutshell, the Chinese court system comprises the Supreme People’s Court, the Higher People’s Courts, the Intermediate People’s Courts and the District People’s Courts with jurisdictions primarily dependent on the size of the claims. Generally speaking, claims exceeding RMB 2 million are dealt with at first instance by an Intermediate People’s Court and large claims are dealt with at first instance by a Higher People’s Court, the jurisdiction of which varies from province to province and municipality to municipality.

There has been a tendency for the court process to move towards adversarial but the People’s Court has still retained a wide discretion to take a pro-active role in collecting its own evidence for the purpose of fact finding. A judgment rendered by a first instance court can, as of right, be appealed to an appellate court essentially by way of a re-hearing. Under exceptional circumstances, e.g., when there arises a serious misapplication of law, a serious procedural irregularity or when new evidence comes to light, etc., the ruling of the appellate court can further be reviewed.

With the development of a consistent and sophisticated system of law resulting from successive

law reforms coupled with the increasing reliability of the judiciary, the outcome of court proceedings is more predictable.

Litigation FundingLegal fees are usually charged with reference to the time spent or on the basis of a fixed fee. Conditional fee arrangements (or contingency fees) are permissible but strictly regulated in China. A lawyer who charges contingency fees must record in his engagement letter with his client details of the scope of service, the impact of the outcome of the proceedings may have on the calculation of legal fees, the mode of payment, etc., and the total amount of legal fees payable must not exceed 30% of the size of the claim. Contingency fees, however, are not permitted to be charged in the following types of cases:-

• Matrimonial and inheritance;

• Claims for social insurance or minimum living allowance;

• Claims for various type of maintenance fees and employment compensation;

• Criminal cases;

• Administrative cases;

• Claims for state compensation; and

• Collective actions.

Collective ActionsCollective actions can be brought in China but any party participating in such an action must positively elect to be bound by the outcome of such proceedings. It is necessary for all participants to demonstrate the “same interest” and to seek the leave of the court for inclusion in such proceedings.







Foreign LitigantsSubject to the principle of reciprocity, any foreign litigant may access to the Chinese court systems to resolve their disputes. In practice, however, a foreign litigant can only adduce documentary evidence formed outside China by producing notarised and legalised copies of the same which can be a serious procedural disadvantage when the subject matter of the dispute lies outside China.

Filing Fees & DepositsFiling fees are payable upon the commencement of proceedings for a civil or commercial claim, the amount of which depends on the size of the claim and is charged in a descending scale. For a claim of RMB 20 million, the filing fee is RMB 141,800 plus a further 0.5% on any amount exceeding RMB 20 million. Deposits may be required by the court in respect of an interlocutory application for preservation of assets or evidence.

Default & Summary Judgment OptionsIn default of appearance at the hearing of the trial of an action, the court may enter a judgment in default but the plaintiff is still required to prove his or her case. Summary procedure is only available in a District People’s Court (with varying jurisdictions but in the developed parts of China, the District People’s Court maintains a jurisdiction for hearing disputes without a foreign element of less than RMB 2 million) to a case of simple facts with the rights and obligations of the parties clearly defined and not substantially in dispute. Cases dealt with summarily are heard by a single judge and must be completed within a period of three months.

Length of the ProcessFor cases which do not have a foreign element and are dealt with by way of a full length procedure, the

court should render a judgment within six months from the date of commencement of proceedings. Special circumstances may justify an extension of this period by another six months upon the approval of the chief judge of the court concerned. Any further extension requires the approval from the court of a higher level. However, cases involving a foreign element do not carry any time limit for completing the case. A “foreign element” means:

1) One of the parties is of foreign nationality;

2) The subject matter of the dispute is located outside China; or

3) The legal fact that establishes, changes or terminates the legal relationship takes place outside China;

Having said that, it usually takes 18 months or so to complete a case involving a foreign element.

For appeal cases, the appellate court should render a judgment within three months from its acceptance of an appeal. Again, special circumstances may justify an extension of this period upon the approval of the chief judge of the court concerned. Cases involving a foreign element also do not carry any time limit for completing the appeal. It usually takes less than 12 months to complete an appeal involving a foreign element.

DiscoveryDiscovery is somewhat relaxed when compared with the common law jurisdiction. Generally speaking, a party carries the burden of proving his or her allegations and should disclose the relevant evidence in support of his or her allegations. The court may also, at its own discretion, conduct investigations and collect evidence from sources other than the parties’.

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Common Forms of ReliefThe major forms of relief available under PRC law are as follows:

• Interlocutory relief for preservation of evidence and assets;

• Cease and desist orders;


• Orders for return of property;

• Orders for reinstatement;

• Liquidated damages awards.

Specific enforcement options are also available but certain enforcement actions under the common law jurisdiction such as the appointment of receivers or declarations of bankruptcy against individuals do not exist in China. An award of damages is usually compensatory in nature. Punitive damages can only be awarded under exceptional circumstances.

Interest is also commonly awarded on judgment sums and upon default being made beyond the time prescribed by the judgment for payment, judgment sums usually carry interest at twice the benchmark lending rate prescribed by the People’s Bank of China for a loan of the same duration.

Enforcement of Foreign AwardsChina is a signatory to a number of treaties with various countries pursuant to which, an award obtained in these countries can, subject to certain conditions laid down in the treaties, be enforced in China. For other countries without an international treaty or reciprocal relations with China, fresh proceedings will have to be initiated at a competent court. There is also in place the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters between the People’s Republic of China and Hong

Kong pursuant to which, recognition and enforcement of awards in civil and commercial matters can take place subject to the fulfilment of various conditions set out in such Arrangement. China is a signatory to the New York Convention and recognition and leave for enforcement of an arbitral award can be rendered by the courts pursuant to the New York Convention.

Alternative Dispute ResolutionDisputes may also be resolved through other alternative dispute resolution processes such as arbitration or mediation. The principal legislation for arbitration is the Arbitration Law and over the years, China has developed a sophisticated system for dealing with arbitration proceedings. The most popular arbitration institution in China is the China International Economic and Trade Arbitration Commission (CIETAC). There are also other local arbitral institutions such as the Beijing Arbitration Commission, the Shanghai Arbitration Commission and also some more specialised arbitral institutions including the China Maritime Arbitration Commission (CMAC), which was founded by the China Chamber of International Commerce to handle maritime disputes. Mediation is not mandatory under PRC law but in practice, the court would encourage the parties to consider mediation before pursuing their claims. Recently, mediation is also taking on growing importance as the People’s Conciliation Law came into operation on 1 January 2011. This new law provides that the parties who reach a conciliation agreement through conciliation conducted by the People’s Conciliation Committee may, within 30 days of the date of the conciliation agreement, jointly apply to the court for judicial verification. Once verified, either party may apply to the court for enforcement upon default by the other party.







CostsThe Chinese courts do not practice a “loser pays all” rule. However, the losing party is usually ordered to bear the court fees or the arbitration fees, as the case may be. As to other costs incurred such as attorneys’ fees, the parties are usually required to bear their own respective costs although there is a growing tendency for a winning party to commence separate proceedings for recovery of costs incurred in the primary action between the parties by relying on a contractual provision contained in the contract in dispute, which provides for the losing party to indemnify the attorney’s fees of the winning party.

prepared by

Terence Tung Senior PartnerMayer Brown JSM

T: +8610 6599 9222

F: +852 2103 5044


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OverviewHong Kong’s legal system evolved over more than a century of British colonial rule and will be very familiar to those who practice English law. It is a common law system with a court system modelled on that found in England, with a High Court and District Court system handling cases depending primarily on the financial value of claims made. The system is administered by an independent judiciary and strong appeal courts, including the Court of Final Appeal which is comprised of non permanent members from other common law jurisdictions as well as senior local judges. In some cases matters may also be referred to the Standing Committee of the National Peoples’s Congress in Beijing for clarification especially where “novel” constitutional questions arise under the “One Country, Two Systems” model.

The court process is adversarial and the rules of procedure well entrenched, although certain reforms have been introduced in recent years in an effort to increase access to justice and to bring efficiency to the process.

Following the transition from British rule after 1997 and notwithstanding a few isolated cases of referring matters to Beijing for interpretation, Hong Kong has managed to preserve its reputation as a reliable and trusted centre for resolution of disputes in Asia.

Litigation FundingConditional fee arrangements (or contingency fees) are not permitted in Hong Kong. Hong Kong has also maintained certain offences in relation to maintenance and champerty, meaning that it is illegal in some cases for a non party to fund another party’s claims in exchange for a share of any damages later awarded. This has often led to criticism of the system on the basis that access to justice is denied to parties without significant financial means. There is, however, a government administered, means tested legal aid scheme which is available to some litigants.

Hong Kong

Class ActionsClass actions of the type found in jurisdictions like the United States of America are not permitted in Hong Kong. Although there is some provision for bringing multi party proceedings in Hong Kong, in the form of representative actions, certain requirements regarding the need of multiple parties to show the ‘same interest’ have meant that in practice these types of cases have been difficult to pursue.

Foreign LitigantsForeign litigants may access the Hong Kong court system to resolve their disputes so long as they can show the requisite connection with the jurisdiction and well established principles of forum non conveniens will prevail in the event of any dispute. Non residents may, however, be subjected to certain tactical applications in the event they do pursue claims through the Hong Kong courts, including applications requiring them to post financial security in respect of the other party’s costs.

Filing Fees & DepositsThe filing fees to start proceedings in the High Court are fixed and modest (equivalent to USD 130). It should be noted, however, additional deposits on account of security for costs (see above) or in respect of fortification of undertakings in damages (see below) may be required.

Default & Summary Judgment OptionsIn default of filing any acknowledgement of proceedings or in default of filing a defence when due, the Court may on application by the other side enter a default judgment against the defendant. This is subject to proving various matters regarding effectiveness of service etc. In clear and obvious cases the Court also has the power to make summary judgment orders (again on application by the other side) when there is no arguable defence or when a defence proffered is considered to be a sham. The







latter option may bring proceedings to a conclusion within a matter of a few months after an action is commenced.

Pleadings may also be struck out by the Court if no reasonable cause of action or defence is disclosed, or in the case of vexatious or embarrassing pleadings.

Equally, claims without substance may be struck out in whole or in part, or the claimant ordered to provide full and proper particulars before he is allowed to proceed.

Length of the ProcessWith the co-operation of the parties High Court litigation can move reasonably quickly and straightforward cases can move from issue of writ to judgment within 12 – 18 months (or even more quickly in the case of summary judgment cases). However, complex commercial disputes can take much longer (up to 10 years in extreme cases) especially where one of the parties makes tactical applications to slow the process down. Recently procedural reforms have been introduced to try and make the process more speedy and efficient by, for example, the fixing of milestone dates for taking certain steps which must be observed, but whether this will achieve the desired efficiency remains to be seen.

DiscoveryCases in Hong Kong are subject to the provision of general discovery of documents relevant to the pleaded cases. Recent procedural reforms have expanded the circumstances in which pre action discovery can be ordered. Also the Hong Kong rules of procedure are sufficiently widely drawn for e-discovery directions to be made by a judge, although to date this has not been widely used. Non party discovery may also be awarded including by way of Bankers Books orders and Norwich Pharmacal orders.

Common Forms of ReliefThe following types of awards are often made in Hong Kong proceedings:

• Freezing injunctions

• Orders for specific performance

• Liquidated damages awards

A host of enforcement options are also available from charging orders and garnishee proceedings, to the appointment of receivers and winding up/bankruptcy orders.

However, certain types of orders are less common or unavailable such as punitive damages awards.

Interest is also commonly awarded on judgment sums, typically at fixed published rates (currently 8%).

Enforcement of Foreign AwardsDepending on the jurisdiction where the original award was secured, it may be possible to enforce by a process of registration under the Foreign Judgments (Reciprocal Enforcement) Ordinance, or else for awards made by jurisdictions which are not signatories (e.g., the United Kingdom) by issuing fresh proceedings with a view to seeking summary judgment. Hong Kong also has legislation providing for reciprocal enforcement of some awards from Chinese Courts, the Mainland Judgments (Reciprocal Enforcement) Ordinance, although this is subject to various restrictions (for example it is limited to money awards) which have limited the usefulness of this option in practice. For arbitral awards, Hong Kong is a signatory to the New York Convention and the Courts are generally supportive of applications for leave to enforce an award.

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Alternative Dispute ResolutionArbitration of disputes is common in Hong Kong, governed by a recently amended Arbitration Ordinance which has unified the previously separate international and domestic arbitration regimes, and arbitration is supported by the Hong Kong International Arbitration Centre. Mediation is also taking on growing importance since the recent introduction of procedural reforms which mandate parties to consider mediation before pursuing High Court Claims, with costs sanctions imposed on parties unreasonably refusing to pursue mediation.

CostsIn High Court proceedings costs typically ‘follow the event’ – meaning that the successful party will be able to recover his costs from the unsuccessful party. These costs are often ordered to be ‘taxed’ (i.e., determined by the court) usually resulting in a recovery of no more than 75% of the actual costs incurred, although gross sum assessments of costs are also now much more common. Following recent procedural reforms the Courts now also have the ability to impose indemnity costs orders on litigants to penalise parties who fail to beat, at trial, a “sanctioned offer” made by its adversary in the proceedings.

prepared by

John Hickin PartnerMayer Brown JSM

T: +852 2843 2576

F: +852 2103 5169


prepared by

Thomas So PartnerMayer Brown JSM

T: +852 2843 4502

F: +852 2103 5057













India

OverviewIndia is a common law jurisdiction and follows an adversarial system that has evolved from British colonial rule. It has a single integrated system of courts to administer both Union and State laws, consisting of the Supreme Court of India as the apex body, followed by High Courts at the state level and District Courts and Sessions Courts at the district level. Jurisdiction of courts is demarcated by territorial and pecuniary limits.

Civil courts have jurisdiction to try all matters of a civil nature, except such matters that by specific statute, are within the jurisdiction of specifically constituted tribunals and commissions. Specialised tribunals have been constituted to deal with issues pertaining to telecommunications and broadcasting, competition, labour, electricity, tax, industrial revival and recovery actions by banks and financial institutions. The High Court of a state has supervisory jurisdiction over all lower courts and tribunals in that state. The Supreme Court of India is the final court of appeal and has overall supervisory jurisdiction over the state High Courts and all lower courts and tribunals in India.

Litigation FundingAs in most common law jurisdictions, an advocate in India is prohibited from stipulating a contingency or conditional fee on the result of litigation or from sharing the proceeds thereof. Also, the Bar Council of India Rules prohibit an advocate from funding the cost of litigation or lending money to its clients for initiating any legal proceedings. There is a bar on the transfer of the right to sue and therefore, a third party is not allowed to fund the cost of litigation on behalf of a claimant.

Class ActionsWhile the Code of Civil Procedure, 1908 (of India) (the “Code”) provides for class action suits, it is used infrequently as compared to the United States. There are only a few judicial precedents in India in this regard, and the few that exist, overlap with Public Interest Litigations (“PIL”). A PIL is a legal action initiated in a court of law for the enforcement of public interest or general interest in which the rights of the general public or a section of the community are affected. However, a PIL can only be filed against the state or public authorities and not against private entities.

Foreign LitigantsForeign litigants may approach competent courts in India to avail of appropriate relief under the Indian judicial system. The competent court is thus obligated to try the suit as if it were brought by an Indian citizen. The only exception is in the case of an ‘alien enemy’ (a foreigner in India who is the citizen of a state, against which the Central Government has declared war or declared as an enemy country), where such a person would require an express permission of the Central Government to file a civil suit. This provision does not apply to those persons residing in or carrying on business in a friendly country, indefinitely occupied by an enemy country.

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Filling Fee and DepositsEach State in India has its own separate Court Fees Act, which prescribes the amount payable towards court fees for institution of a suit and for the filing of other applications, which is computed on the basis of the suit claim amount. In case expert opinion is sought, typically, a party appointing or requesting the court to appoint an expert, pays the requisite fees. If an expert is appointed by the court, the court can require each party to share the expert’s fees.

Deposits on account of security for costs or in respect of fortification of undertakings in damages, may be required by an appropriate court. The court has the power to order security for costs from a plaintiff residing outside India, who do not possess sufficient immovable property in India. If the security is not provided, the suit may be dismissed by the court.

Default and Summary Judgement OptionsDefault judgments in cases where a party fails to enter appearance or file a defence or file an acknowledgement of proceedings, occurs in the rarest of cases in India, and even in those, the judge is required to ‘apply his mind’ in deciding the case, on the basis of recorded rational and cogent reasons. A default judgment so entered may be set aside by an order of the court, if sufficient reasons are presented by the defaulting party. In case of non-appearance before the court, the courts have been given the power to attach the property of the defaulting witness/party, in order to compel such person to appear before the court. Also, non-filing of a defence or acknowledgement of proceedings can be condoned by the court.

Summary judgment is available to help a plaintiff to obtain judgment faster, in cases involving a written contract or guarantee such as bills of exchange, hundies and promissory notes, where the plaintiff only seeks to recover a debt or liquidated demand in money with or without interest. This avoids the need for interlocutory procedures, such as discovery, and the expense and delay of a full trial. Where the defendant fails to appear upon being served a summons by the court, the contentions stated in the complaint are deemed to be admitted and the plaintiff is entitled to a decree for any sum not exceeding the amount set out in the summons, together with the interest. In the event that the defendant appears, he has to give notice of leave to defend. The defendant is not automatically entitled to leave to defend, but only on demonstration of a valid and good defence. If the defendant has no defence, or the defence is illusory or a sham the court may allow the defendant to prove a defence, but has the power to protect the plaintiff by imposing a condition that, the amount claimed should be deposited in court or otherwise secured.

Length of ProcessThe timelines for hearing applications/motions for interim relief in a suit (proceedings between private parties) as well as writ proceedings (between private party against Government or its agency) are fairly quick. The parties can get a hearing on urgent interim applications within a day or two and interim applications at times get disposed of in about 2-6 months. However, the final disposal/judgment in a suit/writ proceeding may take anything between 2-7 years depending upon the complexities involved in a matter. This is likely to be extended or delayed further, in case parties appeal against interim or final orders. Urgent commercial matters or cases where there is a supervening public interest may be given expedited hearings depending on the urgency.







Discovery Disclosure and discovery processes in India are reasonably extensive and are governed by the Code in civil suits. Parties are required to attach to the pleadings, originals (or copies) of documents referred to in the pleadings. If a party’s disclosure is insufficient, the other party may, with the leave of the court, require further disclosure. Either party may, with the leave of the court, issue interrogatories (written questions which must be answered on affidavit) to the other to narrow down the issues, either by obtaining admissions or proper factual details. Answers to interrogatories may be tendered in evidence. A party may also require the other party to offer inspection of documents, where necessary, for a fair disposal of the suit or in order to save costs, and, failing compliance, obtain an order of inspection from the court. Non-compliance with an order for disclosure or to offer inspection or to answer interrogatories, can lead to the court striking out the claim or defence. Apart from documents, either party may lead evidence through witnesses. The court may appoint a commissioner to record evidence. In lieu of evidence in chief, evidence is led by affidavit; followed by cross-examination and, if essential, by re-examination.

Common Forms of ReliefCourts have extensive powers to grant interim remedies. These include injunctions to maintain the status quo or to prevent a defendant from removing or disposing of property with a view to defraud creditors; pre-judgment attachment of the assets of a defendant, who has absconded or left the local limits of the court’s jurisdiction. In some extreme cases, injunctions are also granted when the defendant does not abscond, but has removed property from the court’s jurisdiction (or is about to do any of the foregoing) to delay the plaintiff, to avoid the process of the court or to obstruct or delay the execution of a decree that may be passed against him.

A receiver may also be appointed to take charge of a property, pending hearing and disposal of the claim. In addition, the courts have the power to issue commissions/appoint local commissioners to (i) make local investigations; (ii) conduct scientific investigations; and (iii) examine or adjust accounts, or sell any movable property in the custody of the court.

Substantive remedies are wide ranging and include declarations, specific performance, permanent injunctions (perpetual or mandatory), damages, recovery of immovable property, delivery of moveable property, possession and mesne profits, cancellation of documents, dissolution of partnership, rendition of accounts, etc. Non-compensatory (punitive or exemplary) damages are rarely awarded in India.

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Enforcement of Foreign AwardsThe government has the power to notify a country or territory outside India as a reciprocating territory for the purposes of enforcement/execution of foreign decrees. Decrees of superior courts of these reciprocating territories under which a sum of money (not being money payable in respect of taxes or charges of like nature), is payable, may be executed in India. Judgments from non-reciprocating territories may be enforced by instituting a suit in India, where the foreign judgement has mere evidentiary value.

A foreign judgment is conclusive as to any matter directly adjudicated upon between the same parties or under the same title except where the judgment has not been pronounced by a court of competent jurisdiction, or the judgment is not on merits, or is founded on an incorrect view of international law or is founded on a refusal to recognise Indian law (where such law applies), or was obtained in proceedings opposed to natural justice, or has been obtained by fraud, or sustains a claim founded on a breach of Indian law.

A foreign award can be enforced in India if the New York Convention, 1958 or Geneva Convention, 1927 applies to the agreement in pursuance of which the award is made. In addition, the foreign award must have been made in a territory that has been specified by the Government of India as a territory to which the Convention applies. It is essential that the legal relationship between the parties be commercial, and the award be made in pursuance of an agreement in writing.

Enforcement may be refused if the subject matter of the dispute was not capable of settlement by arbitration under Indian law or if the enforcement of the award was contrary to Indian public policy or if award has been appealed against by either party and/or set aside by an appropriate court.

Alternative Dispute Resolution The Indian Arbitration and Conciliation Act, 1996 (“Act”) is based upon, but is not identical, to the UNCITRAL Model Law. The Indian Council for Arbitration is the main national arbitration institution. The Indian Institute of Arbitration and Mediation, certain Chambers of Commerce and the Bombay Incorporated Law Society also provide institutional arbitration. The London Court of International Arbitration and Permanent Court of Arbitration have also opened regional centers in India in the recent past.

The Act also envisions dispute settlement through the process of mediation and conciliation proceedings. The formal provisions for mediation are outlined in the Code, where the concept of ‘ judicial mediation’ is enshrined. This mechanism enables courts to apply mediation rules in cases before a court that indicate a possibility of an amicable settlement. Mediation is therefore, now beginning to play an important role in resolving disputes. Conciliation is a process of negotiation facilitated by an independent impartial third party that hears matters (in relation to questions of fact and law) and based on its findings, attempts to persuade parties to accept a mutually acceptable resolution of the disputes.







The Act endeavours to reduce court intervention. The court may intervene to grant appropriate interim measures such as maintaining the status quo, securing the amount in dispute in arbitration, or the detention, preservation or inspection of the subject matter of the dispute. The court may also intervene, at the request of the tribunal or at the request of a party, to provide assistance in taking evidence. A party may also apply to the court for termination of mandate of an arbitrator. In addition, the Chief Justice of a High Court or the Chief Justice of India may intervene to help with the constitution of the arbitral tribunal. The arbitral tribunal is empowered to grant a wide range of relief including injunctions and costs to facilitate the process of arbitration. The Act envisages a flexible system to bypass the rigors of the court but it is to be noted execution/enforceability of arbitral awards remains to a large extent, subject to the review of courts and may therefore, in some cases be prolonged.

CostsCourts in India have the discretionary power to award costs, miscellaneous costs etc. in respect of expenditure incurred by either party. The court also has the power to direct payment of compensatory costs against a party who delays proceedings or who knowingly raises a false or vexatious claim or defence. Certain High Courts (for example, the High Court of Mumbai) have framed rules for costs awards, and have capped maximum costs at INR 25,000 (Approximately USD 550). However, the power of the courts to award costs is discretionary and the courts may award higher costs depending on the specific facts and circumstances of the case.

prepared by

Pallavi S. Shroff PartnerAmarchand & Mangaldas, Suresh A. Shroff & Co.

T: +91 11 2692 0500, 4159 0700

F: +91 11 2692 4900, 2692 2900


prepared by

Ruchi Agnihotri MahajanPrincipal AssociateAmarchand & Mangaldas, Suresh A. Shroff & Co.

T: +91 11 2692 0500, 4159 0700

F: +91 11 2692 4900, 2692 2900


prepared by

Binsy SusanSenior AssociateAmarchand & Mangaldas, Suresh A. Shroff & Co.

T: +91 11 2692 0500, 4159 0700

F: +91 11 2692 4900, 2692 2900


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OverviewIndonesia’s legal system is based on civil law. The Indonesian judicial system is comprised of separate courts of first instance that have the authority to try civil, criminal, industrial relations, state administrative, tax and constitutional cases. High Courts are the courts of appeal for decisions made by the District Courts. These courts are under the supervision of the Supreme Court of the Republic of Indonesia which is the court of appeal for decisions made by the High Courts. In addition, Indonesia also has a Constitutional Court, which has the authority to conduct judicial review of laws enacted by the People’s Representative Assembly as well as to adjudicate whether or not the President and/or Vice President has violated the law based upon the application of the House of Representatives. Both the Supreme Court and Constitutional Court are the highest courts in Indonesia and they are independent of each other.

Litigation FundingIn most cases, Indonesian litigators will charge a flat fee for each level of litigation. A portion of the fee is normally required to be paid in advance and the balance upon completion of the trial or appeal, as the case may be. In some cases, litigators will charge on a success fee basis which is still usually accompanied by a non-refundable deposit. Contingency fees are not prohibited. In some cases, litigators will charge on an hourly basis.

Indonesia

Class ActionsIn Indonesia, the definition of “class action” is a procedure to file a lawsuit whereby one or more individuals representing a group file a lawsuit for their own interest, or for the interest of a group that has a large number of people with similar facts or legal basis between the group representative and the group members.

A class action lawsuit may be filed when (i) there are so many group members that it is inefficient and ineffective to file lawsuits individually or collectively; (ii) there are similar and substantial facts or events, legal grounds, and claims filed by the group representative and group members; and (iii) the group representative is honest and willing to protect the interest of his members.

In the event the lawyer conducts any violation in defending and protecting the interests of the group members, the judge may suggest the group representative change lawyers.

Other than fulfilling the formal requirements of formal lawsuits under the Indonesian Civil Procedural Law, a class action lawsuit must stipulate the complete identity of the group’s representative; specific details of the group, even though it does not need to mention the group members by name; information concerning the group members; and the merits of the cause(s) of action of the entire group. In the event that there are different claims due to differences in causes of action or damages, the lawsuit may be categorised into parts of a group or sub-groups. Claims for compensation must be stipulated clearly and in detail and the claim must contain a proposal regarding the mechanism or procedure for the distribution of compensation to all group members, including the mechanism or procedure for the establishment of a team or a panel to manage the distribution of compensation.







A class action lawsuit must be filed to the relevant District Court where the defendant is domiciled. After the judge decides that the filing of the class action is legitimate, the group representative must inform its group members through a newspaper or electronic media publication, an announcement at a government office or via direct communication. After the notification is made, the group members, within a certain timeframe, are given the opportunity to withdraw from membership of the group. Thereafter, the proceedings of the class action lawsuit must be in accordance with the provisions set out in Indonesian Civil Procedural Law.

Filing Fees & DepositsThe filing fees to commence an action in the District Court are fixed and modest (equivalent to USD 150). There are also modest fees for filing appeals. It is possible to apply to the courts for interim injunctions of various kinds but there is no system for the posting of “security for costs” as that expression is known in many overseas jurisdictions.

Foreign LitigantsA foreign litigant can hire a duly licensed Indonesian litigation lawyer and commence legal proceedings in the Indonesian courts.

Default & Summary Judgment OptionsIn civil cases in practice, a default judgment may be issued if the defendant or his duly appointed attorney fail to appear after three consecutive hearings after being properly served. The rules permit the defendant to file an objection to the default judgement. All legal process is served by officers of the court itself and not by private process servers.

Summary judgment is not recognised under the Indonesian civil procedural law.

Length of the ProcessIn principle, the court of first instance (i.e., District Court) should issue its judgment within six months. However, there are many legal reasons for civil litigation proceedings to be delayed. In practice, trials take place in a series of separate hearings (rather than in a single hearing over a period of consecutive days) and the trial judgment is usually rendered within one year. Appeals to the High Court may take between two to three years. Since there is no system at the Supreme Court level for leave to appeal, there is an enormous backlog of cases at the Supreme Court. Currently, Supreme Court appeals may take between three to five years except perhaps in special emergency circumstances.

DiscoveryThere is no system for pre-trial discovery as that term is known in many other jurisdictions. Rather, the documentary evidence and evidence of witnesses is introduced in open court in the presence of the panel of District Court judges in a series of hearings. This phase of the trial process is referred to as “authentication”. There are five types of evidence recognised by the rules of civil procedure as follows:

• Documentary evidence which consists of ordinary documents, notarial deeds and privately executed agreements;

• Verbal testimony of witnesses under oath in open court;

• Inferences;

• Confessions; and

• Written witness statement sworn in the presence of a notary public.

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In addition to the five forms of evidence, the following evidence is also recognised in practice:

“Judicial notice”: The court has discretion to take into account its own knowledge of relevant facts and circumstances. Judicial notice without inquiry is taken where facts are so much part of common knowledge that they require no proof at all. Judicial notice can be said to assist the party which would otherwise bear the burden of proof in relation to a fact in issue because if the fact is judicially noticed it is established, without that party having to call evidence and convince the tribunal of that fact. We also note that given Indonesia’s “inquisitorial” judicial system, the judges themselves can pose questions of witnesses and request other relevant evidence.

Electronic Documents: Based on the Electronic Information and Transactions Law of 2008, the courts are now expressly entitled to accept electronic information and/or electronic documents and correspondence as valid legal evidence. However, this excludes those documents that are required by law to be in a written form, or in a notarial deed form or required to be drawn up by land deed officials.

Although Indonesia does not have pre-trial discovery procedures, the Indonesian Civil Procedural Law does state the broad principle that “a person who claims to have a right, or refers to a fact to substantiate his right, or to contradict someone else’s right, must evidence the existence of that right or of that fact”.

Common Forms of ReliefThe following are the most common types of awards made in Indonesian proceedings in descending order of frequency:

• Damages awards based on actual damages incurred and proven;

• Provisional attachments (seizure of property by way of interim order);

• Orders for specific performance.

The Indonesian courts do not award punitive damages or costs.

Enforcement of Foreign AwardsIndonesia is not a party to any reciprocal enforcement of judgments treaty. Therefore, foreign judicial decisions are not enforceable in Indonesia but may be introduced as evidence in a new action commenced in Indonesia.

Alternative Dispute ResolutionIndonesia has ratified the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards and has implemented that treaty in the Indonesian Arbitration Law. As a result, foreign arbitral awards are recognised and enforceable in the Indonesian courts. It is recommended to provide for final and binding arbitration in most commercial contract situations in Indonesia.







CostsCourts do not award costs in civil litigation proceedings. Therefore, there is no system for the differentiation or taxation of “party to party costs” or “solicitor and client” costs as those expressions are known in some jurisdictions.

prepared by

Richard D. Emmerson Soewito Suhardiman Eddymurthy Kardono

T: +62 21 521 2038

F: +62 21 521 2039


prepared by

Dimas D. Rangga Indartono Soewito Suhardiman Eddymurthy Kardono

T: +62 21 521 2038

F: +62 21 521 2039


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OverviewJapan’s modern legal system was first established in the late 19th century, drawing mainly from the influence of the German civil law legal system with some features of the French legal system. It was updated in the 20th century after the close of World War II with features of the Anglo-American common law legal system. Today, Japan’s civil judiciary is a hybrid of a civil law system with common law features, both inquisitorial and adversarial at the same time.

The system consists of a 4 tiered judicial hierarchy comprising of Summary Courts, District Courts and Family Courts, High Courts, and the Supreme Court, in that order. The Summary Courts are the courts of first instance for civil cases involving claims not exceeding JPY 1.4 million. Cases heard at Summary Court level may be appealed to the District Courts. Civil cases involving claims exceeding JPY 1.4 million (approximately USD 18,000) are referred directly to District Courts with the result that most cases involving commercial litigation usually begin at District Court level. All cases are presided over by professional full time judges and the Judiciary is independent and separate from the Executive and Legislative branches of government. Cases tried in District Court may be appealed to the High Court, which is the intermediate appeal court. For matters involving Intellectual Property, the IP High Court in Tokyo has exclusive jurisdiction to hear appellate cases. The Supreme Court is the court of final resort. A case may only be appealed to Supreme Court level if the ruling made prior involved a significant error of law, a violation of the constitution or a conflict with existing Supreme Court precedent.

Japan

Litigation FundingTraditionally attorney fees in Japan are calculated via a combination of non-refundable retainer fees and a success fee. This means a client pays a fixed retainer fee at the outset and pays an additional success fee at the closing (if the desired outcome is achieved). Although no official guidelines exist for regulating the charge of legal fees, previously the Japanese Bar Association had published fee scale rates at which fees were recommended to be charged. Following criticism by the Japan Fair Trade Commission on possible anti-trust issues arising out of this practice, the Japanese Bar Association no longer produces such recommendations. However many modern lawyers still charge their fees based on such past recommendations.

Conditional fee arrangements, under which a lawyer receives no fee at the outset, but receives a contingent fee upon a successful trial are not popular or common in Japan.

In recent times, the larger firms in Japan have adopted the western style charging policy of using billable hours, especially for corporate clients.

Class ActionsThere is currently no mechanism allowing for class action suits in the Japanese legal system. However, a group of legal scholars and practitioners commissioned by the government is currently discussing the introduction of a European style opt-in type of class action system.

Under the current system, if multiple parties bring separate proceedings against a single defendant regarding the same issue, the parties may petition for the judge to consolidate the proceedings to join the parties as a single plaintiff. The decision to perform such consolidation is left to the discretion of the







judge who will decide on a case by case basis in light of the option which is most beneficial to the interests of justice.

Japanese law also allows special interest groups such as consumer rights protection organisations to bring proceedings against large corporate entities (such as drug manufacturers) with a view to furthering the interest of the people represented by the group. However in such cases, the special interest group is considered the plaintiff rather than the people whose interests it represents.

Foreign LitigantsThe Japanese court system does not distinguish between foreign and local Japanese litigants and its usage is open to all litigants equally and without prejudice.

In proceedings involving a foreign plaintiff, the court may, at the request of the defendant, require the foreign plaintiff to deposit a monetary bond to cover the defendant’s procedural cost. Although this request may theoretically be used tactically by the defendant, in reality, the amount of the bond to be deposited will usually be less than JPY 1 million (approximately USD 13,000). In addition, if the country in which the foreign litigant resides is a signatory to the Hague Convention on Civil Procedure, it will not be required to pay the bond.

Filing Fees & DepositsFiling fees for civil cases are set out by local statute and are dependant on the size of the claim involved. The fees span a wide range with, for example, a case involving a claim of JPY 10 million (approximately USD 128,000) will incur a filing fee of JPY 50,000 (approximately USD 640) whereas a case involving a claim of JPY 100 million (approximately USD 1,279,000) will incur a filing fee of JPY 320,000 (approximately USD 41,000).

Deposits of any kind are generally not required, however as mentioned above, a foreign litigant may be required to deposit a token sum of money as a bond if such request is made of the court by opposing counsel.

Default & Summary Judgment OptionsIn the event that a party summoned to appear before the court fails to make an appearance, the court may at its own discretion pass default judgement based on the existing facts of the case.

In principle, the Japanese legal system does not distinguish between the pre-trial and trial phase during its proceedings. The court has the discretion to decide on a case based solely on the pleadings and written submissions of the parties. If the presiding judge is of the opinion that the appearance of the witnesses in court will not add any substantive value to the case, he may choose to forgo this stage of the proceedings and proceed directly to the ruling.

Length of the ProcessThe overall length of civil litigation in Japan is around 1 to 2 years at first instance, depending on the complexity of the issues. In the past, civil litigation in Japan was slow and time consuming. However, several major reforms in the past two decades have led to the streamlining of the process and improved the overall efficiency and viability of civil litigation in Japan. In 2003, Parliament passed a statute mandating that all civil cases decided at the level of the court of first instance should be resolved within 2 years (not including the appeal). Reforms are still ongoing and we can expect to see even more improvements further refining the litigation process in the years to come.

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DiscoveryThe Japanese legal system is modelled after the civil law tradition and as such, no particular rules of discovery exist. A party’s entitlement to submit evidence is not limited although the question of relevancy will ultimately be determined by the court. Accordingly, barring certain limited exceptions, a party cannot impose on the court to demand the disclosure of evidence from the opposing party.

Common Forms of ReliefVarious forms of relief are available under the Japanese civil law system including compensatory damages, specific performance, injunction and declaratory judgment upholding the validity of the issue in contention. In principle, damages awarded under Japanese civil proceedings are compensatory only and punitive damages are never awarded. All monetary awards are usually subject to a statutory interest rate of 6% for commercial cases and 5% for civil cases.

Enforcement of Foreign AwardsThe Japanese judiciary will recognise and enforce a foreign civil judgment if the following criteria are fulfilled. First, the foreign court’s judgment must be final and irrevocable. Second, the foreign court must be recognised as having jurisdiction over the matter in accordance with the principles of foreign jurisdiction under Japanese law. Third, the defendant must have been duly served and has appeared or otherwise had the opportunity to appear in court. Fourth, the procedure and content of the judgment must not be contrary to public policy. And lastly, there must be a guarantee of reciprocity between the foreign jurisdiction and that of Japan.

If the four conditions above are fulfilled, the foreign judgment will be enforced in Japan. The burden of proof will be on the plaintiff in such proceedings to prove to the court that all the above conditions have been fulfilled.

Japan is also a party to the New York Convention and as such, the Japanese judiciary is generally arbitration friendly and will enforce arbitral awards originating from other countries.

Alternative Dispute ResolutionADR has been increasing in popularity in recent times. In 2004 the Law Concerning Promotion of Alternative Dispute Resolution was promulgated, and provides for the appointment of private entities as officially recognised Alternative Dispute Resolution organisations, and mandates the Japanese government’s commitment to heading in this direction.

Historically, mediation has been a feature of the Japanese legal system, and even today, Japanese courts continue to recommend and even provide mediation. In certain types of proceedings, it is even mandatory for parties to seek mediation before approaching the courts.

Likewise, in matters relating to labour and employment issues, Japanese courts also provide for cases to be heard before a labour tribunal chaired by a panel of 3 (One judge and two neutral experts).

Arbitration was previously an unpopular alternative to litigation in Japan due to the presence of archaic arbitration laws which were drafted over a century ago and which remained unchanged until recently. Since the update of these laws in 2003 arbitration is beginning to enjoy a surge in popularity. The updated arbitration law now adopts the UNCITRAL Model Law on international commercial arbitration.







CostsIn Japan, court costs incurred by civil proceedings are attributed by law to the losing party. All other costs (including legal fees) are borne by the respective parties regardless of the outcome. The only exception to this is in tort and personal injury cases where the court will routinely award a further 10% of the compensatory damages to the successful plaintiff as attorney’s fees to cover part of his legal costs.

prepared by

Yoshimasa FurutaPartnerAnderson Mori & Tomotsune

T: +81 3 6888 1000

F: +81 3 6888 3056


prepared by

Brian Luke GohForeign Legal TraineeAnderson Mori & Tomotsune

T: +81 3 6888 1000

F: +81 3 6888 3056


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OverviewThe Korean Civil Procedure Act (“KCPA”) provides the basic procedural framework for civil litigation in Korea.

In Korea, a civil lawsuit can be heard by three different successive levels of courts: (i) the court of first instance, or the district court; (ii) the intermediate appellate courts, or the high court (or the appellate panel of the district court); and (iii) the Supreme Court. Both the district courts and the high courts are divided into geographic districts.

The district courts are the courts of first instance for both civil and criminal matters. A case before the district court may be presided over by a single judge or a panel of three judges, depending on the value and nature of the claim. Appeals from decisions of the district courts are taken to the high courts. The high court, composed of a panel of three judges, undertakes a de novo review of the district court’s decision on matters of both law and fact. Therefore, the high court will accept new evidence and arguments in addition to reviewing the record of the district court trial. Appeals from the high courts are taken to the Supreme Court, but only on questions of law, and no new evidence may be introduced in the Supreme Court.

It should be noted that Korea follows the civil law tradition, and thus, its judicial system emphasises statutory interpretation over judicial precedents.

Litigation FundingWhile there is no law or regulation that specifically prohibits funding of a lawsuit by a third party, provisions of the Attorney-at-Law Act ban non-members of the Korean Bar Association from engaging in any activities relating to lawsuits or legal disputes. However, contingency fee arrangements are allowed and frequently used in Korea.

Korea

Class ActionsKorea does not have general class action procedures. However, class action lawsuits for damages arising out of securities transactions can be brought under the Securities Class Action Act. The Securities Class Action Act allows one or more individuals to seek damages for injuries arising out of securities transactions on behalf of a large group of similarly situated but absent individuals. Korean court procedures for securities class actions are largely based on the US class action procedures. For example, the ruling in a Korean securities class action case is binding on all actual and potential plaintiffs, and explicit authorisation from the absent class members is not required. Also, class certification must be obtained from the court.

In addition, under Articles 70 to 76 of the Consumer Basic Law, a consumer group with certain qualifications is allowed to bring a class action against an enterprise that committed an act causing potential or actual harm to the consumers’ right to life, body, or property, and to seek injunctive relief.

Otherwise, people desiring to bring an action on the same cause of action may file an action collectively. In such collective actions, however, only those participating in the suit would be subject to the outcome of the case.

Foreign LitigantsIf the plaintiff does not have a presence in Korea, the defendant may seek an order for the plaintiff to provide security for court costs. Subject to court approval, the security for court costs may be provided by way of a surety bond.

Filing Fees & DepositsStamp taxes (filing fees) must be paid by the party instituting an action or appeal. The amount is based on the claim amount. The amount of the stamp tax for filing a complaint with a district court is







calculated by multiplying the claim amount by a fraction as specified under the Stamp Tax Act. Under that statute, for example, if the claim amount exceeds KRW 1 billion (approximately USD 900,000), the stamp tax will be 0.35% of the claim amount, plus KRW 555,000 (approximately USD 500).

The stamp tax of the high court is 1.5 times the tax at the district court. The tax of the Supreme Court is twice that of the district court.

Default & Summary Judgment OptionsIf the defendant fails to appear and defend the plaintiff ’s claim in a civil lawsuit, in principle, the court will deem that the defendant has acknowledged the existence of the liabilities as alleged by the plaintiff and may render a decision in favour of the plaintiff for the entire claim amount without holding any further court hearings.

There is no procedure for summary judgment or adjudication in Korea.

Length of the ProcessOnce the plaintiff files a complaint (attaching the relevant documentary evidence) with the court having proper jurisdiction, the defendant must file a response. The parties will then exchange briefs and submit additional evidence in support of their respective claims and defenses.

In Korea, there is no concentrated trial that lasts for a number of consecutive days, as in the US Rather, the court would first hold one or more preparatory session(s) to clarify the issues in dispute and then conduct several short hearings until it determines it has received sufficient arguments and evidence to make a decision. Generally, there may be more than one court hearing, each being held at an interval of several weeks. Upon the closing of the hearings, the court will announce a judgment.

Typically, it takes about (i) 8 to 12 months (substantially longer for more complex cases) for a district court to render a judgment, (ii) an additional 8 to 12 months for a high court to render a judgment, and (iii) another 4 to 12 months for the Supreme Court to render a final judgment.

DiscoveryAll forms of discovery are ordered and conducted by the court. For example, a party cannot directly ask the other party to produce documents or witnesses. Also, there is no such procedure as depositions; all witness testimonies must be taken during a court hearing.

A party can make a request to the court to issue an order for document production by the other party or a third party. A request can also be made for an onsite inspection (e.g., accident site, manufacturing facility where the subject product was produced). A party may also petition the court to appoint an independent expert witness, or the court may commission an official agency, university, or research institute having the necessary expertise to provide an expert opinion.

Common Forms of ReliefCommon forms of remedy in Korean civil litigation include compensation for actual damages and injunctive relief. Punitive or exemplary damages are not available under Korean law.

Also, interest is generally awarded on the judgment amount, typically at fixed published rates (currently 6% for commercial claims and 5% for other claims).

Enforcement of Foreign AwardsUnder the Civil Enforcement Act, in order to enforce a foreign judgment, the petitioner must request and obtain from a Korean court an enforcement

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judgment for the decision of a foreign court. A Korean court would allow a foreign judgment to be enforced in Korea if the following prerequisites are met: (i) the foreign judgment is final and conclusive; (ii) the court that rendered the judgment had valid jurisdiction; (iii) the defendant was properly served (other than by publication) with the summons necessary to start the proceedings, or voluntarily appeared in the action; (iv) the judgment does not offend the good morals or public order of Korea (referred to as the “public policy” requirement); and (v) there is a guarantee that a Korean court judgment would similarly be recognised and enforced by the courts in the country of the origin of the foreign judgment (referred to as the “reciprocity” requirement).

Alternative Dispute ResolutionArbitration and court mediation are commonly used for resolution of civil disputes in Korea.

Arbitrations are governed by the Korean Arbitration Act, which was originally enacted in 1966, wholly revised in 1999 and is largely based on the UNCITRAL Model Law on International Commercial Arbitration of 1985. An arbitration award is granted the same binding effect as a judgment rendered by the court.

Mediations, also known as judicial conciliation, are governed by the Judicial Conciliation of Civil Disputes Act. Mediation can be commenced in two ways. First, the parties to a civil dispute may file a petition with a court to commence mediation proceedings to resolve the dispute. Also, after a party files a complaint with a court, the court may refer the dispute to judicial conciliation proceedings which would be conducted before a conciliation committee composed of a judge or two or more court-appointed mediators.

CostsCourt costs consist of stamp taxes (discussed above), service of process fees, and other out-of-pocket expenses (fees for witnesses, photocopies, etc.).

The costs for service of process and other out-of-pocket expenses (including witness fees for local fact witnesses) are nominal. The costs of expert witnesses are determined separately, depending on the expert’s rate.

The losing party is to bear the full amount of the aforementioned court costs. However, for attorney’s fees, only a limited portion of the fees is recoverable pursuant to a schedule promulgated by the Supreme Court.

prepared by

Sang-Ho HanKim & Chang

T: +82 2 3703 1177 / +82 2 3703 1317

F: +82 2 737 9091


prepared by

Brian C. Oh Kim & Chang

T: +82 2 3703 1177 / +82 2 3703 1317

F: +82 2 737 9091













Malaysia

OverviewThe Malaysian legal system is based on common law which is a direct result of the colonisation of Malaya from the early 19th century to the 1960s. The Constitution of Malaysia is the supreme law of the land which sets out the legal framework and rights of all Malaysians while federal laws enacted by the Parliament apply throughout the country. There are also state laws enacted by the respective State Legislative Assemblies which apply to a particular state. Malaysia’s legal system is unique as it provides for a dual justice system comprising of secular laws (criminal and civil litigation) and syariah laws.

Syariah laws only apply to Muslims. With regards to civil law, the Syariah courts only have jurisdiction in personal law matters such as marriage, inheritance and apostasy.

The court process is adversarial.

In very recent times, the Malaysian legal system has made various improvements to its procedures and management of cases. Alternative Dispute Resolution (“ADR”) have also been greatly encouraged by the courts. These recent developments in the system aim to improve efficiency, effectiveness and fairness in the administration of justice in Malaysia.

Litigation FundingThe Bar Council Legal Aid Centre (BCLAC) was founded by the Malaysian Bar Council to provide free legal advice and representation to persons with limited means. The BCLAC is funded by the sole contribution of members of the Bar and cases are taken on a voluntary basis by dedicated lawyers.

In February 2011, the National Legal Aid Foundation (“NLAF”) was set up under the joint initiatives of the Bar Council and the Government of Malaysia. The NLAF is an independent body to administer the funds given to legal aid and to appoint legal aid lawyers.

Apart from BCLAC, Biro Bantuan Guaman (“BBC”) is another organisation which provides free or subsidised legal services to the general public in Malaysia. The BBC is a governmental body under the Legal Affairs Division, Prime Minister’s Department.

Generally, persons with combined annual household income of less than RM 25,000 (approximately USD 8,928 at the exchange rate of RM 2.80 to USD 1.00) are entitled to seek legal aid either from the NLAF or the BBC.

Class ActionsA representative action may only be brought in Malaysia if numerous parties have the ‘same interest’ in the proceedings.

A party seeking to bring a representative action would also have to ensure that proper endorsement is made on the writ. In addition, there may be a need to add, drop or substitute parties in the course of proceedings which would entail invoking court rules concerning misjoinder and non-joinder of parties.

For a representative action in the lower courts, the party suing or being sued in a representative capacity must have the capacity stated in the title of the summons and in the statement of claim and must be in one of the prescribed forms. Similar to the High Court, where there is a need to add, drop or substitute parties during the course of proceedings, the party intending to do so would have to invoke the court rules governing misjoinder and non-joinder of parties.

Foreign LitigantsForeign litigants are allowed access to Malaysian courts if they can show the requisite connection with the jurisdiction. The courts are guided by the principle of forum non conveniens and lis alibi pendens in determining the appropriate jurisdiction to bring an action.

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Filing Fees & DepositsWith regards to the commencement of a cause or matter in the High Court, the court fees for the sealing of a writ of summons is RM 200 (USD 71), and sealing of an originating summons is RM 80 (USD 28.57). With regards to the commencement of a cause or matter in the lower courts, the court fees for the sealing of a summons is RM 100 (USD 38) for the Magistrates Court and RM 50 (USD 19) for the Sessions Court. The sealing of an originating application is RM 40 (USD 15.20).

Additional deposits for security for costs or for undertakings in damages may be required especially in actions involving interlocutory injunctions and commonly, in actions involving foreign plaintiffs.

Default & Summary Judgment OptionsIn default of entering appearance to a writ or originating summons, final judgment may be entered against a claim for liquidated damages by the plaintiff against the defendant. As for unliquidated damages, an entry of an interlocutory judgment by the plaintiff may be made to the court. Final or interlocutory judgments may only be entered subject to the plaintiff producing a certificate of non-appearance and either an affidavit proving due service of the writ or notice of the writ on the defendant, or the plaintiff produces the writ indorsed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf. The court may, however, set aside or vary any judgment entered.

Summary proceedings for liquidated damages or possession of land may be made by way of a summons in chambers in a writ action or originating summons where there are no triable issues.

Length of the ProcessThe duration of a litigation action may range from as quick as 3 months (for summary judgment cases) up to 10 years for very complex litigation actions, which may lead to the losing party filing an appeal to the Court of Appeal and thereafter to the Federal Court, which is the apex court in Malaysia. In early 2009, a new ‘fast track’ system was implemented, whereby inter alia, new commercial and new civil courts were set up with a strict timeline to dispose of all new cases within 9 months from the date of filing of the action.

A computerised system has also been introduced that allows for, among others, electronic filing, video and audio recording of trials, and easier monitoring of cases.

Discovery Procedural rules of the courts provide for discovery of documents. Mutual discovery of documents shall be made within 14 days after the pleadings in the action are deemed to be closed. A court order for the discovery of documents will only be made on an application by one party against another, whereby the court is satisfied that the order is necessary for disposing of the matter fairly or for saving costs. Generally, directions will also be made by the court during pre-trial case management for parties to exchange documents.

Common Forms of ReliefIn litigation proceedings, the Malaysian courts are likely to make awards for liquidated damages, specific performance orders and injunctions. The common modes of execution after judgment has been obtained are:







• Winding-up petition (for companies),

• Bankruptcy petition (for individuals),

• Prohibitory Orders (to seize and sell immovable property),

• Write of Seizure and Sale (to seize and sell immovable property),

• Garnishee (to attach debts due to the judgment debtor from third parties),

• Charging Order (to seize and sell securities owned by the judgment debtor),

• Writ of Possession (to recover possession of immovable property).

Pursuant to the Rules of High Court 1980, every judgment debt shall carry interest at a rate of 8% per annum to be calculated from the date of judgment until full settlement of the judgment debt.

Enforcement of Foreign Awards Under the Reciprocal Enforcement of Judgment Act 1958, judgments of a Superior Court (i.e., High Court) in reciprocating countries can be registered in Malaysia, and upon registration, such judgments can be enforced in Malaysia.

In the case of foreign judgments which fall outside the ambit of the Reciprocal Enforcement of Judgment Act 1958, a fresh action must be brought on the judgment debt in the Malaysian Court under the common law.

Alternative Dispute ResolutionMediation: The Malaysian Mediation Centre (“MMC”) is based in Kuala Lumpur. It was established by the Malaysian Bar Council with the objective of promoting mediation as a means of ADR. Currently, the MMC only accepts civil, commercial and matrimonial matters but intends to expand its scope of services to cover other matters at a later stage.

In year 2010, the Chief Justice of Malaysia issued a practice direction to the judiciary to encourage mediation in the courts. It is now common practice in certain courts that parties are asked to attempt mediation before the case is fixed for hearing or trial. Mediation by the courts is conducted before the judge in the presence of the parties, with or without the parties’ respective counsel. In the event of successful mediation, the judge may record a consent order. Where mediation fails, the matter will be fixed for hearing or trial before a different judge in the interest of fairness and justice.

In support of mediation as an alternative dispute resolution mechanism, in 2011 the Kuala Lumpur Regional Centre for Arbitration (KLRCA) introduced the KLRCA Mediation/Conciliation Rules 2011 (a modified version of the UNCITRAL Conciliation Rules 1980).

Arbitration: There are two main pieces of legislation governing arbitration in Malaysia, namely the Arbitration Act 1952 (for arbitration commencing prior to 15 March 2006) and the Arbitration Act 2005 (for arbitration commencing after 15 March 2006). The existence of an arbitration agreement does not automatically oust the jurisdiction of the courts as the parties may mutually agree to have their disputes adjudicated in court.

The KLRCA was established in 1978 to provide a forum for the settlement of disputes by arbitration. The rules for arbitration under the auspices of KLRCA are the UNCITRAL Arbitration Rules as modified and adopted by the Rules of the KLRCA. In 2010, the KLRCA introduced the Fast Track Rules 2010. Under the Fast Track Rules 2010, the arbitrator shall publish his final award expeditiously and as far as practicable no later than 90 days from the commencement of the arbitration in a documents-only arbitration and no later than 140 days (subject to extensions as agreed by the parties) in an arbitration with a substantive oral hearing.

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CostsTypically, the losing/unsuccessful party will have to pay costs to the winning/successful party. Such costs will either be fixed or taxed by the court. Ever since the implementation of the ‘fast track’ system, the courts are minded to award fixed costs especially in interlocutory matters and appeals to the appellate courts to avoid taxation of costs proceedings.

prepared by

Loo Peh FernPartnerSkrine

T: +603 2081 3999 x745

F: +603 2094 3745


prepared by

Claudia Cheah Pek YeePartnerSkrine

T: +603 2081 3999 x713

F: +603 2094 3745













Pakistan

OverviewPakistan is a Constitutional Federation with four provinces.

Pakistan’s legal system was inherited by the newly-created state from the British at the time of independence in 1947. Despite a number of far-reaching reforms introduced over the six decades since independence, the system is reminiscent of its precursor, and Pakistan is still essentially a Common Law jurisdiction. The court of plenary jurisdiction is the Civil Court where all civil trials begin (excepting the province of Sindh, where the High Court has Civil Original jurisdiction in cases where a claim of PKR 5 Million or above is involved). Next in line is the District Court, which hears appeals from final decrees and interim orders passed by the Civil Court and has limited Original jurisdiction conferred by special law, for example, while acting as the Insurance Tribunal or in Trademark matters etc. The highest court of a province is the High Court which sits above the District Court and hears appeals and revisions from its decisions. The High Court, in addition to its constitutional jurisdiction mainly incorporating the principles of judicial review, has limited Civil Original jurisdiction as well, primarily in Banking and Company matters. Recently, Islamabad, the country’s capital, has been allowed a High Court of its own under the 18th Constitutional Amendment. The court of ultimate jurisdiction in Pakistan is the Supreme Court, which has the final word on any given matter.

The court process is adversarial and the rules of procedure are still largely based on the Civil Procedure Code introduced by the British, with powers vested in the High Courts to amend the procedure in their respective provinces according to local needs.

Following the movement for the restoration and independence of judiciary, the legal system has renewed its resolve for upholding the rule of law and promoting the cause of justice in the society.

Litigation FundingConditional fee arrangements (or contingency fees) are not permitted in Pakistan.

Class ActionsClass actions of the type found in jurisdictions like the United States of America are not permitted in Pakistan. However, where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. Class action suits are a rarity in Pakistan and litigants do not tend to file or defend suits in a representative capacity.

Foreign LitigantsForeign litigants may access the court system of Pakistan in essentially the same way as the citizens do. However, the suit must be brought at the place where the cause of action arises or where the defendant or each of the defendants, in case there are more than one, reside or normally carry on business. Suits regarding immovable property have to be brought in the court within whose territorial jurisdiction the property is situated. The plaintiffs not residing in Pakistan and not having sufficient property in Pakistan to pay the costs may be asked by the Court to provide security for the costs of the defendant. Such security is invariably not very high and costs are seldom awarded at the time of final judgment.

Filing Fees & DepositsThe filing fees to start proceedings are based on an ad valorem scale, depending on the relief claimed, subject to a maximum of PKR 15,000 (approximately USD 200).

Default & Summary Judgment OptionsThe claims without substance, or claims barred by law or claims not disclosing any cause of action may

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be struck out at the instance of the defendant. The claimant may also be ordered to provide full and proper particulars before he is allowed to proceed. The civil courts follow very elaborate procedures. However, in some cases i.e., relating to negotiable instruments and the recovery of loans by banks, the summary procedure is permissible. However if a defendant, despite service of notice to appear, chooses not to appear, the court may pass an ex parte decree against that defendant even in a suit under the normal procedure. Also, where a defendant fails to file a defence on time when called for by the court, his right to defend is struck off and the Court calls for the plaintiff to adduce his evidence. If found sufficient by the Court, a decree is passed on the basis of such evidence in the plaintiff ’s favor. There is no concept of a judgment being passed without the plaintiff proving his case to the satisfaction of the court according to the civil standard i.e., on the balance of probabilities.

Length of the ProcessWith the co-operation of the parties, High Court litigation can move reasonably quickly and straightforward cases can move from issue of notice to appear to judgment within 18 – 24 months (or even more quickly in the case of summary judgment cases). However, complex commercial disputes can take much longer (up to 6 years in extreme cases) especially where one of the parties makes tactical applications to slow the process down. Recently, the national judicial policy has set the time frame for different acts, but its efficacy is yet to be seen.

DiscoveryThe discovery of documents, as well as the asking of interrogatories by the court on the request of opposite side, are permissible under the law. The Court may at any time, either of its own motion or on the application of any party, make such orders as may be necessary in all matters relating to the discovery, inspection, production, impounding and

return of documents or other material objects producible as evidence. Where any party fails to comply with such order, he shall, if a Plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a Defendant, to have his defence struck out and to be placed in the same position if he had not defended.

Common Forms of ReliefThe following types of decrees are often made in Pakistan proceedings:

• Injunctions, both permanent and mandatory

• Orders for specific performance, declaration of title and refunds

• Compensation for breach of contract as well as liquidated damages awards

A host of enforcement options are also available, ranging from attachment and subsequent sale of property of the judgment debtor to sending him to civil prison. Appointment of receivers and winding up/bankruptcy orders are also not uncommon in matters pertaining to companies.

However, certain types of orders are less common or unavailable such as punitive damages awards, except in very rare cases of defamation. Interest is also commonly awarded on judgment sums, typically at fixed rates, currently 6%.

Enforcement of Foreign AwardsA foreign judgment is conclusive as to the matter thereby directly adjudicated upon between same parties as the ones before Pakistani courts, if it was pronounced by a court of competent jurisdiction on the merits of the case and the procedure adopted was not opposed to the principles of natural justice. However, the existence of reciprocal willingness by the courts of the other country to enforce judgments of the Pakistani courts is a condition precedent for enforcement of such foreign judgments.







Pakistan is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (The New York Convention) and has introduced the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act, 2010 with a view to fulfilling its obligations under the Convention. The Act applies to arbitration agreements entered into after the enactment of the Act and to foreign arbitral awards made after the 14th of July 2005. In similar fashion, the Arbitration (International Investment Disputes) Act, 2011 was promulgated to provide for the implementation of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention).

Alternative Dispute ResolutionArbitration of disputes is not very common in Pakistan, although the trend has gathered pace in the last few years. Arbitration proceedings are governed by the Arbitration Act 1940. The Court may adopt with the consent of parties alternate dispute resolution methods, including mediation and conciliation. However, in Pakistan the parties generally do not opt for mediation or conciliation.

CostsAlthough the law provides for the possibility of the court determining costs at the conclusion of proceedings and even encourages it, in practice the Courts rarely award costs to either litigant.

prepared by

Zeeshan Ashraf MeerPartnerMeer & Hasan, Attorneys at Law

T: +92 423 723 5812

F: +92 423 723 4332


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Philippines

OverviewThe Philippines is greatly influenced by the Spanish legal system and the American common law principles.

Court litigation in the Philippines is commenced by filing a complaint in court to enforce obligations arising from law, contract, quasi-contract, crime or quasi-delict. Questions of fact and law are then resolved after hearing and considering the evidence submitted by the parties. There are no juries in the Philippine Court system.

An appeal may be made to the higher courts on any grounds that would warrant the reversal of the judgment or final order such as errors of fact and law. At the highest level is the Supreme Court, which exercises appellate and review jurisdiction over cases decided by the lower courts. As a general rule, only questions of law may be raised before the Supreme Court.

In recent years, there have been efforts to speed up the resolution of disputes by requiring the parties to undergo court-annexed mediation and encouraging the use by the parties of discovery measures. The Philippines also employs alternative forms of dispute settlement such as arbitration, conciliation, and mediation, or any combination thereof.

Litigation FundingContingency fee arrangements between a client and his lawyer, where the latter would be paid attorney’s fees only if the suit or litigation ends favourably for the client, are allowed in the Philippines. Contingency fees are subject to the supervision of the court as to their reasonableness.

However, “champertous contracts” are prohibited for being contrary to public policy. These refer to agreements between a stranger and a party to a lawsuit, whereby the stranger pursues the party’s claim and receives part of or any of the proceeds recovered under the judgment as consideration. These also refer to agreements whereby an attorney agrees to pay the expenses of proceedings to enforce the client’s rights, and receiving, if successful, a part of the proceeds or property sought to be recovered as consideration. In this regard, the Canons of Professional Ethics prohibits a lawyer from agreeing with a client to pay or bear the expenses of litigation. Although a lawyer may in good faith, advance the expenses of litigation, the same should be subject to reimbursement.

A written contract for professional services ordinarily controls the amount of fees that the contracting lawyer may receive, unless the stipulated amount is considered by the court to be unreasonable or unconscionable. If the fees are found to be excessive, the contract may be disregarded and the amount reduced by the court.

Class ActionsClass suits, defined as an action where one or more parties sue for the benefit of all, are permitted in the Philippines. For a class suit to prosper, the Rules of Court requires the following: a) the subject matter of the controversy must be of common and general interest to many persons; b) the persons are so numerous that it is impracticable to join all as parties; c) the parties actually before the court are sufficiently numerous and representative as to fully protect the interest of all concerned; and d) the representatives sue or defend for the benefit of all.







Foreign LitigantsForeign litigants are allowed access to the Philippine judicial system provided that the court has jurisdiction over the parties and the subject matter of the case, and also that the foreign litigant is capable of showing a substantial basis for his choice of the Philippines as the forum. Otherwise, the case may be dismissed based on the court’s lack of jurisdiction or on the principle of forum non conveniens.

As a general rule, a foreign corporation doing business in the Philippines without the requisite license is barred from suing before the Philippine courts. The term “doing business” has been given a technical meaning by law, and generally refers to all acts that imply a continuity of commercial dealings or arrangements, and contemplates to that extent the performance of acts or works, or the exercise of some of the functions normally incident to, and in progressive prosecution of, commercial gain or the purpose and object of the business organisation.

Filing Fees & DepositsLegal fees are required to be paid in full upon filing of the pleading or other application which initiates an action or proceeding. If the fees are not paid, the court may refuse to proceed, or it may dismiss the action or the proceeding. The amount to be paid is determined by the nature of the case and is prescribed and regulated by the Philippine Supreme Court. For example, the filing fees with the Supreme Court, the Court of Appeals and the Sandiganbayan (a special anti-graft court) for each action or proceeding usually range from PhP 4,000.00 to PhP 6,000.00 (around USD 93.00 to USD 140.00). However, in the case of the Regional Trial Courts and the Court of Tax Appeals, the amount of legal fees will be based on the total sum (or tax refund) claimed and/or the fair market value of the real or personal property in litigation pursuant to a schedule of fees and other assessments.

Default & Summary Judgment OptionsIf the defending party fails to answer within the time allowed by the Rules of Court, the court may, upon motion of the claiming party, declare the defending party in default. The party declared in default may file a motion to set aside the order of default by showing that the failure to answer was due to fraud, accident, mistake or excusable negligence, and that he has a meritorious defence.

A judgment by default may also be rendered in the following cases: a) if a party refuses to obey an order requiring him to comply with the various modes of discovery; and b) if a party wilfully fails to appear before the officer who is to take his deposition.

A judgment on the pleadings may be rendered by the court where the answer filed by the defendant fails to tender an issue, or admits the material allegations of the adverse party’s pleading. A summary or accelerated judgment may be rendered where the court finds that there is no genuine issue as to any material fact except with regard to the amount of damages subject of the case.

Length of the ProcessThe length of the court process is dependent on the nature of the case and the cooperation of the parties. However, due to clogged dockets, proceedings in the trial courts alone may take around one to three years.

DiscoveryThe Rules of Court allow the following modes of discovery: a) depositions pending an action; b) depositions before an action or pending an appeal; c) written interrogatories to parties; d) requests for admission by an adverse party; e) production or inspection of documents and things; and f) physical and mental examination of persons. Within the Philippines, a deposition may be taken before a judge, a notary public, or if the parties to the case stipulate so in writing, any person authorised to administer oaths.

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Common Forms of ReliefCommon forms of relief which Philippine courts may grant include orders for: a) specific performance, b) payment of sum of money, c) payment of damages, d) injunction, e) declaratory relief, f) attachment or levy of property, g) replevin, h) guardianship or receivership, i) certiorari, j) prohibition, and k) mandamus, among others.

Enforcement of Foreign AwardsGenerally, a foreign judgment may be recognised and enforced in the Philippines if it constitutes a final adjudication on a civil or commercial subject matter, issued by an impartial court or agency of competent jurisdiction, is not inconsistent with the country’s fundamental principles or public policy, and is not tainted with collusion or fraud. A foreign judgment is generally presumed to be valid and binding until the contrary is shown. In this connection, a noted commentator has opined that the basis for such recognition and enforcement is the doctrine of res judicata, and not reciprocity (Salonga, Private International Law, 1995 ed., p. 542).

On the other hand, the recognition and enforcement of foreign arbitral awards are governed by the 1958 New York Convention (which the Philippines ratified on 6 July 1976) and the Special Rules of Court on Alternative Dispute Resolution (Special Rules on ADR). A Philippine court may, upon grounds of comity and reciprocity, recognise and enforce a foreign arbitral award made in a country that is not a signatory to the New York Convention as if it were a Convention Award. If that country does not extend comity and reciprocity to awards made in the Philippines, the court may nevertheless treat such award as a foreign judgment enforceable as such under the Rules of Court.

Alternative Dispute ResolutionEfforts to promote the advantages of arbitration as an alternative dispute resolution process have increased substantially in recent years, especially since the Alternative Dispute Resolution Act of 2004 (the ADR Act), was passed declaring it the policy of the State to actively promote party autonomy in the resolution of disputes. In 2009, the Supreme Court adopted the Special Rules on ADR to help encourage and promote the use of ADR “with the greatest cooperation and least intervention from the courts”.

The ADR Act seeks to encourage and promote an “Alternative Dispute Resolution System” which refers to any process or procedure used to resolve a dispute or controversy, other than by adjudication of a presiding judge of a court or an officer of a government agency, in which a neutral third party participates to assist in the resolution of issues, which includes arbitration, mediation, conciliation, early neutral evaluation, mini-trial, or any combination thereof.

The ADR Act also provides that international commercial arbitration is governed primarily by the 1985 UNCITRAL Model Law. Domestic commercial arbitration is governed primarily by the Philippine Arbitration Law (1953). Pursuant to the ADR Act, certain provisions of the UNCITRAL Model Law were expressly made applicable to domestic arbitration. Arbitration of construction disputes continues to be governed primarily by the Construction Industry Arbitration Law.

A domestic arbitral award, when confirmed by a Philippine court, shall be enforced in the same manner as any final and executory decisions of a trial court.







CostsCosts of a lawsuit shall be allowed to the prevailing party as a matter of course, but the court is allowed, for special reasons, to adjudge that either party shall pay the costs of an action, or that the same be divided, as may be equitable. Generally, no costs shall be allowed against the government, unless otherwise provided by law.

The court may also impose double or treble costs on the plaintiff or appellant where an action or appeal is found to be frivolous.

prepared by

Rodelle B. BolantePartner SyCip Salazar Hernandez & Gatmaitan

T: +632 982 3500

F: +632 817 3896


prepared by

Marianne M. MiguelPartner SyCip Salazar Hernandez & Gatmaitan

T: +632 982 3500

F: +632 817 3896


prepared by

Russel L. RodriguezSenior Associate SyCip Salazar Hernandez & Gatmaitan

T: +632 982 3600

F: +632 817 3567


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Singapore

OverviewAs an ex-British colony (becoming self-governing in 1959 and gaining full independence from Malaysia in 1965) Singapore’s legal system is based very much on the English legal system. Singapore inherited English common law, characterised by the doctrine of judicial precedent.

The court system has two tiers, consisting of the subordinate courts (the Family, Coroner’s, Juvenile and Community Courts, together with the Small Claims Tribunal) and the Supreme Court, consisting of the High Court and the Court of Appeal.

Generally, except for probate matters, a civil case must be commenced in the High Court if the value of the claim is in excess of SGD 250,000 (approximately USD 205,000).

In 1993, Singapore abolished all appeals to the English Privy Council and a permanent Court of Appeal, presided over by the Chief Justice and two Justices of Appeal, was designated as Singapore’s highest court.

Also in 1993, the Application of English Law Act came into force and specified the extent to which English law is applicable in Singapore. The Act provides that the common law of England shall continue to be in force in Singapore as long as it is applicable to the circumstances of Singapore and is subject to such modifications as those circumstances may require.

The court process is adversarial and is governed by Rules of Court which are made in accordance with the provisions of the Supreme Court of Judicature Act. The Singapore Rules of Court have their roots in the former English Rules of the Supreme Court. The Supreme Court has also recently launched electronic Rules of Court (“e-ROC”), a technological innovation which is designed to provide greater convenience to court users.

Litigation FundingSingapore lawyers are not permitted to charge contingency fees under the Legal Profession Act. The Singapore Legal Aid Bureau was established under the Legal Aid and Advice Act for the purpose of providing legal advice and legal services in civil matters for those that qualify. Third parties are not permitted to fund the cost of litigation on behalf of a claimant.

Class ActionsClass actions of the nature and extent found in the United States of America are not permitted in Singapore. The only form of group litigation recognised by the Singapore Rules of Court is the “Representative Action”, where “numerous persons” can demonstrate that they have “the same interest” in the proceedings. Legislation may also provide for representative proceedings in specific instances, for example, the Building Maintenance and Strata Management Act, which enables a building management corporation to bring or defend proceedings on behalf of the proprietors of a building.

Foreign LitigantsForeign litigants may commence legal proceedings in the Singapore courts as long as they can establish the requisite connection with the Singapore legal jurisdiction. A foreign party bringing proceedings in Singapore will be subject to the principles of forum non conveniens.

Filing Fees and DepositsFees are payable when documents are filed with the court which are modest in amount. Additional fees are also separately charged for certain services such as for sealing documents, providing copies of documents and for the use of the court for any







hearing which exceeds 3 days in duration. Deposits may also be required for security for costs ordered against a foreign litigant or in respect of undertakings in damages.

Default and Summary Judgment OptionsDefault judgments may be entered in respect of claims where there has been a failure by a defendant to enter an appearance (by filing a Memorandum of Appearance) or to serve a defence within the prescribed time limits. This may be a final judgment or an interlocutory judgment, depending on the nature of the claim. If the defendant has entered an appearance and filed a defence, but it is clear that there is no substantive defence to the claim, the plaintiff may apply to court for summary judgment. Any such application can be defended if the defendant establishes that the dispute involves a “triable issue” or that there is some other reason why a trial should be held. A successful application for summary judgment can result in judgment being obtained within a few months of the commencement of the proceedings, depending on the length of the hearing required to hear the summary judgment application and the complexity of the issues involved.

A strike out application may also be made to the court if no reasonable cause of action or defence is disclosed in the pleadings filed, is “scandalous, frivolous or vexatious” or tends to “prejudice, embarrass or delay the fair trial of the action and/or is otherwise an abuse of the process of the court”.

Length of the ProcessThe Singapore courts are renowned for their efficiency in dealing with their case load through proactive judicial case management. The Singapore courts have a disposal rate of around 85% of all actions commenced by Writ of Summons within 18 months of filing. Further time may, however, be required to dispose of more complex commercial disputes. The Singapore courts are also seeking to

make the overall litigation process more efficient by the use of technology including a system for electronic filing of documents and the recent adoption of the Electronic Litigation System.

DiscoveryThe Singapore Rules of Court provide for the discovery of documents which are relevant to the issues pleaded in the case which are in the “possession, custody or power” of the opposing party. If one party believes that inadequate discovery has been provided, it may make the appropriate application to the court for the “specific discovery” of relevant documents.

A Practice Note has also been produced which contains an “opt-in” system in respect of “e-discovery” which provides technical guidance for the court to order appropriate and cost effective measures for the search and production of electronic documents.

Common Forms of ReliefCommon types of relief sought in the Singapore courts include:

• Interlocutory and permanent injunctions (including mandatory and prohibitory injunctions).

• Mareva injunctions (designed to prevent parties from taking steps to deliberately frustrate the orders of the court by dissipating assets either locally or world wide).

• Anton Piller Orders (for the search, seizure and retention of documents or other items).

• Orders for Specific Performance.

• Awards for liquidated (or fixed amount) damages.

Punitive or exemplary damages are less common types of damages awarded by the Singapore courts. Interest is, however, typically awarded on judgment debts.

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The enforcement of judgments may be undertaken by various methods including:

• Writs of execution (including for seizure and sale, delivery and distress)

• Garnishee proceedings

• Presentation of bankruptcy or winding up petitions

Enforcement of Foreign AwardsForeign judgments can be enforced in Singapore either by registration under the Reciprocal Enforcement of Commonwealth Judgments Act (RECJA) or the Reciprocal Enforcement of Foreign Judgments Act (REFJA) or by suing on the judgment under common law.

RECJA provides for the reciprocal enforcement of judgments from the UK, Australia, New Zealand, Sri Lanka, Malaysia, Windward Islands, Pakistan, Brunei, Darussalam, Papua New Guinea and India. Once registered, a foreign judgment may be executed in Singapore as if it were a local judgment.

As only the Hong Kong SAR (HKSAR) has been Gazetted under REFJA to date, only judgments obtained in the HKSAR can be registered and enforced in Singapore. Judgments from other countries can only be enforced by commencing an action by writ in the Singapore High Court which, ordinarily is followed by an application for summary judgment which, if successful, can be enforced.

Singapore acceded to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1986 and a foreign arbitral award made in a New York Convention Country may be enforced in Singapore with the leave of the High Court. The Singapore Judiciary has consistently

demonstrated a pro-enforcement stance in interpreting and implementing the New York Convention.

Alternative Dispute ResolutionSingapore has successfully established itself as one of the most important centres for the resolution of disputes by means of arbitration. The Singapore International Arbitration Centre (SIAC) was established in 1991 and is now regarded as one of the premier arbitration centres in the world. SIAC provides a neutral, efficient and reliable dispute resolution service and is strongly supported by the Singapore Government which wishes to establish Singapore as the arbitration centre of choice in Asia and as a one stop business centre.

The development of Singapore as an arbitration centre has been assisted by the opening of Maxwell Chambers in 2009 which is an integrated dispute resolution complex and which provides state of the art facilities with hearing rooms, translation facilities and other infrastructure to support the efficient conduct of dispute resolution hearings and meetings in Singapore.

Singapore has become the venue of choice for the arbitration of disputes in commercial transactions in Indonesia, Vietnam and India and SIAC has a world wide panel of experienced and independent arbitrators.

The Singapore Mediation Centre (SMC) was also created in 1997 and the Singapore Judiciary is very supportive of Alternative Dispute Resolution initiatives in settling disputes, even within litigation proceedings, which is reflected in the Singapore Rules of Court.







CostsThe Singapore courts ordinarily apply the rule that “costs follow the event” and the costs of an action are usually awarded to the successful litigant, payable by the unsuccessful party. This may include lawyer’s fees, expert’s fees and other disbursements. An order for costs is, however, within the discretion of the court and may take the form either of fixed costs or “taxed” costs (i.e., determined by the court).

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Taiwan

OverviewTaiwan is a civil law jurisdiction that has been influenced by German, Swiss and Japanese laws since the late Qing Dynasty. But in the past two decades, legal schemes from the United States and other common law jurisdictions have had an increasing influence on Taiwan’s legal reform, particularly in the areas of business law and civil procedure.

As a civil law jurisdiction, Taiwan utilises a dual system of litigation. Civil cases are heard by the ordinary courts while administrative cases are heard in the administrative courts. The Intellectual Property Court was only established recently in 2008, designed to exclusively preside over IP-related cases in civil, criminal and administrative matters at first and second instance.

Taiwan does not have a jury system. The task of identifying the facts and interpreting the law is borne by professional judges.

Litigation FundingAttorneys in Taiwan may charge their clients on an hourly basis or a fixed fee basis. Contingency fee arrangements are prohibited for criminal matters, family law cases, and cases involving juveniles and children.

Class ActionsIn recent years, Taiwan has been making reforms to strengthen its class action proceedings, notably in the areas of product liability and protection of securities and future investors. Nevertheless, the number of class action cases is insignificant compared to the United States due to insufficient incentives for plaintiffs and attorneys.

Foreign LitigantsForeign litigants, with or without domiciles or offices in Taiwan, may have access to the courts of Taiwan as long as (i) the defendant is a Taiwan resident or

has its principal office in Taiwan; or (ii) the matter has a special connection with the jurisdiction of Taiwan.

Further, foreign litigants without a domicile or principal office in Taiwan may be required to provide security for the court expenses unless, for instance, his/her assets in Taiwan are sufficient to cover the litigation expenses.

Filing Fees & DepositsCourt fees shall be paid in advance of filing a lawsuit or appealing a judgment. Court fees are calculated on a progressive rate and the fees for second and third instances are roughly 50% higher than that of the first instance. To illustrate, in a case claiming damages of NTD 10,000,000 (approximately USD 350,000), the court fee is NTD 100,000 (approximately USD 3,500) for first instance and NTD 150,000 (approximately USD 5,250) for each higher instance, while in a case where NTD 100,000,000 (approximately USD 3,500,000) is sought, the plaintiff shall pay NTD 892,000 (approximately USD 31,000) to the District Court and the appellant shall pay NTD 1,338,000 (approximately USD 46,500) to the High Court and the Supreme Court respectively.

Further, as the courts in Taiwan encourage resolution of disputes outside the court system, the court will return two-thirds of the court fees to the plaintiff or appellant if the case is withdrawn or settled.

Default & Summary Judgment OptionsWhile the Taiwan Code of Civil Procedure permits a party to make a motion for an interlocutory judgment if the claims and defence for such issue has been sufficiently presented for the judge to make a decision, there is no mechanism in Taiwan similar to summary judgments in other jurisdictions where a judgment may be made as to the merits of an entire case prior to the completion of trial.












The courts in Taiwan may render a default judgment where it finds that the facts and evidences are sufficient to make such a decision if a party is absent in a hearing despite having been properly served with a notice.

Length of the ProcessThere are three levels of court, or “instances”, for civil matters, with District Courts being the courts of first instance, and High Courts representing the courts of second instance. In order to appeal to the Supreme Court, i.e., the third instance, the value of proprietary rights sought must be more than NTD 1,500,000 (approximately USD 52,500).

The length of civil cases varies depending on the complexity of the cases; however, generally, each instance of a civil case generally lasts for 9 to 18 months. Since the Supreme Court, in certain circumstances, such as where the High Court makes an error in its application of law, may revoke the High Court’s judgment and remand the case for further action, it may be several years before the parties to a civil case may obtain a final judgment.

DiscoveryUnlike the discovery procedures in other jurisdictions, discovery in Taiwan is exclusively conducted before the judge hearing the matter. A party seeking to obtain evidence held by the other party is required to clearly specify in a hearing what the evidence is and make a motion to demand submission thereof.

However, under certain circumstances, plaintiffs are allowed to secure evidence before a suit is formally filed, if there is a potential that evidence will be destroyed or that its future presentation in court would be difficult.

Common Forms of ReliefPlaintiffs in civil cases in Taiwan may be awarded the following:

• Specific performance

• Damages (interest may also be awarded at a statutory interest rate of 5% or such other rate contractually stipulated by the parties);

• Declaration of legal relationship

• Alteration of a legal relationship or status.

Moreover, to secure enforcement of a judgment after a lawsuit, the plaintiff can, during or before the lawsuit, make a motion for provisional seizure to seize the disputed object or for a provisional disposition to prohibit the disposition of the disputed object. The plaintiff will generally be required to provide security in the amount of one-third of the claimable amount for a provisional seizure and the full amount of the interest or damage potentially caused for a provisional disposition.

Enforcement of Foreign AwardsForeign judgments and foreign arbitral awards may be enforced in Taiwan. The difference between the enforcement of foreign judgments and foreign arbitral awards is the recognition process. Generally, the time required for obtaining recognition of foreign arbitral awards is less than the time needed for having foreign judgments recognised since the recognition of foreign judgment is subject to court trial, which includes the aforementioned three instances.

For the recognition of foreign judgments, the judgment must be final and binding and the Taiwan court must recognise the judgment if the following requirements are met:

(a) The foreign court rendering the judgment has jurisdiction over the dispute in question according to the laws of Taiwan;

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(b) If a default judgment is rendered against the parent guarantor, the notice or summons of the initiation of action had been legally served in a reasonable time in the foreign country or had been served through judicial assistance provided under the laws of Taiwan;

(c) The litigation proceedings and the content of the foreign judgment is not contrary to public order or the good morals of Taiwan; and

(d) Judgments given by Taiwan courts are reciprocally recognised by the foreign country concerned.

For the recognition of a foreign arbitral award, the arbitral award also must be final and binding. Taiwan courts will usually grant rulings based on a review of the recognition application; however, judges may at their discretion call a hearing if it is determined that the issues in the case are overly complex.

Taiwan courts are required to dismiss the plea for recognition of a foreign arbitral award if:

(a) The recognition or enforcement of the arbitral award will run counter to public order or the good morals of Taiwan; or

(b) The dispute may not be arbitrated under the laws of Taiwan.

Further in certain circumstances, if a party applies for recognition of a foreign arbitral award, the respondent may request a dismissal of the application within twenty days from the date of receipt of the notice of the application. Examples of such circumstances include:

(a) Where the arbitration agreement is invalid as a result of the incapacity of a party according to the law chosen by the parties to govern the arbitration agreement;

(b) Where the arbitration agreement is null and void according to the law chosen to govern said agreement or, in the absence of choice of law, the law of the country where the arbitral award was made; and

(c) If a party is not given proper notice whether of the appointment of an arbitrator or of any other matter required in the arbitral proceedings, or any other situations which give rise to a lack of due process.

Once the final foreign judgment/arbitral award is recognised, to initiate an enforcement proceeding, an application for the enforcement of the recognised foreign judgment/arbitral award is to be submitted to the Civil Execution Department of the District Court and the applicant shall pay an execution fee of 0.8% of the claim.

Alternative Dispute ResolutionIn Taiwan, arbitration is commonly used to resolve certain types of disputes, such as construction matters. The length of arbitration is capped at nine months. Arbitral awards may not be appealed but, under certain circumstances set forth in the Arbitration Law, such as where the arbitration agreement between the disputed parties is invalid or the arbitral award violates the laws of Taiwan, Taiwan courts may nullify an arbitral award.

Another dispute resolution channel is mediation. Either party to a dispute may apply to the court for mediation before filing a lawsuit. In certain types of disputes, such as proprietary rights disputes with claims equivalent to or less than NTD 500,000 (approximately USD 17,500) or labour disputes, mediation will be compulsory before litigation procedure starts.







CostsGenerally, attorney’s fees are not claimable unless the fees are for cases where the parties are required by law to be represented by attorneys, such as civil matters before the Supreme Court, or the parties have contractually stipulated that attorney fees be awarded to a party. Other court expenses will be borne by the losing party of a lawsuit or apportioned between the parties in proportion to the result of the lawsuit.

prepared by

Sean LiuAssociateLee, Tsai & Partners

T: +886 2 2378 5780

F: +886 2 2378 5781


prepared by

Jaime ChengAssociate PartnerLee, Tsai & Partners

T: +886 2 2378 5780

F: +886 2 2378 5781


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Thailand

Overview Thailand operates a civil law system. The civil law system is enshrined in the Civil and Commercial, Civil Procedure, Criminal Procedure and Penal Codes all of which are updated periodically.

Another important pillar of Thai Law is the Constitution. The most recent version of the Constitution was issued in 2007. The 2007 Constitution was approved by public referendum and is aimed at promoting and protecting the individual rights and liberties of the people.

As Thailand operates a civil system of law, case precedent is not a binding source of law. That said, Supreme Court judgments can be relied on as being persuasive and influential, and provides a reasonable indication of how a Judge may seek to apply the law to particular issues.

Thailand operates a court system of general jurisdiction and other specialised Courts. The Civil Courts are divided into District Courts which entertain claims of value up to THB 300,000 (approximately USD 10,000) and Provincial Courts which hear claims of over THB 300,000 (approximately USD 10,000). The Thai court system is administered by an independent judiciary. The Appeals Court hears appeals from Civil Courts and is also subject to a final judgment by the Supreme Court, Thailand’s highest level of court.

Thailand operates certain specialised Courts, including (i) Administrative Court; (ii) Bankruptcy Court; (iii) Labour Court; (iv) the Intellectual Property and International Trade Court; (v) Tax Court; (vi) Constitution Court and (vii) the Juvenile and Family Court.

Except for the Juvenile and Family Courts, the judgment of the specialised Courts can be “leap frogged” and appealed directly to the Supreme Court. The Supreme Administrative Court hears

appeals from the Administrative Court which generally deals with issues relating to administrative disputes.

Litigation FundingConditional fee arrangements, or contingency fees are generally considered to be unethical in Thailand, however there are some Supreme Court judgments that have enforced contingency fee arrangements in some circumstances. Contradictorily, there are also Supreme Court judgments which have struck out contingency fee arrangements as being unenforceable.

Class ActionsUnder the Civil Procedure Code there is some provision for bringing multi party proceedings in Thailand by making an application to join a third party to the case, in circumstances where a defendant can show that he or she has a right to sue the third party, or to be sued by that third party. Additionally, a third party can apply to be joined to proceedings as a party to acknowledge, protect or enforce rights or if he or she has a legal interest in the outcome of the case. It is also possible for cases to be consolidated, provided that the trial of each case will be facilitated if they are heard together. A Court must be satisfied that there is a sufficient connection before an application for consolidation can be made by any party, or the court can make an order of its own accord.

Foreign LitigantsForeign Litigants may participate in Thai Court proceedings to resolve their dispute. Choice of jurisdiction clauses are not enforceable in Thailand, and where a clause provides that the parties have submitted to the exclusive jurisdiction of the court of another country a Thai Court will not enforce that clause and will assume jurisdiction, provided that it has jurisdiction in accordance with the Civil Procedure Code.







As a practical matter foreign litigants should be aware of the highly “technical” nature of Thai Civil Procedure. For example, before commencing proceedings a lawyer acting on behalf of a client in Thai proceedings must first present to the Court a power of attorney authorising him/her to act. Equally, there has been recent criticism of parties taking irrelevant, and even underhanded action, to gain a perceived technical advantage e.g., reporting a foreign litigant to the Immigration Department.

Filing Fees and DepositsA prospective plaintiff lodging a Complaint at Court is required to deposit a fee equivalent to 2% of the anticipated claim, up to a maximum of THB 200,000 (approximately USD 6,600), should the claim not exceed THB 15,000,000 (approximately USD 503,200). For a claim exceeding THB 15,000,000 (approximately USD 503,200) the filing fee is THB 200,000 (approximately USD 6,600) plus 0.1% of the value of the claim exceeding THB 15,000,000 (approximately USD 503,200).

Security for costs are available where the plaintiff is not domiciled in Thailand or does not have an address for service in Thailand or has no assets in Thailand, or there is a strong reason to believe that the plaintiff will avoid payment of costs and expenses should it not be successful at trial.

Default & Summary Judgment OptionsThe Court in Thailand does have power to strike out part or entire Statements of Case either on the application of one of the parties or on its own accord. The court has wide powers to dispose of the whole case or particular material issues in the case without conducting any hearings. A Court may also discontinue proceedings if the plaintiff abandons the case by failing to submit to a request for a summons or by failing to take any action as required by the Court within the prescribed time limit. A Court may

also stay proceedings if one of the parties dies pending substitution by the party’s heir.

Length of the ProcessCases in Thailand are subject to the Civil Procedure Code and the time limits are set out in that Code. Generally, Civil Court litigation moves relatively slowly and the length of time is largely dependent on the workload of the particular Court which has jurisdiction over the dispute. Service of proceedings by a plaintiff and Answer by a defendant generally takes about two months, however, Courts frequently grant extensions of the time for filing Answers on application. Once pleadings have been closed the Court will schedule an administrative hearing to set out the issues and dispute and make an Order for Directions. This is known as a Settlement of Issues hearing. At this point, the Court usually encourages the parties to mediate and may schedule one or more mediation meetings.

Generally, the overall length of time from the lodging of a Complaint through to a judgment takes about 12 to 18 months. However this time period can be lengthened dramatically through the granting of several extensions of time and it is almost certain that any proceedings will be delayed from the schedule set out in the original Order for Directions.

Discovery There is no formal disclosure procedure. Parties simply submit the documents on which they wish to rely on to prove their case 7 days before the first hearing. There is no obligation on parties to disclose documents which will adversely affect their case. It is possible for a party to apply to the Court to request production or disclosure of documents in possession of an opposing party or third party. Courts generally do not support speculative applications and any application for discovery must be specific and is usually only successful against documents which the parties have already seen and know of their existence.

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Common Forms of ReliefThe following types of awards or orders are often made in Thai proceedings:–

• Temporary attachment orders

• Restraining orders

• Damages awards

• Emergency/Temporary injunctions

• Performance of an obligation

The Courts can also make an order for damages in respect of actual damages, i.e., these damages must be proven. The Courts are empowered to award punitive damages but rarely do so in practice.

There is no distinction between liquidated damages and penalties under Thai Law. Even if the sum of liquidated damages exceeds any genuine pre-estimate of loss, a party may be required to make payment in full regardless of whether or not the loss was actually incurred. If the sum is disproportionately high, a judge has the discretion to order payment of a reasonable amount.

A Court can order interest on money judgment running from the date of its order to payment at an agreed contractual rate or in the absence of any such rate, make an award at fixed published rates (currently at 7.5%).

Enforcement of Foreign AwardsThailand is not currently a signatory of any reciprocal enforcement treaties of foreign court judgments and the Thai Courts do not enforce foreign judgments. Should a foreign litigant wish to enforce a judgment against a Thai party it will have to commence fresh proceedings in the Thai Courts and a full trial will be required.

For arbitral awards, Thailand is a signatory to the New York Convention and the Courts are generally supportive of applications for leave to enforce in award.

Alternative Dispute ResolutionArbitration in Thailand is governed by the Thai Arbitration Act 2002 (the “2002 Act”). There are two arbitration institutes in Thailand : i) the Thai Arbitration Institute of the Alternative Dispute Resolution Office, Office of the Judiciary and ii) the Thai Commercial Arbitration Institute of the Board of Trade. The 2002 Act incorporates most of the UNCITRAL model law.

The major differences between the 2002 Act and the UNCITRAL model law are set out below:

i) Neither the rules nor the 2002 Act allow the tribunal to make awards for interim measures of protection. The 2002 Act requires that parties wishing to take provisional measures during the arbitration must do so by making the appropriate application at the competent Court.

ii) Arbitrators are exempted from liability in performance of their duties except where they act wilfully or with gross negligence which causes damage to either party. Section 23 of the 2002 Act also imposes fines of up to THB 100,000 (approximately USD 3,300) or imprisonment (or both) in respect of corruption or bribery.

iii) Where the governing law is not provided for, the 2002 Act provides that the dispute will be settled in accordance with Thai Law.

Although agreements to arbitrate are increasingly common in commercial contracts, following several high profile arbitrations involving Thai government organisations, the Cabinet passed a resolution requiring Cabinet approval for the use of arbitration clauses in contracts involving any Thai government entity. Further, family, labour and certain IP disputes cannot be referred to arbitration on the basis that it is contrary to public policy.

Mediation is a common method of alternative dispute resolution in both Thai Court proceedings and arbitration proceedings.







Costs In Civil Court proceedings, costs are at the discretion of a judge. While a judge has a general discretion to order that costs “follow the event” large awards are not common and costs awards usually represent only a fraction of the actual costs incurred. It is therefore likely that most litigants will not have any true exposure in respect of the other side’s legal costs.

In arbitration proceedings the fees and expenses, as well as the arbitrators’ remuneration will be set out in the award. However the 2002 Act provides that a party’s legal costs are not recoverable unless agreed. It is therefore advisable to provide for the recovery of legal fees in any agreement to arbitrate.

prepared by

Maythawee SarathaiRegistered Foreign Lawyer (Thailand)Mayer Brown JSM (Thailand) Limited

T: +66 2 108 8564

F: +66 2 108 1555


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OverviewVietnam’s legal system is influenced by Chinese legal traditions, French, United States and former Soviet-style legal systems. The Vietnamese legal system evolved over more than a century of French colonial rule (from about 1862 to 1954) and the hierarchy of statutory laws in Vietnam mirrors that used in the French legal hierarchy. Since 1986, Vietnam has pursued a policy of renovation to gradually change from a centrally planned command economy to a market economy and has consolidated legal instruments to facilitate the economic institution reforms.

The Supreme People’s Court of Vietnam (“SPC”) is the highest court of appeal in Vietnam. The SPC is directly accountable to the National Assembly of Vietnam, which controls the judiciary’s budget and confirms the president’s nominees to the SPC and the Supreme People’s Procuracy of Vietnam. The Supreme People’s Procuracy takes the role of a prosecutor which is also accountable to the National Assembly.

The SPC, the local People’s Courts, the Military Tribunals and other tribunals provided by the law are the judicial bodies of Vietnam. The SPC oversees the proceedings of local People’s Courts, Military Tribunals and other special courts. The provincial People’s Court is at the intermediate level of the court system and has the power to hear cases at first instance or to hear appeal cases and to review judgments from the district People’s Court. The district People’s Court is the lowest level of the court system and has the power to hear cases at the first instance only. The court process is interrogational and certain reforms have been introduced in recent years to increase the public’s access to justice and to bring efficiency to the judicial process. The Military Tribunals are organised within Vietnam People’s Army to adjudicate cases with army personnel as defendants. Military judges and assessors are selected by the Ministry of Defense (MOD) and the

Vietnam

SPC. The People’s Procuracies exercise the right to prosecute and to supervise judicial activities according to the Constitution and the laws of Vietnam. The People’s Procuracies system consists of the Supreme People’s Procuracy, the local People’s Procuracies and Military Procuracies. Civil procedures in Vietnam are primarily governed by the Civil Proceedings Code No. 24/2004/QH11 (“Civil Proceedings Code”), promulgated by the National Assembly on 15 June 2004 (which took effect from 1 January 2005).

Litigation FundingLitigation funding arrangements are not permitted in Vietnam. It is illegal for a third party to fund another party’s claim in exchange for a share of any damages later awarded to such claimant. An act of litigation funding may be subject to prosecution under the criminal law of Vietnam.

Class ActionsA class action in which a large group of people collectively bring a claim to court is allowed in Vietnam. Traditionally, class action cases in Vietnam are usually brought in relation to labour matters, but more recently they have been brought in respect of a wider range of legal disputes that involve a large number of plaintiffs.

Foreign LitigantsForeign litigants have the right to initiate a legal action to petition a Vietnamese court to protect their lawful rights and interests when they are infringed or are in dispute subject to certain requirements under Vietnamese law.

Filing Fees & DepositsUnder Vietnamese law, a plaintiff and a defendant counterclaiming against a plaintiff must pay a court fee deposit for first instance hearing and a person who lodges an appeal must pay a court fee deposit for the appeal hearing. Court fees, rates of court fees







applicable to each specific type of case, types of charges and the specific rates of charges will be determined according to the Civil Proceedings Code or otherwise provided by the Standing Committee of the National Assembly. Normally, the court fee will be calculated with reference to the size of the claim. Additional deposits may be required as security for other costs or where potential damages are likely.

Default & Summary Judgment OptionsIf the defendant fails to submit his or her opinion in writing opposing the claim and the relevant documents or evidence within the specified time limit or is absent from the trial after being properly summoned twice, the Vietnamese court has the right to conduct the trial in the absence of the defendant and decide the case. In certain cases the Court may enter a summary judgment order (on application by the opposing party) when there is no arguable defence or when a defence proffered is considered to lack merit.

Length of the ProcessThe time-limits for preparing a case are set out in the Civil Proceedings Code.

If the litigating parties cannot reach a settlement at the conciliation meetings arranged by the courts, the Civil Proceedings Code provides that the hearing must commence within two to four months from the date on which the court accepts the case. However, for cases of a complex nature or due to an objectively valid reason, the chief justice of the court may decide to extend the time-limit for trial preparation by another two months.

If the court determines the matters in dispute are of an economic or labour nature, then a hearing must commence within two to three months from the date on which the court accepts the case. However, Vietnam has multiple levels of hearings. Therefore,

hearings for complex commercial disputes can take much longer (from 6 years up to 10 years in extreme cases), especially where one of the parties is motivated to take advantage of the court process (including the appeal process) to delay the final determination.

DiscoveryProvision of evidence is both the right and obligation of the parties in a case. A claimant must provide evidence to substantiate that there are grounds for his or her petition and that the petition is lawful. Similarly, the respondent must produce evidence to substantiate grounds of his challenge of the claimant’s petition, if any.

The court may collect evidence as required by the parties in the following manner:

• Taking a statement of evidence from a party, if such party is unable to write;

• Taking testimonies of witness(es);

• Cross-examination of parties or witness(es);

• On-the-spot inspection and evaluation;

• Seeking opinion of expert(s);

• Valuation of assets;

• Delegation to collect evidence; and

• Requesting individuals, bodies and organisations to provide evidence.

Furthermore, the court may employ similar methods to collect evidence by itself without the request of any party, when it deems that:

• Taking testimonies of witness(es) is necessary;

• Cross-examination is required to justify inconsistency of testimonies; and

• Valuation of assets has been reduced by the parties for the purpose of tax evasion or reduction of court fees.

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Common Forms of ReliefThe following types of awards are often made in Vietnamese proceedings:

• Injunctive relief;


• An award for liquidated damages

In order to obtain a court decision on injunctive relief, a request for application for injunctive relief must be filed together with evidence or supporting documents. The applicant, in almost all of the cases, must deposit a sum of money, precious metals, gemstones or valuable papers which are required by the court. The deposit must be equivalent to the property obligation to be performed by the obligor which is aimed at protecting the legal rights and interests of the person who is subject to the injunctive relief and preventing any abuse of the right to request for the application of injunctive relief measures by the applicant.

Enforcement of Foreign AwardsGenerally, foreign judgments are not enforceable in Vietnam. Under the Civil Proceedings Code, Vietnamese courts will only consider the recognition of judgments issued by courts in countries that have entered into a judicial agreement with Vietnam or on reciprocal basis. To date, most of the countries that have entered into a judicial agreement with Vietnam are socialist regimes. With regard to countries that have not signed a judicial agreement with Vietnam, the recognition of the judgments issued by the courts in those countries may be considered for recognition on a reciprocal basis. However, in practice, few judgments issued by courts in foreign countries have been recognised by the courts of Vietnam.

The Civil Proceedings Code sets out guidelines on the recognition and enforcement of foreign arbitral awards in Vietnam. Vietnam has been a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards since 28

July 1995. It should be noted that enforceability is often an issue with foreign arbitral awards because the awards must not be contrary to the fundamental principles of Vietnamese law. According to some published Vietnamese court opinions, any violation of Vietnamese law could be construed as being as against the fundamental principles of Vietnamese law. This means Vietnamese courts may be given a second chance to review a decided arbitral award which may frustrate the party seeking to enforce such award.

Alternative Dispute ResolutionVietnamese laws recognise conciliation between the parties with or without a selected mediator and arbitration as alternative dispute resolution.

Vietnamese laws encourage disputing parties to arrange conciliation by themselves or at the grassroots level. Generally, conciliation at the grassroots level is an informal dispute resolution mechanism which can be mandatory or voluntary before legal proceedings. A conciliation decision is not binding and the parties still have the right to bring the matter before the court. The main purpose of conciliation is to guide, assist and persuade the parties to reach an agreement and to voluntarily settle the disputes. With respect to certain labour disputes and land disputes, conciliation must be carried out as required by law before the parties can bring their dispute to court.

Dispute settlement through arbitration is not common in Vietnam and is governed by the Law on Commercial Arbitration. At present, Vietnam International Arbitration Centre (“VIAC”) is the most popular arbitration centre in Vietnam. Its arbitrators are selected by itself. VIAC has jurisdiction over disputes arising from commercial activities and practices. The Rules of Arbitration of VIAC, effective as of 1 July 2004, apply to both domestic and international disputes.







CostsIn court proceedings costs typically ‘follow the event’ meaning that the successful party will be able to recover his costs from the unsuccessful party. These costs are often ordered by the court and usually reflect recovery of only the actual and direct costs incurred.

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AustraliaLevel 32, Governor Phillip Tower T : +61 2 9210 65001 Farrer Place F : +61 2 9210 6611Sydney NSW 2000 W : www.corrs.com.au Australia

Kim & Chang

KoreaSeyang Building, 1st Floor T : +82 2 3703 1114223 Naeja-dong, Jongno-gu F : +82 2 737 9091Seoul 110-720 W : www.kimchang.comKorea







Lee, Tsai & Partners

Taiwan9F, 218 Tun Hwa S Rd., Sec. 2 T: +886 2 2378 5780Taipei 106, Taiwan, R. O. C. F: +886 2 2378 5781 W: www.leetsai.com

Meer & Hasan

Pakistan1 Farid Kot Road T: +92 42 723 5812Lahore 54000 F: +92 42 723 4332 Pakistan W: www.meerhasan.com

Skrine

MalaysiaUnit No. 50-8-1, 8th Floor T: +603 2081 3999Wisma UOA Damansara F: +603 2094 321150, Jalan Dungun, Damansara Heights W: www.skrine.com50490 Kuala LumpurMalaysia

Soewito Suhardiman Eddymurthy Kardono (SSEK)

Indonesia14th Floor T: +62 21 521 2038Mayapada Tower F: +62 21 521 2039Jl. Jend. Sudirman Kav. 28 W: www.ssek.comJakarta 12920Indonesia

SyCip Salazar Hernandez & Gatmaitan

PhilippinesSyCip Law Center T: +632 982 3500 / 982 3600105 Paseo de Roxas F: +632 817 3896 / 817 3567Makati City, 1226 Metro Manila W: www.syciplaw.com Philippines

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