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International Litigation

International Litigation

posted 2 years ago

RPC is a full-service international law firm with notable successes representing clients in their disputes, specifically litigation, arbitration and regulatory disputes. More than 250 of the firm’s lawyers undertake contentious work for clients in areas as broad as banking and financial markets, insurance, technology, IP, tax, media, retail and competition as well as restructuring and insolvency, to name but a few.


The firm is distinguished from its peers through a combination of complex, high-profile work, award-winning client service, financial risk sharing with clients and sector focus. On risk sharing, and reflecting the firm’s entrepreneurial approach to the legal market, RPC was an early adopter of litigation funding and creative fee arrangements, which continues to this day.


Global Law Experts asked Simon Hart, Partner and Head of Financial Disputes at RPC, if there are any particular clients who are more suited to litigation than any other forms of dispute resolution. He noted: “Litigation is more prevalent than arbitration in the banking and financial markets sector. Although there have been moves to introduce arbitration clauses into banking and financial markets standard form documentation, those have had a limited impact. This reflects the traditional desire of banks and financial institutions to see precedent-setting, public Court judgements delivered on matters pertaining to the financial sector – in order that there is the necessary degree of certainty to parties’ dealings.”


Litigation with a Global Scope


RPC’s cross-jurisdictional reach is significant, with locations in the UK (with a London headquarters), Hong Kong and Singapore. Mr Hart spoke about some of the advantages this provides. He said: “As three common law jurisdictions, there are very clear similarities in relation to how the legal systems operate, which allows a significant degree of cross-border coordination and understanding. Lawyers in each jurisdiction are familiar with the procedural mechanisms at play across all three legal systems, and this can help facilitate a more holistic approach to servicing clients. We work as one cross-border disputes team across the offices, often servicing the same client out of three jurisdictions in relation to substantively the same dispute. Our offices in Hong Kong and Singapore also act as a platform for access into the wider Asia-Pacific legal market and beyond. We use our lawyers in those offices to coordinate disputes, and particularly those subject to arbitration, which are focused in other Asian jurisdictions.”


Mr Hart went on to explain that most types of dispute have a time lag between the occurrence of the underlying events and the point in time at which disputes cross a lawyer’s desk. While the financial crisis-related litigation has now largely concluded, that whole period has, at least in so far as the UK market is concerned, reset the dial, and litigation is now much more of a “business as usual” issue. “We are beginning to see more disputes arising out of restructuring and insolvency matters,” he said, “where, for example, debt holders are maneuvering to ensure their positions are protected in the context of distressed companies and structures.”


After a ten-year period of global economic growth, RPC’s expectations are for economic pressures to begin to build and for there to be more of this work, certainly across Europe. According to Mr Hart, cross-border fraud is another continuing source of international disputes work. The firm has seen significant disputes, often litigated or arbitrated in London, arising out of dealings in a wide variety of locations, but most notably Russia, CIS and Africa.


Case Studies and Success Stories


Over the years, RPC has acted for a wide variety of clients, including hedge funds, HNW investors, financial institutions and insolvency office holders, often acting against the largest investment banks. Mr Hart told GLE that one of the main attractions of being a disputes lawyer is the ability to work with a huge range of clients across diverse sectors. He explained that almost everyone engages with the banking sector in one way or another, and so he has had the privilege of being instructed by a spectrum of clients who are very different in nature and expectations: “At present, I am working for a US-based distressed debt fund, an Indian-headquartered global industrial group, members of an ultra-high-net-worth European family, and a financial services payment processing company. What connects them all is that they have a dispute arising out of their respective involvement in the financial markets.”


The firm recently concluded a long-running piece of litigation for an investment fund, which acts as the holding company for a global portfolio of industrial companies. In this case, a New York-based hedge fund commenced proceedings against RPC’s client in several jurisdictions including England, seeking to enforce a significant New York judgement arising from a guarantee given by RPC’s client for a subsidiary’s loan facility.


RPC’s client contended that the New York judgement had been improperly obtained, and so the firm was instructed in England to resist jurisdiction and summary judgement, and thereafter to resist enforcement against its client’s assets in the jurisdiction while the New York judgement was challenged. “This involved working in coordination with the client’s lawyers in New York, the Cayman Islands, the BVI, Mauritius and the UAE, where related legal proceedings were being progressed concurrently – as well as with other financial institutions that had an interest in the outcome of the proceedings.”


Seamless Integration


The Legal 500 UK has stated that Mr Hart “[slots] in seamlessly to in-house teams when presenting advice to senior executives”. Mr Hart summarised this approach, explaining that disputes reach RPC at different stages. “Sometimes, initial skirmishing has been conducted by the in-house legal function, and the firm is instructed when it looks like the dispute is heading towards Court,” he said. “On occasion, the in-house team have got as far as taking the legal proceedings to the first hearing.”


More frequently, RPC are in at the start. “It is essential to recognise that you are often building on foundations laid by the in-house lawyers who instruct you,” added Mr Hart. “Working with in-house legal teams and recognising their unique commercial and cultural perspectives on the cross-border disputes that they are responsible for managing is essential. The ultimate commercial client wants a view from the collective legal team – not one view from external counsel and one view from the in-house lawyers.”


Changing Considerations


On the topic of cross-border disputes, he commented: “While individual countries will have particular issues which impact their own litigation landscape, the development that has had a massive impact across many jurisdictions, particularly those systems with a common law foundation, is the explosion in electronic data, including social media. In England, the Commercial Courts are piloting a scheme to manage and control the burdens of having to disclose electronic data in legal proceedings. Even those jurisdictions with much more restrictive disclosure regimes will have been impacted by the growth in the data that their clients hold and are required to review. As a result, as well as the Courts managing the documents put before them in litigation, technology has developed at great speed to respond to the challenges faced by lawyers in managing the data provided to them.


“For example, I led the case in the Commercial Courts which gave rise to the first ever judgement in England approving the use of predictive coding for the disclosure document review process. The deployment of artificial intelligence and such techniques to review, analyse and select documents in a sophisticated and reliable manner has been driven by the surge in client data. This is probably the most common theme when disputes lawyers are asked about trends that have impacted their practice.”


A Collaborative Approach


RPC is a founding member of the TerraLex network, and Mr Hart has personally contributed to the third edition of Banking Litigation, published by Sweet & Maxwell, and co-authored the England & Wales chapter of the 2019 ICLG Financial Services Disputes guide. As Mr Hart explained, these contributions are important as a means of engaging with the wider litigation community.


“When it comes to resourcing cross-jurisdictional work, the clients’ needs are always the primary driver” he said. “Maintaining the flexibility to instruct the right lawyers in the right jurisdictions for each particular client is key. To that end, our platform has a range of international options for our clients. First, in the UK, Hong Kong and Singapore, we have our own offering. Second, we are also founder members of the TerraLex network and have established connections with firms globally across a network which spans more than 100 countries. Third, for insurance disputes, we have a strategic alliance with a specific US law firm who specialises in that field. Fourth, we have strong relationships with many other independent law firms around the world who are best in class at what they do. This flexibility in approach gives us the opportunity to provide our legal services in a way that works for the client, rather than in a way that is merely convenient to the lawyers.”


He added: “Regarding our publications – writing about subject matter with which you have experience is intellectually interesting, but it’s also a means by which to engage with other lawyers, particularly those based overseas. One of the great privileges of being a disputes lawyer in an international practice is the ability to meet and work with lawyers in other jurisdictions and to hear about their experiences in parallel situations. Contributing to and sharing thoughts in legal publications are additional means of continuing that conversation.”

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