QUESTION ONE – What is your best practice approach when advising General Counsel, to ensure dispute resolution clauses are to their real advantage and do not obstruct enforcement proceedings?
In international contracts, it is necessary to involve lawyers from different jurisdictions to understand the pros and cons of litigating in each one of them. In addition, make sure that the dispute resolution clause is valid and enforceable in all countries. In general, it is always best to litigate where the evidence is expected to be. However, it is also necessary to consider other issues such as the greater or lesser speed of the courts, the ease and speed in the execution of the judgments, the quality of the judges, etc.
In general, in international contracts, our advice is to establish an arbitration clause to resolve possible disputes.
QUESTION TWO – Are there any particular rules around funding litigation in your jurisdiction that General Counsel should be aware of?
Litigation funding is perfectly legal in Spain, although it is not regulated by any specific rule. The doctrine considers that it resembles a participation account agreement. It is also possible, in our legal system, to assign a litigation claim to a third party in exchange for a price. Litigation funding agreements are growing rapidly in the Spanish legal market.
QUESTION THREE – What techniques are typically used by international counterparties in your experience when attempting to gain the initiative during a dispute? How important are civil procedural rules?
The way to win the initiative during litigation is to obtain an early injunction (i.e., before filing the lawsuit). But to do so, the request must be very clearly founded in law and to prove there is a risk that the length of the proceedings will jeopardise the execution of the future judgment.
If the party is sued and has a weak case, it will try to use strategies to delay the proceedings and make them more costly for the defendant. Unfortunately, Spanish courts, especially in capitals such as Madrid, are overburdened with cases and proceedings take too long to resolve. It is preferable to resort to arbitration whenever possible.
The mastery of civil procedural rules is very important, as it is a complex and very technical regulation. a lack of proper knowledge of procedural rules may lead to serious mistakes that jeopardise the case.
TOP TIPS FOR: Successful negotiations
Never make the first offer. Wait for the other party to make it.
Be patient. Whoever rushes or shows anxiety about reaching an agreement loses out.
If necessary, break off the negotiation. Sometimes this allows the other party to reflect and reach an agreement.
Keep calm and cool.
Strengths. Use the strengths of the case to weaken the position of the other party.
Weaknesses. Deny the weaknesses of the case itself even if they are true.
Coordination. To be in perfect coordination with the client and to know which his limit in the negotiation is.
Limits. Try to find out what the other party’s limit is in the negotiation.
Analysis. Analyse very well the content of the agreement. It is important to make sure that it is a definitive and non-revisable agreement.
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