The Third Annual Conference on the Resolution of CIS-Related Disputes

Moscow, Russian Federation

September 12, 2011

Please make plans now to attend the Third Annual Conference on the Resolution of CIS-Related Disputes, which will be held in Moscow on September 12, 2011. You will receive more information from the ABA Section of International Law soon. The following is a preliminary summary of the Conference’s sessions.

PLENARY SESSION –

The Battle Against “Legal Nihilism”: Dispatches from the Frontlines

President Medvedev has called for an end to "legal nihilism," declaring that “we should take steps to help the courts gain their proper place in our system of values.” What are these steps? Are they working? How pervasive is judicial corruption in reality? How accurate are perceptions of the problem? As a practical matter, what can litigants do to protect themselves against suspected corruption, collusive litigation or fabrication of evidence? A panel of experienced Russian litigators and other experts will offer their perspectives on these issues and share hard-earned lessons on ensuring a fair hearing for their clients.

CONCURRENT SESSION #1 –

International Insolvency Proceedings in an Uncertain Financial World: Harmonizing the Rights and Obligations of Multinational Debtors and Creditors

Issues such as enforcement of bankruptcy judgments, liability of principals and priority of positions have been dealt with quite differently by courts in the U.S, England and Russia. In an age when international insolvency laws seek comity, divergent opinions from local courts interpreting the same agreements may have a significant impact on international commercial transactions and capital markets. The panel, comprised of leading judges and attorneys who have direct experience in these cases, will examine the issues created by contrary decisions being rendered by the courts of England and the United States, their interrelationship with developing Russian insolvency law and practice and their impact upon Russian investors, debtors and creditors who may participate in foreign bankruptcy proceedings or seek to enforce their rights in Russia.

Resolving Ethical and Professional Responsibility Dilemmas in International Disputes: A Primer for Russian Lawyers

International disputes often force Russian lawyers to face ethical rules imposed by western jurisdictions. While these rules are essential to maintaining the fairness and integrity of the adjudication proceedings, they may be unusual and difficult to comply with. To add to the confusion, it is far from clear which rules apply in multi-jurisdictional cases.

For instance, which country’s code of ethics should govern, say, a lawyer based in London and licensed to practice law in both New York and England, who is advocating before an arbitration tribunal seated in Moscow, where the arbitrators hale from Russia, England and Germany, opposing counsel is licensed in Germany, the substantive law governing the dispute is English, and one of the parties is Russian and the other is German? Would the advocates' conduct be governed by the rules of their respective home jurisdiction(s)? If so, is this fair? What if the professional rules of England, the U.S., and Germany differ with respect to such issues as preparing witnesses to testify, contacting employees of an adverse corporate party, bringing adverse legal authority to the attention of the tribunal, attorney-client privilege, ex parte communications with the tribunal, dealing with experts and other issues? Does this create an unlevel playing field? To what extent should the rules of the venue govern conduct? If there are no rules of conduct applied generally to all of the lawyers in the case, what implications does this have for the proceedings and the prospects for rendering proper justice?

The panel focuses on several real-life situations presented in a lively multimedia format with international experts addressing these and other ethical issues which increasingly arise in the world of cross-border dispute resolution.

CONCURRENT SESSION #2 –

Shareholder rights: Protecting Minorities and Joint Venture Partners

Effective protection of shareholder rights (particularly those of minority shareholders and joint venture partners) plays an essential role in attracting investment. Businesses today have an ever wider choice of where to invest and how to structure their investments. When exercising this choice a particularly important factor is the level of shareholder protection available in any given jurisdiction and under any particular structure or choice of law.

Russia has passed significant changes to its company law recently designed to increase the protection afforded to shareholders of Russian companies, including amendments in 2009 to its Federal Laws On Joint Stock Companies and On Limited Liability Companies which recognize shareholder agreements in those companies.

A panel of leading international experts will analyze the corporate climate in which businesses in Russia now operate and how this compares with other relevant jurisdictions, including England, Cyprus and The Netherlands.

The issues covered in this session will include the validity and scope of shareholder agreements; the right to participate in corporate decision making; the right to receive corporate information; the right to receive dividends; pre-emption rights; forced acquisitions and sales of shares; unfair prejudice claims; derivative actions and (in the Russian context) the impact of the Federal Law on Foreign Investment in Strategic Industries on the foregoing.

State and State Entities as Parties to Arbitration

States and state-owned enterprises are active players in international trade and finance and feature prominently in the caseloads of many arbitral institutions. Their significance is highlighted by the ICC's recent creation of a Task Force on Arbitration Involving States or State Entities. Many claims involving state parties have monstrously high stakes and are connected to strategic industries or public-private partnerships for infrastructure projects. Others involve more routine commercial matters. Regardless, the practitioner facing a dispute with a public sector party must be aware of the potential traps and plan accordingly. An expert panel will address some of the major issues, including immunity and vicarious liability of states for economic activities of state entities, the conduct of arbitration proceedings involving such parties, determining the identity of states and state entities, binding a government through an arbitration clause signed by a public institution or state-owned corporation, and other such matters.

CONCURRENT SESSION #3 –

Third-Party Funding of Litigation and Arbitration: The Future of Global Dispute Resolution or Ethical Quagmire?

Third-party funding of litigation and arbitration involves the financing of legal disputes by entities which are neither party to nor necessarily even related to the dispute itself. While the principal interest of such providers of funding generally is the purely mercenary and capitalist objective of financial profit, the availability of financing has begun to allow for the prosecution and defense of significant disputes by parties which otherwise would not have had the resources to proceed. Third-party funding therefore may become a powerful and innovative mechanism for reducing or avoiding the legal fees, expenses, arbitrator fees and other costs generally associated with international litigation and arbitrations which have become the focus of clients and attorneys around the world.

This panel, comprised of leading experts on third-party funding, will examine the growth and impact of funding of litigation and arbitration by third parties and the opportunities and risks to clients and potential funders in the CIS and around the globe, as well as the availability of alternative mechanisms such as contingent and conditional fee agreements. The program also will include a thorough consideration of the ethical obligations of lawyers, including confidentiality and privilege, professional independence and splitting of fees, which has led the American Bar Association to create a working group to report on the potential ethical issues and the United Kingdom to commission a government-sponsored report, released in early 2010, on the costs of civil litigation.

Making an Informed Choice of Law Decision in Cross-Border Transactions

Dispute resolution and choice of law clauses are typically an afterthought in corporate deal-making, but drastically affect the options available to the parties when a conflict arises. In particular, the choice of applicable substantive law (i.e. the law of the contract) is a crucial matter, but is often decided reflexively without an in-depth examination of the consequences.

This panel, composed of dispute resolution specialists from different jurisdictions, intends to look behind basic stereotypes to address the true implications of choosing English law, New York law, Swiss law or Russian law for the interpretation and enforcement of a contract.

The discussion may also examine the interplay between the choices of substantive law and procedural rules in dispute resolution, although procedural rules of different jurisdictions and arbitral institutions will not be a focus of the session. In order to promote a healthy debate, the panelists and the audience members will be asked to consider how companies in different circumstances might gain from or be harmed by a particular choice of legal regime.

PLENARY SESSION –

Fresh Off the Press! An Open Mike Debate about Hot Topics in Litigation and Arbitration

The moderators will engage the audience in an interactive discussion about some of the most recent developments in litigation and arbitration in Russia and the CIS. The debate will conclude with electronic voting on some of the most critical questions that emerge during the course of the day. Don’t miss your chance to contribute, support, disagree, vote, and make a difference.