Companies often believe that the only remedy for anti-competitive behavior comes from government intervention.
However, as a recent U.S. appeals court decision illustrates, private parties can obtain relief themselves, even against “consummated” mergers approved by government regulators.
This creative strategy is just one of many that companies can deploy by themselves when facing competitive challenges.
The U.S. Corporate Transparency Act (CTA), part of the recently-passed National Defense Authorization Act (NDAA), has broken new ground by requiring beneficial owners of U.S. corporate entities to register with U.S. government authorities.
While the CTA appears to shut out private parties – such as creditors and victims of fraud – from accessing such information, there may be potential creative ways to work around this roadblock, bringing creditors one step closer to a substantial recovery of their assets.
Nevertheless, creative creditors and their counsel might be able to obtain this information through certain channels to cut off escape routes for debtors and fraudsters, and obtain more complete recoveries.
Prevailing case law in BVI and Cayman has historically not allowed injunctions to be granted by the offshore courts unless there is an existing claim against the defendant within the jurisdiction of the Court granting the injunction.
Fortunately, that position has changed in the Cayman Islands and now in BVI, with claimants, including those from onshore jurisdictions such as Hong Kong and the People’s Republic of China, able to obtain “free-standing” injunctive relief in both offshore jurisdictions.
With the advent of the new law in BVI, and the continuing willingness of the Cayman Islands’ Courts to make protective orders, victims of fraud are now in a better position than they have ever been to guard against a defendant’s dissipation of its offshore assets whilst they are waiting for a judgment.
Section 1782 discovery in the United States is a powerful tool to access information and gain an edge in foreign proceedings.
However, the power of this tool and the ease in which it is granted invites parties to use it in service of goals completely unrelated to ongoing proceedings, such as a negative PR campaign.
Defeating a 1782 application is not easy, but there are counterarguments and cross-border tools available to fight back and turn the tables on an unscrupulous adversary.
Investors and creditors can gain potentially large returns if they successfully enforce a large judgment against a sovereign debtor.
However, with such high-stakes, sovereign governments have begun fighting back using state powers against creditors, turning civil proceedings into a quasi-criminal cross-border dispute.
A creditor must employ anticipatory and nonconventional counteroffensive measures in order to protect themselves and maximize their odds of success.
The current economic downturn has triggered record-breaking amounts of debt owed by governments to overseas investors.
The crisis, however, has the potential to create large returns for creditors and investors willing to aggressively pursue their claims over a sovereign government.
A proven yet unorthodox cross-border litigation strategy that catches sovereigns by surprise can achieve the monetization of judgments previously thought too tough to enforce.
Even when they leave their home countries for the United States, many individuals still get targeted by aggressive foreign insolvency proceedings that try to get recognized in U.S. courts.
However, as a recent U.S. Bankruptcy Court decision in favor of a Russian debtor has revealed, there are important steps targets can take to defend themselves.
By gathering evidence to show the corrupt nature of the foreign proceedings and one’s severed ties with the foreign country, targets can beat back these hostile campaigns.
In the midst of the ongoing U.S.-China trade war, U.S. accusers who obtain a judgment in their dispute can use it to interfere with the day-to-day commercial activities of PRC entities.
To prevent and protect against a judgment, Chinese entities must understand both their own vulnerabilities and their legitimate rights before and after a judgment.
Pre-emptively preparing a defensive strategy that considers not only judgment defense, but also other likely scenarios – from a civil IP theft dispute to U.S. criminal proceedings under the umbrella of national security – can be quite effective.
Compared with UK discovery, with its limited scope and high costs, U.S. discovery can be a much more powerful and widely usable tool of enforcement.
U.S. Discovery, unlike UK discovery, is not limited to documents contained within its national borders.
Furthermore, documents discovered through U.S. discovery can often be used for purposes beyond those specifically identified in the original discovery application.
Amidst an economic downturn, the active assertion of patent rights can generate massive returns for patent holders, as demonstrated by numerous recoveries in the U.S. in 2019.
The passing of the America Invents Act (AIA) in 2011 and subsequent judicial decisions have led to a downturn in patent value, but the recent precedential decision in the U.S. Patent Trial and Appeal Board (PTAB) has turned more positive, placing patent holders in a favorable position for the first time in recent memory.
With legal conditions for patent enforcement improving in the U.S., now is an important time for businesses, their investors and their advisors to identify and deploy assertable IP holdings.
For companies facing the economic fallout of COVID-19, time has become the most precious commodity to preserving their assets and riding out the storm.
The ‘force majeure’ clause often found in contracts under New York and English law, if invoked correctly, could increase the likelihood of success in potential litigation with lenders.
Our lawyers around the world take a close look at the force majeure clause and how courts in different jurisdictions (including Brazil and Argentina) have chosen to interpret its applicability in a pandemic situation.
As the ongoing trade war with China intensifies, U.S. entities have increasingly alleged trade secret theft against Chinese individuals and companies, in cooperation with U.S. law enforcement actions.
With this in mind, Chinese parties in global trade secret disputes will need to anticipate and respond to the risk that their disputes could quickly turn criminal.
Off-ramping a criminal investigation, or clearing one’s name in a criminal prosecution for alleged trade secret theft, requires a keen understanding of criminal and civil U.S. trade secret laws, as well as the intersection of intellectual property and national security matters.
In light of the ongoing PRC-U.S. trade dispute, Chinese companies are more likely to face charges in U.S. courts against civil claims of trade secret theft.
Civil trade secret misappropriation cases in U.S. courts can be particularly complex and high-stakes for Chinese companies on the defensive end of cross-border disputes.
Chinese companies, their executives and legal representatives should familiarize themselves with U.S. IP protection standards in the face of pending cross-border litigation.
For those considering investing in projects tied to China’s Belt and Road Initiative (BRI), corruption and bribery are major areas of concern.
In the event of fraud or misconduct allegations, parties and their counsel will need to understand and anticipate how global anti-corruption enforcers might approach such investigations.
Carrying out a series of “stress tests” or appointing an independent third-party examiner are two examples of proactive measures companies can take to mitigate the risk of being on the wrong end of an anti-corruption investigation.
