When process becomes strategy: Tactical Use of procedure in international disputes – a global perspective

When the British engineer Frederick Simms met the German inventor Gottlieb Daimler in 1889, their encounter came to represent an early illustration of the cross-border collaboration that helped shape the development of modern motoring. Within a year, Simms had secured the rights to use and manufacture Daimler’s high-speed petrol engine across much of the British Empire, enabling German engineering innovation to find expression in a British commercial and industrial setting. Later, Simms would coin the terms ‘petrol’ and ‘motor car’ and, in 1897, become one of the founders of the Automobile Club of Great Britain and Ireland, which later received its Royal Charter and became the Royal Automobile Club.

More than 120 years later, a cross-border collaboration of a different kind took place at the Royal Automobile Club’s Pall Mall headquarters. As part of London International Disputes Week, Stevens & Bolton co-hosted a panel discussion with Cooke, Young & Keidan, in association with AIJA – International Association of Young Lawyers.

The panel comprised Catherine Penny, partner in Stevens & Bolton’s commercial litigation team, together with Kajal Patel of Cooke, Young & Keidan (England & Wales), Benjamin Wilson of Holland & Knight LLP (Philadelphia, United States), Ankit Paleja of Crawford Bayley & Co (India) and Evin Durmaz of Monfrini Bitton Klein (Switzerland). It addressed the question: “ When Process Becomes Strategy: A Global Perspective on Dispute Tactics”.

The panel’s discussion demonstrated that, whether litigants are operating in a common law or civil law jurisdiction, procedure is no longer merely the framework within which cases are resolved; it has increasingly become a strategic instrument in its own right. Across jurisdictions, practitioners are using procedural mechanisms to shape commercial outcomes, exert pressure and encourage settlement.

Each jurisdiction appears to have its own particular procedural pressure points.

India: Managing Delay and the Power of Interim Remedies

In India, delay remains a defining feature of litigation strategy. Where a final judgment may be many years away, interim measures become a particularly powerful tool for protecting a party’s position, mitigating risk and encouraging settlement, especially where the passage of time may itself alter the commercial dynamics of the dispute.

United States: Early Leverage 

In the United States, there is often a significant first-mover advantage. Early decisions as to forum and jurisdiction can materially influence the course of the case from the outset, whether because certain states are regarded as more claimant-friendly, others have legislation aimed at discouraging frivolous or inflated claims, or particular courts are better suited to complex financial or fraud disputes. Applications for injunctive relief and dispositive motions may likewise shape the direction of proceedings at a very early stage.

Discovery is, notoriously, often the central battleground in US litigation, as it is typically the most resource-intensive phase of the proceedings and can generate considerable cost and disruption.  The anticipated burden of extensive disclosure can itself create substantial settlement pressure.

Switzerland: Navigating Constraints on Evidence Gathering

Parties unfamiliar with Switzerland are often led to believe that obtaining evidence there is far more difficult than is in fact the case, owing to the manner in which the Swiss Blocking Statute, data protection rules and banking secrecy laws are frequently invoked as a shield against disclosure.

The strategic advantage lies, therefore, in understanding alternative routes to evidence, including the use of criminal or insolvency proceedings.

Similarly, although federal law applies uniformly across Switzerland, each canton has its own court system, and certain cantons may be more advantageous than others for particular classes of litigant.

United Kingdom: Costs 

In England & Wales, the “loser pays” rule is a central tactical consideration, both at the outset of a claim and throughout its lifespan.  It means that parties are generally less likely to pursue unmeritorious applications or claims than in jurisdictions in which each party bears its own costs.

Alongside that default rule, the English Civil Procedure Rules have developed other mechanisms that may serve as powerful tactical tools, including Part 36 offers, security for costs and applications for indemnity costs. These mechanisms allow one party to exert financial pressure, or the threat of it, on the other in order to encourage settlement where continued litigation becomes commercially unattractive.  The increasing role of third-party funding is also reshaping this dynamic, altering how risk is allocated and how disputes are pursued.

For those less familiar with Part 36, it is a rule within the Civil Procedure Rules that provides a structured framework for making formal settlement offers, designed to encourage the early resolution of disputes. A compliant Part 36 offer must be made in writing, clearly state its status and allow a specified relevant period for acceptance.  Its distinctive feature lies in the significant costs consequences that follow if an offer is not accepted and the rejecting party fails to achieve a better outcome at trial.  For claimants, this may include indemnity costs, enhanced interest and an additional monetary award; for defendants, it may shift liability for costs to the claimant.  

In English commercial litigation, an order for standard costs means that only costs which are reasonably incurred and proportionate to the matters in issue are recoverable, with any doubt resolved in favour of the paying party.  An order for indemnity costs is more generous to the receiving party: proportionality does not apply in the same way, and any doubt is resolved in favour of the receiving party instead. 

In essence, Part 36 seeks to align procedural efficiency with fairness by discouraging parties from unreasonably refusing sensible settlement offers.

Security for costs is an interim remedy under Part 25 of the Civil Procedure Rules that enables the court to require a claimant to provide financial security for a defendant’s legal costs.  Its purpose is to protect defendants against the risk of successfully defending a claim but being unable to recover their costs from an impecunious corporate claimant, or from a corporate or individual claimant outside the jurisdiction.  If security is ordered, proceedings will usually be stayed until it is provided, and a failure to comply may lead to the claim being struck out.

If the discussion demonstrated anything, it was that in cross-border disputes, procedure is not merely ancillary to the resolution of a case, but may materially influence the balance of advantage, the pressure exerted upon the parties and, ultimately, whether the dispute proceeds to judgment at all. In that sense, procedure may prove as determinative as substance in deciding who remains in the driving seat.