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OCTOBER 2013
Legal Focus
87 Litigation
Dispute in business is inevitable. It is an integral part of growing a business, succeeding within it, and maintaining that success. It is how disputes are handled that matters. One such method is of course litigation. To find out about the issues surrounding litigation in Gibraltar currently, Lawyer Monthly speaks to Nicholas Howard, partner at Hassans International Law Firm.
What are the common cases of commercial litigation in your country?
The jurisdiction has a rather varied caseload and the Courts invariably deal with a large volume of general contractual claims, trust litigation, shareholder disputes together with insolvency. Gibraltar has a large e-gaming and insurance presence and a growing Funds presence and in this respect the Courts do occasionally deal with niche issues relating to these industries.
Is there a typical method of dealing with commercial litigation for all businesses or do you have to employ a specific tactic for foreign companies compared to local companies?
Foreign companies wishing to pursue litigation in Gibraltar must establish and show that Gibraltar is the appropriate jurisdiction to bring any contemplated proceedings and in this respect there is that first hurdle to overcome (establishing jurisdiction) before issuing any proceedings. In addition, unless domiciled in the EU, a foreign company will likely have to provide security for costs if pursing a claim in Gibraltar. These considerations do not apply for Gibraltar companies who predominantly operate within Gibraltar or, when servicing foreign clients, invariably provide for their terms of business to specify Gibraltar as the appropriate jurisdiction. In the round though, our advice will generally apply universally as tailored to the specific facts and merits of a case whether we be prosecuting or defending.
do laws and regulations differ for domestic companies as opposed to foreign companies?
Generally no, they do not. That said there are a number of European directives that do impact on the jurisdiction of the Gibraltar Courts in respect to their ability to deal with foreign companies operating in some form in Gibraltar in the same
manner as they would a Gibraltar domiciled company (insolvency being an example). Gibraltar is very advanced in having transposed every applicable European directive into local law.
according to recent research, litigation, globally, has been steadily rising over the last few years since the global economy began to collapse in 2007. What do you attribute this rise to?
I think predominantly when companies face a tightening of cash flow and deteriorating economic and market conditions they tend to look to protect and collect on what they have. This very often means that companies will aggressively pursue the recovery of debts and protection of market share. In Gibraltar we have not necessarily seen a spike in litigation which I think is attributable to the resilience of the local economy and the fact that we have weathered the global economic crisis very well. We have had sustained growth year on year.
How does your firm assist clients involved in commercial litigation? Is there any general advice you could offer clients to prevent the situation from escalating?
Due to the relatively large size of our firm (the largest in Gibraltar by some margin) we are able to assist clients in dealing with their specific litigation needs quickly and efficiently as we have the ability to involve a number of lawyers of various seniority in any particular case (as required) who can then cater for every aspect of our clients’ needs. We are not in the business of litigating for the sake of litigating and will always explore alternate dispute resolution avenues with our clients where appropriate.
do you foresee the need for legislative change in the next 12-24 months, if so why?
Yes, our Company and Insolvency law and regulations are a little antiquated in still being
based on the English Companies Act of 1929 and the Companies (Winding-Up) Rules 1929. A lot of work has already gone into the drafting of new legislation and regulations and I am hopeful that this will bear fruit within this timeframe and that the new legislation will be put in place. Gibraltar is a vibrant business community and, because of our size, we are able to react quickly legislatively speaking in order to properly regulate and accommodate new industries, Funds being a good recent example.
What are the future aspirations and direction for your company? How do you see your practice area progressing for the rest of 2013?
As over the past ten years - careful, steady and sustained growth for the firm with the needs of our clients and community at the heart of all we do. As regards my practice area, I hope to continue, together with my colleagues in the department, to offer our clients the very best service and standards of excellence as they have fully come to expect and deserve. LM
contact:
nicholas Howard Partner Hassans International Law Firm t +(350) 200 79000 F +(350) 200 50167 E nicholas.howard@hassans.gi W www.gibraltarlaw.com