Document type: Checklist Practice area: Litigation — International Litigation Jurisdiction: United States, with comparative notes Last reviewed: 5 September 2026

Section 1 — First forty-eight hours

  • Foreign papers obtained and professionally translated
  • Local counsel retained in the foreign forum
  • All foreign procedural deadlines identified and calendared — these are short and a default abroad is very hard to unwind
  • The contract's dispute resolution clause reviewed: is it exclusive? Is there an arbitration clause?
  • Litigation hold issued covering both proceedings and all jurisdictions
  • Data protection and blocking statute constraints identified before any collection
  • Effect of appearing in the foreign forum confirmed — in some systems appearance waives jurisdictional objections
  • Chronology assembled: filing dates against events and rulings
  • Client briefed on the likely timetable and cost

Section 2 — The recognition analysis (before deciding to race)

  • Where are the counterparty's assets?
  • Would a judgment from the preferred forum be recognized there? Written opinion from local counsel obtained
  • Grounds on which recognition could be refused, and their likelihood
  • Time and cost of recognition and enforcement
  • Would the other side's judgment be recognized against the client, and where?
  • Note: in many civil law jurisdictions a US judgment is not enforceable absent a treaty, and punitive or multiple damages are frequently refused
  • Note: a foreign judgment obtained in breach of an arbitration or forum clause may be denied recognition in the US on that basis

Section 3 — Anti-suit injunction assessment

Thresholds:

  • Same parties — or sufficiently so; are there foreign parties not before the domestic court?
  • Dispositive: would resolution of the domestic case resolve the foreign one? List every claim, issue, remedy, and party the domestic case will NOT reach
  • If not dispositive: can the domestic pleading be amended to make it so?

Discretion:

  • Which circuit, and does it follow the conservative approach (threat to jurisdiction or important public policy required) or the liberal approach (equities weighed, including duplication and vexatiousness)?
  • Is there an arbitration clause or an exclusive forum selection clause? If so the application is strong in either camp
  • Evidence of vexatiousness: reactive filing, unconnected forum, duplicative claims
  • Evidence of a threat to jurisdiction or to a specific policy

Risk:

  • Counter-injunction risk assessed — will the foreign court grant anti-anti-suit relief?
  • Client's exposure in the foreign jurisdiction mapped: personnel, assets, subsidiaries
  • Client advised expressly on the possibility of contradictory orders

Motion:

  • Filed early, before the foreign action progresses
  • Pleads both the threshold framework and the ordinary preliminary injunction factors
  • Foreign counsel declaration on the foreign proceeding, timetable, and available relief
  • Proposed order drafted narrowly: specific proceeding, specific conduct, temporal limit tied to a domestic milestone, carve-outs for preserving rights and complying with foreign procedure
  • Bond considered

Section 4 — Alternatives

Motion to compel arbitration or enforce a forum clause:

  • Considered first — this is the ordinary remedy and the right opening move where a clause exists

Discretionary stay:

  • Chronology showing relative progress
  • Foreign counsel declaration on timetable, issues, and expected judgment
  • Issue-by-issue overlap
  • Preclusive effect a foreign judgment would have
  • Prejudice from parallel proceeding: cost, inconsistency, witness burden
  • Proposed end or review date — open-ended stays are refused
  • Limited alternatives pleaded: stay of discovery, of specified claims, or until a defined milestone

Forum non conveniens:

  • Adequate alternative forum available
  • Private and public interest factors marshalled
  • Deference owed to the plaintiff's choice assessed

Section 5 — Coordination machinery

  • Coordinating lead appointed, by name, in one jurisdiction
  • Single position paper on the facts, maintained centrally
  • Single case chronology
  • Shared document repository, with privilege and data protection access controls
  • Standing call with counsel from both forums
  • Single settlement authority
  • Every filing in both forums reviewed in translation before it goes out
  • Foreign counsel briefed on the whole dispute and the client's actual objective
  • Reporting expectations, decision authority, budget, and billing conventions agreed at the outset

Section 6 — Evidence conflicts

  • Section 1782 asymmetry mapped: is the client's adversary or key third parties in a US district? Is the client exposed to an application?
  • Note: section 1782 reaches governmental and intergovernmental adjudicative bodies, not private commercial arbitral tribunals
  • Blocking statutes identified in every relevant jurisdiction
  • Data protection constraints on transferring personal data mapped before collection
  • Privilege differences identified — in-house counsel communications are the recurring divergence
  • Collection performed once, to the most demanding standard, with compliance built in
  • Privilege review conducted under both systems
  • Genuine conflicts raised with the court early, with foreign law evidence, seeking a protocol
  • Deposition and testimony sequencing coordinated

Section 7 — Witnesses

  • Prepared once, for both proceedings
  • Briefed on the whole picture, including what they have said in each forum
  • Every prior statement reconciled: witness statements, declarations, verified pleadings, regulatory filings
  • Format differences explained — civil law statements and judicial questioning versus adversarial cross-examination
  • Availability risk assessed; evidence taken early where a witness may become unavailable

Section 8 — Preclusion

For each significant issue:

  • Which forum decides it first, on realistic timetables?
  • Will that finding be preclusive in the other forum? Under whose law is that decided?
  • Does the client expect to win or lose it?
  • Does that suggest accelerating or delaying?
  • Note the asymmetry: US courts may give preclusive effect to foreign judgments where foreign courts give none to US judgments

Section 9 — Interim relief

  • Foreign counsel asked, in the first two weeks: what interim relief is available here, how quickly, and on what showing?
  • Pre-judgment attachment or freezing relief assessed in each jurisdiction
  • Arrest of vessels or aircraft, where applicable
  • Evidence preservation orders
  • Court-ordered interim measures in aid of arbitration, including an arbitration seated elsewhere
  • Emergency arbitrator availability and the enforceability of any resulting order
  • Applications coordinated across forums; full and frank disclosure obligations satisfied in jurisdictions that require it

Section 10 — Cost model and settlement

  • Total cost modelled: counsel and local counsel in each forum, experts, translation, discovery, motion practice, appeals, enforcement
  • Compared to the amount in dispute, and presented to the client in writing
  • Settlement channel opened early
  • Settlement documented to cover both proceedings:
    • Releases covering all claims in both, and claims that could have been brought
    • Discontinuance or dismissal in the form each forum requires; consent or court permission where needed
    • Interim relief withdrawn: injunctions, attachments, arrests, security
    • Bonds released
    • Costs addressed in each forum
    • Confidentiality and permitted public statements
    • Tax treatment in both jurisdictions
    • A single forum — usually arbitration — for disputes about the settlement itself
    • Simultaneous exchange or escrow of discontinuance documents
    • Any existing judgment satisfied and registrations vacated
    • Closure of each proceeding confirmed afterwards and diarized

Section 11 — Defending an anti-suit application

  • Attack the thresholds first
    • Parties: are there foreign claimants, defendants, or interested parties not before the domestic court?
    • Dispositive: list every claim, issue, remedy, and party the domestic action will not reach. A single item defeats the threshold
    • Statutory claims under foreign law; remedies unavailable domestically; property or conduct outside the domestic court's reach
  • Comity
    • The foreign court's legitimate interest: conduct there, parties established there, its law applies, claim arises under its statute
    • Mandatory local protections the foreign forum exists to apply
    • In a conservative circuit: no threat to jurisdiction and no important policy identified
    • Escalation risk: an injunction invites a counter-injunction
  • Equities
    • Delay and acquiescence — did the movant wait while the foreign action progressed?
    • Unclean hands: the movant's own reactive filing or forum shopping
    • Prejudice: limitations running, remedies unavailable elsewhere, security already obtained
    • The movant's own conduct in the foreign forum — did it appear or seek relief there first?
  • Scope: argue for the narrowest order, with carve-outs
  • Counter-application assessed — but weigh whether escalation serves the client

Section 12 — Drafting to prevent recurrence

For the next contract:

  • Exclusive jurisdiction clause, or an arbitration clause — not non-exclusive, which permits the parallel filing and defeats the injunction
  • Arbitration where enforcement abroad matters — an award reaches most of the world; a US judgment frequently does not
  • Express covenant not to sue elsewhere, with an acknowledgment that injunctive relief is appropriate and damages inadequate
  • Anti-anti-suit provision, where the risk is real
  • Carve-out permitting interim and conservatory relief from any court
  • Clauses reconciled across the whole document set — master agreement, supply agreement, guarantees, and side letters
  • Service of process agents appointed in each relevant jurisdiction
  • Mandatory local protections identified and priced — dealer, distributor, employment, consumer, and competition rules frequently survive a choice of law and forum

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