Cross Border Disputes: Winning Is Half the Battle, Collecting Is the Rest

A U.S. .ourt can hear a claim against a foreign company only when personal jurisdiction exists, and the Supreme Court has narrowed that doctrine significantly over the past decade.

General jurisdiction, which allows suit on any claim, exists essentially only where the company is incorporated or has its principal place of business after Daimler AG v. Bauman, 571 U.S. 117 (2014). A foreign parent is not subject to general jurisdiction in a state merely because its subsidiary operates there. Specific jurisdiction requires that the claim arise out of or relate to the defendant's contacts with the forum, such as sales into the state, a contract performed there, or targeted conduct causing harm there.

Service of process on a foreign defendant adds a second layer. For defendants located in a Hague Service Convention contracting state, currently 84 contracting parties, service must be planned around the Convention's permitted channels and any country-specific objections, including objections to service by mail that several major jurisdictions maintain. The process can take months, and a case filed without a jurisdiction and service plan stalls at the threshold. International litigation analysis must resolve both questions before the complaint is drafted.

A defendant sued in a U.S. .ourt can move to dismiss for forum non conveniens, arguing that an adequate alternative forum abroad is more appropriate, and the doctrine is a routine and often successful defense in cross border cases.

Courts weigh private factors, including the location of evidence and witnesses, against public factors, including the forum's interest in the dispute, with less deference given to a foreign plaintiff's choice of a U.S. .orum. A dismissal sends the plaintiff to the foreign forum after months of motion practice, which is why the plaintiff's filing decision must anticipate the motion rather than react to it.

Parallel proceedings are the mirror problem: the counterparty races to file in its home court while the dispute is filed here. Outcomes then depend on which judgment finishes first and where it can be enforced, and anti-suit injunctions restraining the foreign proceeding are available only in limited circumstances that vary by circuit. The race underscores why speed and sequencing in the first weeks of a cross border dispute carry consequences that cannot be recovered later.

An enforceable international arbitration clause specifies five things: the institution and its rules, the seat of arbitration, the language, the number of arbitrators, and the governing law of the contract.

The seat is the most consequential and least understood choice. It determines which national courts supervise the arbitration, which arbitration law applies to the proceeding, and where the award is treated as rendered for Convention purposes. A seat in a jurisdiction with arbitration-friendly courts and minimal judicial interference protects the award; a seat chosen carelessly invites set-aside litigation in a hostile forum.

Pathological clauses, those naming a nonexistent institution, combining contradictory mechanisms, or leaving the seat ambiguous, generate exactly the preliminary forum litigation that arbitration was meant to avoid. Before signing, the clause should also be checked against the counterparty's home jurisdiction: a perfect award is useless if the country where the assets sit recognizes a public policy exception broad enough to swallow it. Reviewing the clause at signing costs a fraction of the forum fight a defective clause produces, which is why international contracts diligence belongs in the deal process, not the dispute process.

Section 1782 allows a party to a foreign proceeding to obtain U.S.-style discovery from persons or entities found in the United States, and it is one of the most powerful and underused tools in cross border disputes.

A litigant in a foreign court can apply to a U.S. .istrict court for an order compelling documents or testimony from a U.S.-based bank, affiliate, counterparty, or witness, often obtaining evidence far broader than the foreign forum's own procedures would allow. The Supreme Court in ZF Automotive US, Inc. .. Luxshare, Ltd., 596 U.S. 619 (2022), held that a tribunal qualifies under the statute only when it is imbued with governmental or intergovernmental authority. Private commercial arbitral tribunals do not qualify, and the Court held that the ad hoc investor-state panel before it did not either. Treaty-based proceedings therefore require case-by-case analysis: the question is whether the specific body exercises governmental authority, not merely whether a treaty is involved.

The strategic uses run both directions: obtaining evidence held in the U.S. .or a foreign case, and anticipating that a foreign counterparty may use § 1782 against your U.S. .perations. Discovery exposure in the U.S. .s a factor that should be weighed when choosing between arbitration and foreign court litigation at the drafting stage.

Asset tracing in cross border disputes combines public records, corporate registry analysis, and discovery tools to locate what the counterparty owns and where, because an enforcement strategy without an asset map is a guess.

Sophisticated counterparties hold assets through layered structures across jurisdictions, and the enforcement plan must identify which entities own what, which jurisdictions allow veil piercing or alter ego claims, and where interim measures can freeze assets before they move. Pre-judgment attachment, worldwide freezing orders available in some common law jurisdictions, and provisional measures from arbitral tribunals are the tools that prevent a winning award from chasing an empty shell.

Timing is decisive. Assets move when a dispute becomes visible, and interim relief sought after the counterparty has restructured arrives too late. International disputes counsel should commission the asset investigation at the same time the merits strategy is formed, because the two analyses jointly determine whether the case is worth bringing at all.

Three complications can override an otherwise sound cross border strategy: sanctions regimes, the counterparty's insolvency, and sovereign or state-owned parties.

Sanctions can make payment legally impossible even after a win: a counterparty, its bank, or the payment channel touched by OFAC or other sanctions regimes turns collection into a licensing problem, and transactions structured years earlier may cross lines drawn afterward. A counterparty's insolvency filing in its home jurisdiction can stay enforcement and pull the dispute into a foreign restructuring, where cross-border insolvency frameworks, including Chapter 15 recognition in the U.S., determine what a creditor can still do.

Sovereign and state-owned counterparties bring the Foreign Sovereign Immunities Act, which limits both jurisdiction and execution against sovereign assets to enumerated exceptions, with execution immunity surviving even where jurisdiction exists. A sanctions, insolvency, and sovereign-immunity screen should be completed before major litigation spend, because each can turn a strong claim into an uncollectible one. International and cross-border insolvency and international sanctions and trade tariffs issues discovered after judgment are the most expensive kind.

Evidence that moves across borders runs into three recurring walls: foreign data protection law, blocking statutes, and privilege rules that do not match.

Transferring documents from some jurisdictions for U.S. .iscovery can violate data protection regimes such as the GDPR or national blocking statutes that prohibit disclosure for foreign proceedings, forcing parties to navigate between a U.S. .ourt order and foreign criminal exposure. Courts apply comity analyses to these conflicts, but the practical resolution is usually negotiated protocols, redaction, and processing data in place.

Privilege is the quieter trap. In-house counsel communications privileged in the U.S. .ay not be privileged in jurisdictions that do not extend privilege to employed lawyers, and documents created for a foreign proceeding may lose protection when produced abroad. A privilege map covering every jurisdiction the evidence touches should exist before documents move anywhere, because privilege lost in one forum is often lost everywhere.

Only if personal jurisdiction exists. After Daimler, general jurisdiction over a foreign company exists essentially only where it is incorporated or headquartered, so most cases require specific jurisdiction: the claim must arise out of the company's contacts with the forum, such as sales into the state, a contract performed there, or conduct targeted at it. Even with jurisdiction, service must usually follow the Hague Service Convention, which takes months in many countries, and the defendant can move to dismiss for forum non conveniens. A realistic assessment of jurisdiction, service, and the dismissal risk should precede filing, because losing those threshold fights costs a year before the merits begin.

For enforceability, usually yes. Arbitral awards are enforceable in more than 170 countries under the New York Convention through narrow, internationally standardized defenses, while no comparable treaty exists for court judgments, and some major jurisdictions barely enforce U.S. .udgments at all. Arbitration adds a neutral seat, expert arbitrators, language choice, and greater privacy, though confidentiality must be secured expressly rather than assumed. The costs are limited discovery, limited appeals, and institutional fees. The decision should turn on where the counterparty's assets are: if they sit in a country that enforces Convention awards but not U.S. .udgments, the arbitration clause is effectively the collection mechanism.

An arbitral award under the New York Convention is confirmed in federal court under 9 U.S.C. § 207, generally within three years, subject only to the Convention's narrow defenses. A foreign court money judgment is recognized under state law, typically the Uniform Foreign-Country Money Judgments Recognition Act, which requires that the foreign court had jurisdiction and the proceedings were fundamentally fair. Once confirmed or recognized, the award or judgment is enforced like any domestic judgment through liens, garnishment, and execution. The practical work is finding assets: confirmation against a defendant with no U.S. .ssets produces paper, which is why asset investigation runs parallel to the legal process.

It depends entirely on the destination country, because no worldwide treaty provides automatic recognition of court judgments. Each country applies its own recognition procedure, and the obstacles are predictable: several major jurisdictions enforce U.S. .udgments reluctantly or under reciprocity requirements, punitive damages awards are widely refused as contrary to public policy, and default judgments draw heightened scrutiny of notice and jurisdiction. Before relying on a U.S. .udgment as the collection plan, the recognition law of the country where the assets actually sit must be checked. If the counterparty's assets are abroad, an arbitration clause is often the better instrument at the drafting stage, because a New York Convention award travels where a U.S. .udgment may not.

The forum fight becomes the first case. Each party can file where it prefers, jurisdiction and forum non conveniens motions follow, parallel proceedings may run in two countries, and the eventual winner is often determined by which judgment finishes first and where it can be enforced. Governing law also becomes contested, decided under the forum's conflict-of-laws rules. This scenario is expensive and unpredictable, which is the argument for resolving forum by agreement even mid-dispute: parties sometimes stipulate to arbitration after the dispute arises precisely to escape the dual-track race. Early strategic filing decisions in this posture carry more weight than any merits argument.

Often yes, through 28 U.S.C. § 1782, which lets a party to a foreign proceeding apply to a U.S. .istrict court for discovery from persons or entities found in the district. The discovery available frequently exceeds what the foreign forum itself allows, making § 1782 a significant strategic weapon. After ZF Automotive, § 1782 generally does not apply to private commercial arbitration, and treaty-based bodies qualify only if imbued with governmental or intergovernmental authority. The application is made ex parte in many districts, courts weigh discretionary factors from Intel v. AMD, and the target can move to quash. Companies with U.S. .perations should also assume the tool can be used against them.

Sanctions block recovery when the counterparty, its bank, or the payment channel is touched by OFAC or another regime, turning collection into a licensing question that can outlast the dispute itself. Insolvency blocks it when the counterparty files in its home jurisdiction, staying enforcement and subordinating the claim to a foreign restructuring process; Chapter 15 governs how that foreign proceeding is recognized in the U.S. Both risks are screenable at the outset through sanctions checks and financial diligence on the counterparty, and both should be rescreened before major spending decisions in the case, because a claim that cannot be collected should change the litigation budget, not just the outcome.