New York-NSW MoU to save time and money in disputes

Time and cost savings are set to be the greatest achievement if a new memorandum of understanding (MoU) between NSW and New York courts comes into effect. The NSW Supreme Court, Law Council of Australia and their counterparts in NY signed the MoU recently, during the NY Bar Association meeting in Sydney held last week.

Mallesons partner and head of dispute resolution, Roger Forbes, said the MoU had the potential to substantially cut costs and time in cases where NY law was in question. Under the agreement, a case in the NSW Supreme Court involving an element of NY law would see the judge pass on the questions surrounding that law to a NY-based judge, who would then make recommendations to the NSW judge on their findings. “Under the current system, a judge is required to identify what that law is through the evidence presented, often involving witnesses, which can be expensive,” said Forbes. “The judges are required to interpret a foreign law, which they have no experience or expertise in.”

Forbes said “contracting out” fact-finding in legal cases was nothing new, with medical experts or engineering experts often engaged by judges; this MoU was a continuation of that practice – just to another judge in another jurisdiction. A similar MoU was made with the Supreme Court of Singapore in June, however it has not yet come into practice. “Hopefully they will draw the rules of the agreement so that the full extent of time and cost benefits can be achieved, and soon,” said Forbes.

He added that the MoU’s were an effort by the courts to remain active in international disputes. “The courts want to remain a relevant form of dispute resolution and they are aware of international arbitration becoming a more common occurrence,” he said. He also said there was great potential for more MoU’s with other major Australian trading partners. “I think all Supreme Courts could potentially benefit from similar arrangements,” he stated.

Subscribe to our newsletter