Issue 6 2019

CORPORATE VISION / Issue 6 2019 67 limiting those who are authorised to respond to your opponent(s) to a small number of people, to ensure a consistent response; • consider which communica- tions should be made on a “without prejudice” basis; • from the outset, consider mediation; and • remember that, under Eng- lish law, an innocent party cannot recover for losses it could have avoided. While the bar for mitigation is not usually set too high, taking steps to limit losses should be considered. Always consider your position When a dispute is looming, it’s important to ask yourself the following questions before filing your claim: • have you satisfied contrac- tual pre-dispute require- ments (e.g., structured negotiation, mediation, etc.)? • are there any assets to satisfy your judgment/award and, if so, where are they located? If they are at risk • be mindful of recent devel- opments such as the Ach- mea decision on intra-EU BITs, in which the European Court of Justice held that arbitrating claims under intra-EU BITs is inconsist- ent with EU law, and the January 2019 decision by all 28 EU member states to terminate all existing BITs, and structure or re-structure accordingly; • consider how best to protect your company against expropriation, unfair treatment etc. by the host state or state companies by taking advantage of most favourable nation clauses, umbrella clauses and widely drafted BITs; • consider including waivers of sovereign immunity, both in respect of jurisdiction and enforcement (though note that legislation in countries of enforcement will also be relevant, e.g., the English State Immunity Act 1978); and • include a choice of law other than that of the host state, and a jurisdiction clause which will take you outside the courts of the host state. Just as unpredictability will always be a feature of the telecoms industry, disputes in the sector will always exist. Follow- ing the above guidelines should at the very least ensure that you are as ready as can be. Deborah Ruff is a Partner, Julia Kalinina Belcher is Counsel, and Charles H. Golsong is Senior Associate, in the London office of Pillsbury Winthrop Shaw Pittman. Recognised as a top firm for client service, its lawyers are highly regarded for their forward-thinking approach, their collaboration across disciplines and their unsurpassed commer- cial awareness. of having been moved or dissipated by the time the judgment or award appears, what can you do about it? • do you need other urgent in- terim relief and, if so, where do you get it and what do you need to show? • if pursuing an arbitra- tion, consider whether (and what) early relief is available from the courts of the seat of the arbitration before the tribunal is formed, and what the relevant test is; and • if you are seeking an injunc- tion, are you prepared to pay the price (undertaking in damages, bank guarantee, payment into court, etc.)? What about bilateral invest- ment treaties (“BITs”)? If you are at the contractual ne- gotiation stage, be mindful of po- tential disputes. Where there will be potential state involvement, which will often be the case where telecommunications are involved, consider, for example: • structuring transactions to benefit from BITs;