Strategic considerations in global litigation : comparing judicial case management approaches in South Africa with the United States
CITATION: Broodryk, T. 2017. Strategic considerations in global litigation : comparing judicial case management approaches in South Africa with the United States. Stellenbosch Law Review = Stellenbosch Regstydskrif 28(2):349-401.
The original publication is available at https://journals.co.za/content/journal/jlc_salj
Economic activity has become globalised. As a result, the incidence and scope of mass litigation has increased dramatically. This has resulted in a continuously changing global litigation landscape. Litigation too has become globalised. Disputes that used to be contained within national borders are now transnational. To participate in this transnational litigation realm successfully and to design, implement and coordinate an effective global litigation strategy, knowledge limited to one’s own legal system will no longer suffice. Of fundamental importance is transnational knowledge of legal systems. Knowledge of the legal systems of the different jurisdictions involved in the litigation may assist in addressing the challenges that could arise during global litigation. It may also assist parties to make sensible strategic choices regarding the conduct of the litigation. One such relevant strategic consideration, which this article considers, is whether and to what extent the judge will manage the litigation. The managerial role of the judge is relevant to informing parties’ strategic decision-making in the context of global litigation. The article accordingly suggests that the parties to global litigation would be well-advised to consider possible disparities in the approaches of courts to managing complex litigation, both nationally and transnationally. The role of the judge is only one of these considerations, but it could have a significant impact on the litigation, including its outcome. The article does not aim to engage in a critical analysis of the value of judicial case management as such, but rather to consider how differences in judicial approaches could inform strategic decision-making during global litigation.