International Litigation

Over 22 years of international legal practice as external and in-house counsel brought Dr Affaki to participate in numerous cross-border, complex proceedings involving conflicts of laws and jurisdictional challenges. His experience as counsel is supplemented by his considerable experience as international arbitrator and mediator, thus offering his clients the benefit of a comprehensive approach towards efficient dispute management.

Prof. Dr. Affaki specializes in offering international corporations legal and strategic advice in relation to crisis management, international litigation with regulatory implications, and the taking of evidence in cross-border disputes. He also counsels or provides guidance to senior directors or board members on criminal and civil liability matters arising in the course of the performance of their employment or fiduciary duties.

Some of his significant representations include:

– Leading an international counsel team consisting of three law firms in different jurisdictions, successfully arguing in Italy the lack of jurisdiction of local courts in relation to a provisional injunction over high value counter-guarantees, while simultaneously asserting lis pendens before English courts as to the merit under article 29 of the Brussels 1 Regulation (recast). Injunction dismissed with prejudice and the award of costs.
– Arguing successfully a motion to dismiss before French courts in relation to a bank fraud case, on the basis of the EU Regulation on Jurisdiction, and obtaining damages for abusive proceedings.
– Acting as lead counsel, devising the strategy and coordinating the work of local counsel in Ukraine, Austria, the United States and Belgium in relation to the recovery of a monetary debt arising in the matter of a fraudulent transaction, involving conflicting arbitration and litigation jurisdictions, regulatory, criminal and civil proceedings before multiple jurisdictions, both ex parte and on the merits.
– In relation to the enforcement of an investment arbitral award, setting the strategy and simultaneously leading enforcement actions in an Arab country, resisting before a European court a demand for the payment of bank guarantees and brokering a global settlement.
– Acting as lead counsel in the matter of a wrongful dishonor of an interbank reimbursement agreement in relation to a multi-million euro documentary credit subject to UCP 600, involving multiple summary judgement, trial and regulatory proceedings in Algeria.
– Advising in the matter of an arbitral claim involving non-signatory parties in relation to the recovery of a monetary debt arising in the matter of a sale of goods contract backed by an Islamic finance mucharaka.

– Acting as international banking law and practice expert in support of counsel work in the matter of the global enforcement of multiple bank guarantees and counter-guarantees before various jurisdictions in the Middle-East and North Africa.
– Acting as Shari’a expert in support of counsel work in the matter of an alleged non-conformity to Shari’a of a complex murabaha real estate investment.

Experience in Crisis Management and the Coordination of Global Litigation:

– As in-house counsel, overseeing and coordinating over a period of five years a major international bank’s response to multiple investigations commenced by national regulators, law enforcement authorities and congressional committees in the United States and Europe in relation to the bank’s compliance with economic sanctions regulations. The case involved the coordination of simultaneous investigations and enforcements in the United States, France, Italy, the United Kingdom, Switzerland, Singapore and Dubai and the management of a global budget in excess of €150 million.
– As in-house counsel, overseeing and coordinating over a period of seven years a major international bank’s response to multiple alleged bribery investigations by regulators, law enforcement authorities and congressional committees in the United States, France, the United Kingdom and Switzerland in relation to a major international bank’s activities under the United Nations-led, USD 40bn-worth, Oil-for-Food Program. Also involving multiple diplomatic contacts with specialist legal and diplomatic units within the UN Secretariat and permanent member States of the UN Security Council leading to the issue of UNSCR 1950(2010).
– As in-house counsel, organising the defense of a major international bank in multiple RICO and tortious liability proceedings filed by a vulture fund against an African State and its creditor bank before courts in the United States and France. Leading the negotiation towards reaching a global settlement in the case (see Kensington International Limited v BNP Paribas, 05 Civ. 5101, SDNY 5 Feb. 2008).
– As in-house counsel, leading a legal team involving French and English counsel successfully defending an issuing bank against a wrongful reimbursement claim by the confirming bank in the matter of precedent-setting Banco Santander SA v Banque Paribas [2000] EWCA Civ 57.
– As in-house counsel, leading a claim against a State-owned export credit agency of an Eastern European country in relation to the wrongful dishonor of an independent guarantee. The case involved the assessment of UN and EU sanction regulations on Libya and their impact on contracts as well as multiple contacts with national government agencies and supranational bodies.
– As in-house counsel, managing complex liability and debt recovery proceedings relating to multi-million dollar financings before the courts in England, Singapore, Switzerland, the United States and France. Managing these cases involves devising the strategy with external counsel, coordinating the Bank’s position on the production of evidence, including assessing the impact of any statutory hindrances to the transmission of protected data, briefing senior management, and contributing to devising a communication strategy.

Other Litigation-related Activities include:

– Acting as Rapporteur on Resolution No. 3/2012 Principles of Jurisdiction over Foreign Bank Branches in the Matter of Extraterritorial Attachment and Turnover. The resolution was sponsored by the Committee on International Monetary Law (Mocomila) and unanimously adopted at the 75th Conference of the International Law Association held in Sofia, Bulgaria, 26 to 30 August 2012.

ILA Resolution
Explanatory Note
Commentaire (in French)
– Consulting with the United Nations Compensation Commission (UNCC) in relation to the implementation of the Provisional Rules for Claims Procedure and the processing of individual claims for damages arising out of the first Gulf war.
– See also experience in arbitration and corporate investigations.

Dr Affaki has also written or edited a number of books, articles and case notes in relation to international litigation, including:

– “Jurisdictional Choices” (with Horacio Grigera Naon), ICC Publishing, publ. 755E.
http://store.iccwbo.org/jurisdictional-choices-in-times-of-trouble
– “Cross-border Insolvency and Conflict of Jurisdictions”, Bruylant, 2007.
– “Revisiting the Pari Passu clause”, in Sovereign Debt Management, R. Lastra and L. Buchheit (Eds.), OUP, 2014, pp. 39-49.
– “A financing is a financing is a financing …”, in Third Party Funding in International Arbitration, Cremades and A. Dimolitsa (Eds.), ICC Publ. 2013.
– “Du bon sens et du sens des mots: de la bonne interprétation de la clause pari passu”, in Essays in honour of Philippe Letourneau, Dalloz, 2007.
– “ La Commission d’indemnisation des Nations Unies: trois ans d’épreuve au service du règlement des différends internationaux ”, Droit et pratique du commerce international, Vol. 20, No.3, 1994, pp.471-517.
– “The United Nations Compensation Commission: a new era in claims settlement”, Journal of International Arbitration, [1993], Vol.10–No.3, pp.21-57.

Download complete list of publications in pdf.

He is also a frequent speaker or moderator in international conferences on topics relating to cross-border litigation.

 JurisdictionalChoicesTimesTrouble