This article is an extract from GTDT Appeals 2022. Click here for the full guide.
The procedure for appealing adverse decisions is an essential component of the civil justice systems in most countries. A decision by a court of first instance usually produces a winner and a loser, and the losing party will frequently examine its options for review of that decision in the appellate courts.
For commercial or business disputes in which substantial amounts of money or other valuable rights are at stake – the cases that are the focus of this book – the legal systems in most countries provide for some form of appellate review as a matter of right. In addition, many jurisdictions have several levels of appellate review, with the higher courts exercising discretion over the cases they review.
This book aims to introduce the appellate systems in a number of different countries. The focus is on appeals in high-value commercial disputes resolved in the main civil courts of first instance (trial courts) in a country’s national or federal system. Appeals of the decisions of arbitral tribunals, regulatory agencies, specialist tribunals and local courts fall outside the scope of the book. So, too, do appeals involving administrative, criminal and family matters.
Some recurring issues in appellate practice include determining which decisions or rulings are appealable; when and where an appeal may (or must) be filed; and what deference, if any, the reviewing court will give to the judgment of the trial-level adjudicator. Practical considerations include limits on the form and content of written submissions, whether there will be an opportunity to present oral argument, and the scope of the issues that will and will not be considered by an appellate tribunal.
To help elucidate these and other issues, this volume presents a series of questions concerning topics that regularly arise in commercial or business appeals. Experts in each country have responded to these questions and have provided an overview of the appellate process in their jurisdiction. Those interested in learning more are encouraged to contact the chapter authors or other attorneys in the jurisdiction.
Each chapter focuses on a specific country and includes an overview of the appellate tribunals in that country’s national court system, as well as any significant special or local tribunals of which litigants should be aware. Each chapter likewise previews the most important appellate rules, timings and documentation requirements. The chapters also identify how to determine which rulings are appealable, and summarise the limitations on the introduction of new evidence and arguments.
The chapters address issues that frequently arise at the outset of an appeal, such as securing the judgment and obtaining an injunction or stay. They also summarise the orders that may be issued at the conclusion of the appellate process (for example, whether the appellate courts in a particular country issue reasoned decisions or opinions explaining why an appeal has been sustained or rejected).
In addition, these chapters address financial aspects of the appellate process, including attorneys’ fees, third-party financing and settlement during an appeal. Each chapter discusses what happens if an initial appeal is unsuccessful – specifically, whether another level of appellate review is available.
Finally, as this volume was published during the covid-19 pandemic, each chapter addresses how appellate rules and procedures have been interpreted or modified to accommodate temporary limits on court and counsel alike.
As the chapters illustrate, appeals are different to trials in every jurisdiction. Appeals are usually heard by a judge (or, frequently, several judges) without the involvement of a jury or laypersons. There are often restrictions on the factual and legal points that can be made. The submissions, both written and oral, tend to be stylised and must conform to both formal requirements and customary practice. The focus in an appellate proceeding is on whether an error was committed, rather than which party should prevail.
Indeed, appellate practice is sufficiently different to trial-level litigation that in many jurisdictions a specialised appellate bar, either formal or informal, has arisen. Companies, organisations and individuals considering an appeal (or being forced to defend an appeal) are advised to consult with an attorney with relevant experience in the appellate court system involved.