International Litigation – Tunisia – Rahma Meddeb

Our firm, Medlar Lawyers & Legal Advisors (“MEDLAR”), is a full-service business law firm. It provides comprehensive legal assistance across various practice areas of Tunisian business law, including business litigation, tailored to meet the needs of our clients across multiple industries, such as the commercial, employment and corporate sectors. Our experienced team of attorneys is committed to delivering clear, effective solutions that address the complexities of each case.

We represent legal entities (e.g. companies, financial institutions, not-for-profit organisations) and individuals across various industries, each with unique circumstances and challenges.

At MEDLAR, we believe that every dispute and client is unique. We understand the legal and business contexts in which our clients operate, along with their immediate and long-term goals. This drives our approach to litigation and dispute resolution, ensuring effective and successful outcomes.

We support clients at every stage of a dispute, from initial assessment and strategic planning to discovery, resolution negotiations and court proceedings.

When a potential dispute arises, our approach begins with a thorough understanding of our clients’ objectives and challenges. Then, we look at the case from all angles and consider the commercial aspects of the situation to help clients determine whether to negotiate a settlement or escalate the dispute. If pursuing a settlement is the best way forward, and advantageous, we represent clients in negotiating the best possible outcome.

We believe in maintaining open lines of communication. Our clients receive regular updates and insights, ensuring they are sufficiently informed to make strategic decisions throughout the litigation process.

We collaborate closely with our clients to align our legal solutions with their business goals, addressing immediate needs while supporting long-term success. With deep expertise and a commitment to transparency and integrity, we manage complex litigation with precision – earning our clients’ trust throughout the process.

We are currently focused on employment, commercial and corporate litigation. Our workflow remains strong, with several cases scheduled for judgement by the end of 2024 and throughout 2025.

In our litigation practice, we follow a clear and structured process. From case assessment to trial representation, our approach is always tailored to address the specific needs and objectives of each client, ensuring we deliver effective legal solutions. Moreover, we provide regular updates to keep our clients informed at every step, discussing developments and strategy adjustments as needed. If the case requires it, we collaborate with trusted experts (e.g. tax experts) to support the client position with specialised insights.

Currently, we work with a diverse range of clients, including small to medium-sized enterprises, holdings, financial institutions and individuals across various sectors. Our clients typically seek assistance with commercial disputes, employment matters, as well as contract-related issues. For example, we recently represented an international construction company before the Tunisian labour court regarding the termination of its executive manager, who contested the termination and claimed severance for unfair dismissal.

The main challenge was to contest the jurisdiction of the labour court over the case, and to demonstrate that the relationship between the executive manager and the company should not be governed by Tunisian employment law, despite the existence of an employment contract.
The case was resolved through a court judgement in our client’s favour. This outcome confirmed MEDLAR’s legal position and provided a clear resolution, safeguarding our client’s interests.

We are currently most active in commercial and employment litigation, along with alternative dispute resolution (ADR) methods, mainly mediation.

In commercial litigation, we handle cases related to contract breaches and debt recovery. The frequency of these cases has increased due to the growing complexity of business operations, combined with changing market dynamics.

In employment litigation, we handle such matters as unfair termination, breach of duty and employee misconduct.

We also offer mediation as an ADR method, particularly for commercial and shareholders’ disputes and employment conflicts involving top management employees, wherein preserving relationships and confidentiality is essential. Mediation provides several advantages, including greater flexibility, control over outcomes, as well as tailored solutions that address the specific needs of all parties. Furthermore, mediation ensures that sensitive information remains private, safeguarding the reputation and interests of the parties involved. We believe that the increasing preference for mediation reflects the trend towards quicker, cost-effective alternatives to court litigation.

Our expertise allows us to deliver pragmatic solutions that are closely aligned with our clients’ business objectives. By taking the time to understand their challenges and goals, we develop strategies that ensure the delivery of effective legal solutions.

Although ADR methods like mediation and arbitration are valued for their efficiency and confidentiality, some clients and circumstances choose a formal litigation process. These clients often include:

1. Companies with the resources to engage in litigation, who may prefer formal court proceedings – especially when internal policies require it, or when establishing a legal precedent is essential for their reputation and standing.

2. Clients with solid evidence: when clients have strong evidence supporting their claims or defences, they may opt for litigation, trusting that the court judgement will rule in their favour.

The decision to pursue litigation or ADR depends on the specific aspects of each case, such as the intended outcomes, the nature of the dispute and the client’s strategic objectives. By considering these factors, MEDLAR prepares its legal strategies to effectively align with our clients’ needs.

Judicial system (i.e. courts) remains the most widely used method for dispute resolution in Tunisia.

However, since the enactment of the Arbitration Code on April 26th, 1993, arbitration has gained increasing popularity as an ADR method, particularly for commercial disputes, due to several advantages – such as confidentiality, limited disclosure requirements and time efficiency.

Tunisia hosts several institutions specialising in dispute resolution, including arbitration and mediation. These institutions play essential roles, not only in facilitating the resolution of disputes, but also in overseeing and supporting firms that offer these services.

Among them, the Tunis Mediation & Arbitration Center (“CCAT”) stands out as a leading platform for resolving commercial and civil disputes outside the traditional court system via ADR mechanisms.

CCAT provides a structured framework for arbitration, enabling firms to guide clients through the process efficiently, ensuring timely dispute resolution while safeguarding their interests.

In addition to its case management services, CCAT offers professional training programmes for lawyers, arbitrators, mediators and other practitioners. These programmes build expertise in ADR by covering legal aspects of arbitration, negotiation strategies, as well as case management techniques.

Cross-border litigation can be quite complex and challenging because of the differing legal systems, cultural differences and language barriers involved. As a result, it requires specialised legal expertise to effectively navigate the process and achieve a successful outcome.

Cross-border litigation presents a set of challenges that can complicate legal proceedings and impact the strategies employed by firms. Here are some of the key challenges:

• Determining jurisdiction: a key challenge lies in determining the appropriate court with jurisdiction over the case. Jurisdictional rules vary across countries, often leading to disagreements about the proper competent jurisdiction for resolving the dispute.

• Differing legal systems: procedural rules and jurisdictional frameworks vary from country to country. Each jurisdiction has its own approach, which can include variations in laws, procedures and standards for evidence. These variances can lead to conflicts between legal principles, making case strategy more complicated. Managing jurisdictional conflicts, complying with foreign regulations and understanding the evidentiary and procedural standards of various legal systems are essential for building a strong case.

• Cultural nuances and language further complicate the process, requiring clear communication and careful coordination among all parties involved. Language differences can create significant challenges in communicating, translating documents and presenting evidence. Misinterpretations can lead to misunderstandings that might affect the outcomes of cases. Therefore, we must ensure that all legal documents and testimony are accurately translated by certified translators, though this can increase both the time and costs associated with litigation.

• Cross-border recognition and enforcement of judgement: having a favourable judgement in one jurisdiction does not guarantee easy enforcement in another. Some countries may not recognise foreign judgements, and obtaining enforcement often involves complex and time-consuming procedures.

• Complexity of gathering evidence: obtaining evidence from foreign jurisdictions can be complicated due to local laws that may limit access to specific documents or information. Each country often has distinct privacy and data protection standards, which can affect what can be disclosed. Also, legal cooperation among countries can vary, impacting the ability to gather evidence efficiently and effectively.

Despite the above challenges, we believe that one of the most rewarding aspects of cross-border litigation is the chance to work with legal professionals from other countries and legal systems. Collaborating with local counsel offers valuable insights into regional laws, procedures and cultural practices, helping us better understand and manage complex disputes.

In addition, the constantly changing nature of cross-border litigation means there is always something new to learn. This requires us to adopt innovative and strategic approaches to develop effective solutions that protect clients’ interests.

Our firm has not yet seen any litigation case that may be formally classified as ESG-related. In Tunisia, ESG litigation is not defined within a specific regulatory framework, and is generally limited to traditional labour disputes and environmental matters.

At present, we do not observe a significant rise in environmental litigation. However, this may change with (i) the increased awareness of ecological issues and concerns regarding climate change and environmental degradation, particularly related to pollution from industrial activities; and (ii) the anticipated promulgation of a new Environmental Code, which aims to consolidate the various legislative, regulatory and institutional texts that have governed the environment over the past 30 years.

We believe that exchange of knowledge through publications and conferences is essential to the litigation community. It keeps professionals informed about the latest developments in laws, regulations and case law. Sharing insights on successful litigation strategies, trial techniques and case management helps practitioners refine their approach and adopt best practices that have proven effective.

Networking events also promote collaboration. Many domestic cases require expertise across differing fields, such as environmental law or corporate governance, and interdisciplinary events help practitioners work together more effectively. In cross-border cases, collaboration with foreign law firms is often necessary, further highlighting the importance of international exchange.

These platforms and networking events create opportunities for practitioners to connect, fostering relationships that can lead to collaborations, referrals and mentorship opportunities. These connections are invaluable for professional growth and knowledge exchange.

Currently, there are no significant new or pending developments affecting our litigation work. However, we remain attentive to any future changes in legislation, case law, industry and best practice across various sectors – and are prepared to adjust our processes as needed to maintain compliance and provide the best possible service to our clients.