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Since commercial disputes can surface at any time, it is imperative that parties consider the potential implications. Though it may seem counterintuitive, parties must prepare for potential conflict even when they are cooperating. Drafting a sound dispute resolution clause at the outset of a business relationship can save time and cost in the long run by expediting the dispute resolution process. While litigation has much to offer, alternative dispute resolution (ADR) methods, most notably arbitration and mediation, have increased in popularity. A number of factors, such as the neutrality and enforceability offered by arbitration, are favoured by parties.

UNITED KINGDOM

Nick Lees

Walker Morris LLP

“Since the General Data Protection Regulation (GDPR) came into force last year, consumers have become increasingly aware of their status as data subjects and emboldened in relation to the exercise of their rights. For example, we are seeing data subject access requests being used tactically, both prior to and alongside the litigation process. While the floodgates have not yet opened to US-style class actions in data breach cases, this is an emerging threat highlighted by the Court of Appeal’s recent decision in the Lloyd v. Google case.”

FRANCE

Serge Gravel

FLV & Associés

“Lately, licensing, franchising and distribution arrangements have been generating international disputes. French Order No. 2017-303 of 9 March 2017 and French Decree No 2017-305 of 10 March 2017, both implementing European Union (EU) Directive 2014/104/EU, have set a comprehensive framework for the compensation of private damage caused by anticompetitive practices, and have supplemented the existing public rules and mechanisms by which the French administration was already empowered to impose sanctions.”

SWITZERLAND

Urs Weber-Stecher

Wenger & Vieli Ltd.

“According to recent statistics from the Swiss Chambers Arbitration Institution (SCAI), most of the disputes administered by it stem from the manufacturing or the commodity mining and trading industry, followed by financial services. The main subjects of the disputes administered continue to be the sale of goods, mergers and acquisitions (M&A), joint ventures and service agreements. This corresponds with the International Chamber of Commerce’s (ICC’s) statistics where construction and engineering account for roughly 23 percent of all cases, with manufacturing being a significant industry as well.”

GERMANY

Britta Grauke

Weil, Gotshal & Manges

“Germany is heavily influenced by the litigation seen in relation to the diesel emissions scandal. This led to massive consumer litigation, in which consumers are asserting claims against car manufacturers based on the law of sale of goods and contracts. In addition, major securities litigation is pending, such as investors asserting claims against Volkswagen in connection with allegedly incorrect ad-hoc publications. Both kinds of litigation are asserted individually, as well as in sample or mass proceedings. The automotive sector by far sees the most disputes.”

AUSTRIA

Désirée Prantl

Freshfields Bruckhaus Deringer

“Recurring themes in commercial disputes include data protection, gender diversity and thirdparty funding. In recent years, we have seen an overall increase in disputes arising from financial transactions, business ownership and M&A transactions. The Vienna International Arbitral Centre (VIAC) records that, in 2018, arbitrations concerning a broad variety of disputes were administered, with disputes arising from general commercial contracts making up the biggest part, followed by disputes concerning wholesale and retail trade, business ownership, financial services and banking. From this can be inferred that the arbitration market is not dominated by a particular industry.”

CZECH REPUBLIC

Jan Dobrý

Clifford Chance

“Traditionally, the largest number of disputes have been in the construction sector, especially infrastructure construction. Other common disputes relate to commercial leases. However, these are often on a much smaller scale in terms of the value of the dispute. We are seeing more major disputes being initiated by insolvency trustees outside of insolvency proceedings in order to have the assets returned to the insolvency estate. On the opposite side of the spectrum, we can see an increasing trend in parties getting involved in disputes relating to uncommon topics which have often not even been tested before either civil or arbitration courts in the region.”

SWEDEN

Sandra Kaznova

Advokatfirman Hammarskiöld & Co
“Based on statistics from the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the top five types of disputes brought before the SCC last year concerned service agreements, delivery agreements, business acquisitions, shareholder disputes and construction. The strong increase in M&A insurance over the past few years may also eventually increase the number of disputes relating to these policies. In addition, the SCC is today the world’s second largest institution for investment disputes.”

SINGAPORE

Darius Chan

Norton Rose Fulbright (Asia) LLP
“China and India contribute to a significant number of disputes in the region. According to 2018 Singapore International Arbitration Centre (SIAC) statistics, the US topped the foreign user rankings in 2018 for the first time, with India and China both continuing to be strong contributors of cases to the SIAC over the past few years. The SIAC’s other top 10 foreign users were from a mix of common and civil law jurisdictions, namely the Cayman Islands, Hong Kong, Indonesia, Japan, Malaysia, South Korea and the United Arab Emirates (UAE) – attesting to the SIAC’s popularity among users globally, and not just regionally.”

AUSTRALIA

Colin Loveday

Clayton Utz
“Three major factors are currently influencing commercial disputes in Australia. First, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry prompted much media attention. There have been a large number of disputes commenced both during and after the Royal Commissioner delivered his report in February 2019. Second, increased regulatory activity, including investigations in the areas of financial services, competition and antitrust and product safety. This has led to regulatory prosecutions, penalties and follow-on class action activity.”

UNITED ARAB EMIRATES

Stuart Paterson

Herbert Smith Freehills

“The type of disputes we are seeing reflects the sectors of the economy that are most active – the many infrastructure, oil & gas and real estate projects in the United Arab Emirates (UAE) and across the region continue to generate a high volume of disputes. As economic growth is weak, we are also seeing a high volume of cases arising from distressed businesses across a range of sectors. We are also continuing to see several disputes between foreign manufacturers or brand owners against their regional agents and distributors. Domestic laws heavily favour local agents. Some of these agency arrangements have been in place for many years and are highly valuable.”

CONTRIBUTORS

Advokatfirman Hammarskiöld & Co

Clayton Utz

Clifford Chance

FLV & Associés

Freshfields Bruckhaus Deringer

Herbert Smith Freehills

Norton Rose Fulbright (Asia) LLP

Walker Morris LLP

Weil, Gotshal & Manges

Wenger & Vieli Ltd.