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Litigation, arbitration and other forms of alternative dispute resolution (ADR) each offer their own unique advantages and disadvantages, and it behoves parties to a dispute to select the right form of dispute resolution to suit their needs. As such, it is vital that parties give due consideration to these matters as early as possible – when drawing up commercial contracts. No party wants to think about the possibility of becoming embroiled in a lengthy and expensive dispute, but it is crucial that commercial contracts are carefully drafted to include a dispute resolution clause. While it may be tempting to opt for a ‘boilerplate’ agreement at the eleventh hour, ultimately such an agreement may do more harm than good. Companies should seek specialist external advice when drafting contracts to ensure that dispute resolution is addressed appropriately, particularly if the parties wish to remain on good terms moving forward.

ARGENTINA

Marval O’Farrell Mairal

“Over the last few years, Argentina has taken significant steps toward becoming an arbitration-friendly jurisdiction. This trend is evidenced by two fundamental milestones. First, the Argentine Congress updated the legal framework applicable to domestic and international arbitration with the enactment of the Argentine Civil and Commercial Code and the International Commercial Arbitration Law based on the UNCITRAL Model Law, with few modifications. Second, state courts have accompanied this pro-arbitration movement with several rulings that have interpreted this new framework in a friendly manner.”

UNITED KINGDOM

Quinn Emanuel Urquhart & Sullivan LLP

“The most widely publicised market challenges are generally attributed to Brexit-related issues. Many feared that, post-withdrawal, the UK would lose its status as one of the world’s pre-eminent centres for international dispute resolution. While this outcome appears to have not eventuated thus far, the English disputes market still faces significant challenges in the wake of withdrawal from the European Union (EU). This may have consequences in the insolvency disputes market. The UK no longer has access to the recast European Insolvency Regulation (EIR) which provided clear processes for the recognition of foreign insolvency proceedings within the EU.”

REPUBLIC OF IRELAND

Mason Hayes & Curran LLP

“The main challenge in dealing with commercial disputes in Ireland is the possible delay in getting your case to trial. The Irish judiciary and the Courts Service responded well to the challenges brought about by the coronavirus (COVID-19) pandemic, moving quite quickly to remote hearings for appropriate cases. However, despite the adoption of new technologies there is a backlog of cases to be determined. While this backlog will no doubt be cleared in due course, depending on the nature of the commercial dispute, the backlog is currently a factor that has to be taken into account at the commencement of any dispute.”

AUSTRALIA

Norton Rose Fulbright Australia

“Australia is coming to the end of a wave of disputes arising out of the construction and operation of major resources projects, particularly in the oil & gas sector. The next wave of disputes relates to decommissioning older projects and the construction of new renewable energy projects. We are seeing an increase in environmental, social and governance (ESG) disputes related to climate change, company disclosures and corporate misconduct. These have arisen from shareholder activism and recent royal commissions which have put the spotlight on corporate behaviour.”

UNITED ARAB EMIRATES

Horizons & Co

“From a local law firm perspective, we have seen a significant rise in litigation before the onshore federal courts, across the United Arab Emirates (UAE). A noticeable upward spike is discernible in commercial lease terminations due to the ongoing effects of the coronavirus (COVID-19) pandemic, as well as an equally noticeable rise in shareholder disputes and contractual terminations cases across various industry sectors. Lately, there has been a marked increase in the number of construction-related disputes, with many main contractors complaining of lack of payments and unlawful terminations of their respective contracts.”

SOUTH AFRICA

Herbert Smith Freehills

“Delay, interruption and contractual non-performance largely caused by factors related to the coronavirus (COVID-19) continue to feature prominently in South African disputes. This has also had a direct impact on the number of companies facing commercial hardship, leading to an increase in liquidation and other business rescue proceedings, although the position in this regard appears to be improving. Corruption in the public sector continues to draw attention, and has been used by several unsuccessful tenderers as the basis for a judicial review of the appointment of successful bidders.”

CONTRIBUTORS

Herbert Smith Freehills

Horizons & Co

Marval O’Farrell Mairal

Mason Hayes & Curran LLP

Norton Rose Fulbright Australia

Quinn Emanuel Urquhart & Sullivan LLP