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For a variety of reasons, commercial disputes are on the up. Parties that find themselves embroiled in a dispute have several courses of action available. Litigation is of course one method. Though it is considered expensive and time consuming, it can offer parties, depending on the case and jurisdiction, a relatively straightforward means of resolving their differences. But beyond that, arbitration and other forms of alternative dispute resolution (ADR) have, in recent decades, become the ‘go to’ option for many disputes.

UNITED STATES

Winston & Strawn LLP

“One of the trends I have been watching closely has centred around force majeure clauses. As a result of the February 2021 historic winter storm, large swaths of the US lost power. Many areas, including Texas, experienced record-setting, sub-freezing temperatures over several days. In the aftermath of that devastating winter storm, there were a large number of lawsuits filed regarding whether suppliers in the energy industry properly invoked the force majeure provisions of their contracts. Many of these cases are still being heavily litigated today, and we are just now beginning to see the first opinions being handed down by the courts regarding the validity of these force majeure declarations.”

ARGENTINA

Marval O’Farrell Mairal

“The energy sector has historically been one of the main sources of disputes in Argentina, but over the last few years this trend has deepened. One of the main drivers of this increase is related to the energy transition. As Argentina continues to develop its energy resources, the shift to cleaner technologies carries an increased risk of conflict because of different risk factors, including the design and delivery of new technologies and the entry of new players into the market. This is particularly evident in a heavily regulated market such as Argentina.”

UNITED KINGDOM

Brown Rudnick

“Recent global events over the past two years are driving a wave of English litigation and the maturing of certain industries has also caused an uptick in sector-specific disputes. The effects of the coronavirus (COVID-19) pandemic remain strong and, as some expected, public procurement-related contracts are proving to be a source of litigation and are unsurprisingly capturing public attention. The UK government’s Department of Health and Social Care filed a £130m claim against PPE Medpro Limited for breach of contract and unjust enrichment in relation to the supply of surgical gowns, which is part of a wider controversy of procurement and government contract awards during the pandemic to companies with allegedly close political ties.”

INDIA

Shardul Amarchand Mangaldas & Co

“In our experience, infrastructure projects and the construction space have given rise to a significant number of disputes in the last 12-18 months. With the onset of the coronavirus (COVID-19) pandemic, and related delays to project completion, cost overruns and financing costs, courts were flooded with commercial disputes involving the application of force majeure clauses, invocation of bank guarantees, termination of contracts, imposition of liquidated damages, and so on. We have also seen an increase in shareholder disputes, including post-M&A disputes relating to mismanagement, indemnity claims and the preservation of shareholder value.”

SINGAPORE

Ashurst

“Following the earlier relaxation of rules restricting the use of third-party funding, the Legal Profession (Amendment) Act 2022 came into force on 4 May 2022, permitting lawyers and their clients to enter into conditional fee arrangements (CFAs) in relation to arbitrations and certain court proceedings. CFAs are agreements in which lawyers receive full or partial payment of their legal fees only in specified circumstances, such as where the client’s claim succeeds. CFAs provide parties with the opportunity and incentive to pursue meritorious claims and, as fees under a CFA are dependent on the outcome, may discourage weak or frivolous ones.”

HONG KONG

Quinn Emanuel Urquhart & Sullivan LLP

“Ongoing volatility in the crypto market has resulted in a surge of arbitrations being filed globally, including in Hong Kong. Many early crypto agreements, with the largest exchanges, contained built-in arbitration agreements that wrote in Hong Kong as the seat. Moreover, in the past year, the Hong Kong government has further relaxed trading regulations in a bid to signal that it is a crypto-friendly jurisdiction. Very recently, the Hong Kong court confirmed, in Gatecoin Limited (In Liquidation), that cryptocurrency assets are ‘property’ under Hong Kong law, and this means they are capable of forming the subject matter of a trust.”

SAUDI ARABIA

EKP

“In the past 12-18 months, commercial disputes in Saudi Arabia have seen significant developments due to changes in the legal landscape and economic growth. Historically, commercial litigation was seen by Shariah courts, which was the main method of resolving disputes. However, the government has modernised the legal and judicial systems which led to the creation of specialised commercial courts and the introduction of the Commercial Courts Law, which streamlined the commercial court system and encouraged alternative dispute resolution (ADR).”

UNITED ARAB EMIRATES

Gibson, Dunn & Crutcher LLP

“It has been a busy time for the disputes community in the United Arab Emirates (UAE). We have seen a marked increase in M&A activity since the coronavirus (COVID-19) pandemic, and in turn, M&A-related disputes arising out of warranties, indemnities and post-completion accounts. With high oil & gas prices, economic activity is booming, and we are seeing a large number of oil & gas disputes in the region, both onshore and offshore, and covering joint venture disputes, operating and management disputes and shareholder disputes. We are also seeing many major infrastructure and construction disputes.”

SOUTH AFRICA

Herbert Smith Freehills

“Corruption, both in the private and the public sectors, continues to draw attention. In 2022, there was a significant focus on enforcement action against business and economic crime, after the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State concluded its investigation. In addition, the cryptocurrency and crypto-asset industries saw a host of disputes pertaining to frauds and bankruptcies of cryptocurrency exchanges.”

CONTRIBUTORS

Ashurst

Brown Rudnick

EKP

Gibson, Dunn & Crutcher LLP

Herbert Smith Freehills

Marval O’Farrell Mairal

Quinn Emanuel Urquhart & Sullivan LLP

Shardul Amarchand Mangaldas & Co

Winston & Strawn LLP