Commercial arbitration

January 2025  |  WORLDWATCH | LITIGATION & DISPUTE RESOLUTION

Financier Worldwide Magazine

January 2025 Issue

Arbitration continues to develop as the dispute resolution mechanism of choice for commercial entities across a range of business sectors. As disputes continue to rise, resolution through commercial arbitration – rather than litigation – offers disputing parties the certainty of a final, binding and enforceable decision. With an increasing burden on courts expected to lead to a rise in arbitration in 2025 and beyond, practitioners will remain busy handling increasingly complex commercial conflicts.

FW: Reflecting on the past 12-18 months, what key trends and developments do you believe have dominated the commercial arbitration space? Are you seeing any common themes between these disputes?

MEXICO

Venegas: In the past 12 to 18 months, we have seen a continued rise in energy-related disputes across various jurisdictions, particularly in Latin America and other regions where traditional and renewable energy sources are increasingly clashing within the same national systems. This is compounded by either direct state intervention or significant government interest in creating a reliable and sustainable energy framework. National policies and regulatory shifts aimed at balancing energy supply, environmental goals and economic considerations are a driving factor behind this surge in energy disputes. The complexity of these cases often stems from the tension between legacy fossil-fuel industries and newer renewable projects, with issues arising from regulatory changes, subsidies, environmental standards and government-mandated transitions to clean energy. Beyond energy disputes, we are observing a growing trend of foreign investors bringing investor-state arbitration claims based on denial of justice. These claims frequently centre on alleged corruption or unfair treatment by national courts, suggesting an increased willingness among investors to challenge state actions that compromise judicial fairness and transparency. This trend could become particularly significant in Mexico, where an upcoming judicial reform will overhaul the federal and local judicial system. The planned replacement of all judges, magistrates and even Supreme Court justices within three years – through direct and popular election – may raise concerns around judicial stability and impartiality. Foreign investors may increasingly turn to arbitration to seek recourse if national reforms impact the reliability or fairness of local courts.

SAUDI ARABIA

Gravel: There is broad consensus within the international business community that international arbitration is by far the most appropriate mechanism for solving both international business disputes and international investment disputes involving the KSA. KSA authorities have come to recognise that reality, the impact of which is compounded in the context of the large industrial, infrastructure and real estate projects which are being implemented in the KSA, and for which foreign knowhow and investments are clearly welcomed. Accordingly, KSA authorities have undertaken a series of major reforms, the last one being the new Shariah-based civil transaction law adopted in 2023. Saudi authorities are thus doing their very best to improve the legal landscape and facilitate the conduct of international arbitration proceedings in the KSA. Actually, one understands that the number of international arbitration proceedings taking place in, or involving, the KSA is regularly increasing. However, it is impossible to determine any common themes between the various arbitrations recently conducted.

UNITED KINGDOM

Price: Trends and developments depend on the industry sector and the jurisdiction, but one thing we are seeing more of across the board is an increase in disputes with a sanctions-related element. Performance of contractual obligations can be hindered by the designation of a party as a sanctions target or by the imposition of a restriction on work to be performed under a contract. These situations are increasingly leading to complex disputes. Many of these disputes are to be resolved in arbitration, where further complications can arise – for both the parties and the arbitrators – because of the operation of the sanctions, particularly where one of the parties is a sanctioned person.

SOUTH AFRICA

Ripley-Evans: One key trend is the increasing tendency of African parties to use arbitration for dispute resolution. According to the London Court of International Arbitration’s (LCIA’s) 2023 casework report, cases involving African parties doubled compared to 2022, rising from 4 percent. Similarly, the International Chamber of Commerce (ICC) noted an increase in the involvement of parties from Sub-Saharan Africa and North Africa, up 5 percent and 2.8 percent respectively, compared to the previous year. The growing caseload of the Arbitration Foundation of Southern Africa (AFSA) reflects this trend, indicating its rising status as a preferred international arbitration institution within the continent. Its services have reached parties in 54 jurisdictions, including Brazil, Australia, Bermuda and India. Additionally, parties from established arbitration hubs such as the UK, France and the US are increasingly opting for AFSA International. AFSA’s case management covers various sectors. From 2013 to 2023, it handled cases with 32 percent originating from the financial services sector and over 20 percent from the mining sector. Other significant sectors include industrial and manufacturing, which accounted for 11 percent of cases, commodities trading, which accounted for 9 percent, and energy and resources, which saw a 5 percent increase. Recent developments in the extractive sector suggest a potential rise in mining-related referrals, and the renewable sector continues to generate disputes, many of which are resolved through the courts.

HONG KONG

Rhie: Reflecting on the past 12 to 18 months, I have observed a number of trends in the arbitration space. First is the use of artificial intelligence (AI) technologies. Even beyond arbitration, this is obviously a very fast moving and important issue. We see the benefit of it and expect there to be an upward trend of AI technologies being used in commercial arbitration. Second is arbitration financing. There is a growing trend of third-party funding for arbitration across different jurisdictions. We expect this trend will continue to grow. A third trend is broken deals and post-M&A disputes. There has been an upward trend in these types of disputes in the region.

CANADA

L’Hirondelle: While the resolution of disputes through commercial arbitration rather than through litigation in the courts continues to rise in Canada, arbitral institutions do not publish annual reports on their ongoing cases or trends. Even if they did, these metrics would not include the considerable number of decisions resulting from ad hoc arbitrations. Based on our experience and review of available data, the most common disputes subject to arbitration proceedings in Canada – domestic and international – involve contractual interpretation issues. In international arbitration they predominantly consist of construction and infrastructure disputes, while in domestic arbitration, they involve corporate law, shareholder and joint ventures disputes. Over the last year, Canadian courts have been asked to rule on a few recurring themes relating to unconscionability of arbitration agreements and procedural fairness. By and large, Canadian courts continue to show resolve in ensuring that arbitration agreements are enforced.

SINGAPORE

Palmer: Commercial arbitrations frequently arise from interruptions to business. Such interruptions may result from any number of causes, however currently we are seeing three recurring sources of dispute. First, we continue to see disputes arising from the ‘tail-end’ of the coronavirus (COVID-19) pandemic. The ripple effects of delays and of the spike in commodity prices caused by the pandemic are still being felt, especially on large-scale infrastructure projects. Second, we are seeing disputes caused by heightened geopolitical tensions, especially in the energy sector. Sanctions regimes, as well as events in the Middle East, have increased the cost and complexity of transactions for oil and gas businesses, leading to disputes throughout energy supply chains, including in Asia-Pacific. Finally, digital transformation is increasingly featuring in the commercial arbitration space. We are seeing an increasing number of technology-related disputes, notably in the FinTech and electronic payments space, arising from the adoption of new and often still developing technology.

FW: What advice would you offer to parties on evaluating and preparing strategies when involved in arbitration proceedings? What general steps should they take from the outset?

SAUDI ARABIA

Gravel: Parties should agree to resort to international arbitration under the ICC Rules of Arbitration, with one or more arbitrators appointed in accordance with such rules. This is by far the preferred solution, one that will draw the least tensions and protracted negotiations. It would seem legitimate that the underlying business contract be governed by, and construed in accordance with, the local law where the project is to be implemented, namely Saudi law. The new Shariah-based civil transaction law adopted in 2023 is a major improvement in that context. If Saudi law is not accepted by a foreign party, then an alternative neutral foreign law should be envisaged which would favour neither party – for example English law or the law applicable in the Republic of Geneva, Switzerland. Or, as a last resort, Saudi law could be agreed upon, provided the parties undertake to grant to the arbitrators the power to decide ‘ex aequo et bono’ – also known in French as ‘amiable composition’ – that is, to decide in equity without having to refer to or apply any specific Saudi law provisions. Incidentally, one should observe that with respect to business law matters, as opposed to family law issues, Shariah principles are largely based on fairness and equity and embody common sense rules that Western business lawyers will come to understand and acquiesce to.

UNITED KINGDOM

Price: It is important for parties to spend some time and money up front to really understand the strengths and weaknesses of their position. Too many parties want to save costs by getting a preliminary view on limited budgets and then hope that the case might be settled or that if it cannot, the heavier costs can wait until later in the process. This is almost always a mistake, and leads to increased costs and worse outcomes. Being confident in your position always helps in efforts to leverage settlement and avoid an arbitration, and so this is time and money that is well spent.

SOUTH AFRICA

Ripley-Evans: Determining the likelihood of court intervention in arbitration is crucial, especially when choosing a seat on the African continent. Court intervention poses a significant threat to both the arbitration procedure and the ultimate enforcement of an award. Parties must also assess the financial stability of the opposing party and their ability to pay an adverse cost order. Typically, security for legal costs, including arbitration expenses, is provided through a bank guarantee or payment into escrow. While claimants can, in theory, request security for their claims, such a practice remains rare, particularly in Africa. It will be important to determine whether a counterparty is being funded by a third party. While this may support an application for security for costs, it is also an important factor in clearing conflicts with the tribunal. Other important considerations include assessing whether the counterparty to the dispute is experienced in international arbitration, as a truly efficient process will require the active participation of both parties and the tribunal.

HONG KONG

Rhie: At the onset of any arbitration, it is important to look back to front. Enforcement of any award comes obviously at the end of the arbitration process but one needs to look at it upfront. This will significantly impact on evaluation and strategy of the case. Therefore, from the outset one should look at how the courts of the seat of arbitration – which will have jurisdiction for set aside applications – deal with arbitration-related applications and investigate which jurisdiction is likely, if successful, to be the place of enforcement of an award.

CANADA

L’Hirondelle: A thorough understanding of the arbitration agreement and its governing rules, if any, is instrumental in ensuring the arbitration commences and proceeds smoothly. This includes, among other things, the method of initiating the arbitration, the notice period, provisions permitting or restricting document production and pre-hearing discovery, the submission deadline and the place and seat of arbitration. Strategically, parties should evaluate and identify any qualifications or expertise required for an informed decision and best result. From the outset, parties should ensure that they have the necessary resources available, including personnel and key witnesses, to effectively manage the arbitration process. Lastly and most importantly, parties should stay organised and maintain documentation by keeping thorough and organised records of all documents, communications and evidence related to the arbitration.

SINGAPORE

Palmer: In arbitration, preparation is key. For example, before arbitration proceedings are even commenced, parties should seek to build up a full paper trail of records pertaining to the potential dispute. Such a paper trail will inevitably prove useful down the road to bolster the party’s position in any proceedings or, importantly, in any settlement negotiations. In this regard, we would always advise parties to be in touch with their disputes lawyers sooner rather than later, when a potential dispute arises. Early involvement of arbitration specialists can often result in cost and time savings down the road, as well as ensure compliance with any contractual preconditions to claims. If confidentiality is important to the matter, involvement of external counsel may also prove useful in establishing privilege over documents, although this will depend in part upon the legal system concerned.

MEXICO

Venegas: The best starting point for any party in arbitration is a thorough, critical assessment of the commercial relationship leading to the dispute. This involves identifying all potential weak points that could impact the case’s strength and prospects for success. An effective legal strategy relies on deep familiarity with the facts and any communications – emails, phone calls or other exchanges – related to contract performance. Conducting detailed interviews with all relevant officers early on is essential to uncover crucial details that may not be immediately apparent from documentation alone. Next, identifying technical or financial aspects that may require expert analysis is essential. Engaging experts early in the process provides the opportunity to clarify the case’s strengths, determine realistic damages, and develop a strategic foundation based on solid technical or financial evidence. The insights of a credible expert can be invaluable not only in framing damages but in presenting the case persuasively to the tribunal. Finally, selecting the right arbitrators is critical. The legal team should consider potential tribunal candidates based on applicable law but also on the ideal qualities that will serve the case best. Look for arbitrators who are not only respected in the field but who also have specific knowledge and experience relevant to the nuances of the dispute. This combination of expertise and credibility can make a significant difference in how effectively the tribunal understands and adjudicates the case.

FW: In your opinion, how might the processes and protocols for conducting commercial arbitration be improved to enhance aspects such as speed, cost and efficiency for the benefit of the parties involved?

UNITED KINGDOM

Price: Many large commercial arbitrations tend to follow a standard procedure of written pleadings accompanied by expert evidence, witness statements and documentary evidence, a round of document production and then a hearing. There are often then rounds of post hearing written submissions. The process can take a long time and it might be said that arbitration no longer has the speed advantage over court proceedings that many people assume.​ There is scope ​for this standard procedure to be more bespoke and to use the procedural flexibility of arbitration to produce a more efficient outcome. For example, in some cases, the issues in dispute can be narrowed hugely by taking a few key points and having the tribunal determine them as preliminary issues. Similarly, more or less document production is often appropriate – more for cases perhaps where there is an element of fraud or illegality, less or none where the issues are straightforward and mainly contractual. To achieve a bespoke procedure that is well suited to the particular dispute in question, parties need to know their case well from the outset, so they can persuade the tribunal a slightly different process would be better. The tribunal also needs to be on top of the case file early on. Again, these are arguments for upfront investment in the case.

SOUTH AFRICA

Ripley-Evans: Parties are encouraged to utilise the flexibility provided by the rules governing arbitration. Arbitral rules are intentionally designed to differ from the inflexible and rigid court rules, with an emphasis on promoting the fundamental principles of arbitration: speed and cost efficiency. Document production is a significant contributor to the overall cost of arbitration proceedings, especially when dealing with lawyers from common law jurisdictions. A key consideration at the onset of the proceedings is whether to proceed with pleadings or memorial style submissions. Memorials typically involve higher upfront costs and time, but offer an important opportunity to limit the document production phase. Additionally, effective use of Redfern Schedules can substantially reduce document production expenses. Related to document production is the issue concerning the role and rules applicable to evidence. Arbitration offers a unique opportunity to implement more practical procedures for the introduction of evidence, utilising international rules and guidelines rather than civil procedural rules. These international processes generally favour the inclusion of evidence, focusing on the weight to be given to the evidence, rather than ruling evidence inadmissible. This approach minimises interlocutory debates, resulting in a more streamlined process where evidence is easier to present at the hearing. The issue of ‘due process paranoia’ also continues to be a concern, particularly with less experienced arbitrators who may extend proceedings beyond what is necessary. Generally, tribunals possess broad authority to award costs, which can be used to sanction parties responsible for unnecessary delays, but this is not always the case, especially where parties have referred to civil taxation mechanisms for awarding costs.

HONG KONG

Rhie: Selected ways of improving how commercial arbitration is conducted include promoting the use of AI technologies and setting a protocol for it among arbitration practitioners. Parties can agree to adopt a centralised platform for document exchange and to go ‘paperless’ so that the process is streamlined. It is also beneficial to set a more stringent and hard time limit as to when an arbitration needs to be completed and to make it substantially difficult for any party to delay or derail the arbitration process without legitimate reasons. Parties should also actively limit the scope of discovery and document disclosure.

CANADA

L’Hirondelle: To promote speed and avoid delays in arbitration, parties should adopt an arbitration agreement that identifies the applicable rules or contains a streamlined process for the submission of documents, timelines for responses and the conduct of hearings. To ensure the arbitration runs smoothly, scheduling early case management can help identify the key issues, set a timetable and require parties to agree on procedural matters early in the process. Technology plays a significant role in arbitration matters through the use of electronic filing systems, communication and the utilisation of videoconferencing for hearings. This increases parties’ flexibility and can reduce cost on things such as travel and accommodation. More recently, arbitral institutions have discussed the implementation of AI to use a predictive coding algorithm to identify documents responsive to an order of a tribunal.

MEXICO

Venegas: International commercial arbitration has evolved into a complex and often costly process, largely due to parties’ high expectations and attorneys’ exhaustive efforts to cover all possible avenues for success. One of the most pressing issues facing arbitration today is the tendency of parties to overload the record with vast amounts of documents and excessive factual allegations, many of which are only tangentially related to the core dispute. This approach can obscure the central issues, prolong proceedings and inflate costs unnecessarily. To address these challenges, arbitration could benefit from protocols that encourage a focused, disciplined presentation of evidence. For example, guidelines could be put in place to limit the volume of documentary evidence and testimonies submitted, urging parties to streamline their submissions to what is genuinely essential. Arbitrators could be empowered to enforce stricter standards for relevance, thus helping prevent cases from becoming bogged down by peripheral matters. Additionally, arbitration centres might consider implementing preliminary hearings aimed specifically at narrowing the scope of the dispute early on. By identifying the most critical issues and establishing a clear roadmap from the outset, parties and arbitrators alike can work more efficiently, minimising diversions and reducing the time and resources required. Finally, setting clear timelines for each phase of the arbitration can help curb delays. This could include predetermined limits on briefing lengths, strict deadlines for evidence submission and early scheduling of hearings. By fostering a culture of conciseness, clarity and relevance, arbitration can strike a better balance between due process and efficiency, ultimately making the process more cost effective and accessible for the parties involved.

SINGAPORE

Palmer: Each dispute is different, and users of arbitration should make use of the flexibility afforded by the process. While complex and high-value disputes may warrant extensive written and oral submissions and witness and expert evidence, this need not apply in all cases by default. Institutional rules often provide for simplified procedures. For example, in its recent rules revision process, the Singapore International Arbitration Centre proposed a new fast-track streamlined procedure, which would apply to smaller-value cases. For arbitration counsel, innovative AI tools can be used to increase efficiency, helping with tasks such as legal research or document review, when large amounts of evidence must be considered.

SAUDI ARABIA

Gravel: Once parties have agreed to resort to international commercial arbitration, the next step is to determine the rules that will govern the proceedings. That choice is vital in terms of efficency of the arbitral proceedings. Parties may choose among several existing rules and institutions. The first that comes to mind in connection with a KSA project is the Saudi Center for Commercial Arbitration, which was created by the Saudi government in 2014 and began operating in 2016. Of course, the major disadvantage of this organisation is that foreign enterprises may be wary of its neutrality and object to it. One may contemplate relying on the LCIA. While based in England, the LCIA is broadly recognised and respected as an independent and neutral body in the world of international commercial arbitration. It should be noted that it is present in the Dubai International Financial Center, which is an astute initiative that may serve to bridge the cultural gap between Middle East and Western enterprises. The most truly international institution is the ICC International Court of Arbitration (ICC Court). The ICC Court is indeed the world business organisation of which most countries around the planet, including Saudi Arabia, are members. The ICC Court was created more than a century ago, in 1923, and has ever since administered international arbitration proceedings on a continuing basis. The best solution to ensure maximum efficency in arbitral proceedings is to resort to arbitration under the ICC Rules, as the proceedings, including the appointment of arbitrators and the scrutiny of awards, will be monitored and administered by the century-old ICC Court.

FW: What are the advantages of including arbitration provisions in commercial agreements between companies? What factors should parties address when doing so?

SINGAPORE

Palmer: Arbitration holds a number of key advantages over other forms of dispute resolution, especially for cross-border transactions or projects. In addition to procedural flexibility, it enables parties and their counsel to choose neutral arbitrators, with whom they are familiar and who have the right expertise for the dispute concerned. Arbitration proceedings typically are private – contrary to litigation in court, which often will be conducted in public. Finally, enforcement of international arbitral awards tends to be more straightforward than enforcement of foreign court judgments, as a result of the New York Convention. When including arbitration provisions in commercial agreements, parties should give particular consideration to their choice of seat. The seat is the legal ‘home’ of the arbitration and provides its supporting legal framework. Because of its importance, parties should specify the arbitral seat in their agreement to arbitrate. Popular and reliable choices include London, Paris and Singapore.

SAUDI ARABIA

Gravel: There are many highly strategic advantages associated with international arbitration proceedings. First and foremost, arbitration is by definition a contractual compromise. Indeed, each party to a cross-border dispute would normally very much prefer that the matter be decided by its own local courts – applying local law and using the local language. Thus, the two parties clearly have conflicting preferences and objectives, so some ‘neutral’ solution or approach is needed. Therefore, arbitration represents a natural compromise to which each party may willingly agree without granting any strategic advantage to the other party. Parties have a say in the selection of the arbitrators whose international business expertise may prove valuable. In other words, they are not forced to rely on state judges who, however competent they may be, usually have little or no international business experience, and are rarely familiar with foreign laws and conflicts of laws issues. Parties may also choose the place where the arbitration will take place, which choice may have far-reaching practical consequences, including for administrative requirements such as visas, and with respect to the procedural rules that will govern the proceedings.

HONG KONG

Rhie: One specific advantage of opting for arbitration in commercial agreements is confidentiality. Confidentiality refers to the fundamental principle, subject to certain exceptions, that no participants in the arbitral proceedings may disclose any documents and information, personal data or business secrets pertaining to the arbitral process, outside of the arbitration without the consent of the parties. This puts an arbitration outside the public arena and avoids attracting unwanted attention. In order to squarely preserve this, the confidential nature should be explicitly set out in the arbitration provision.

CANADA

L’Hirondelle: The cornerstone advantages of incorporating arbitration provisions in commercial agreements include privacy and confidentiality, speed, efficiency and flexible procedures, as well as the ability to choose decision makers with subject-matter expertise. At the drafting stage, parties must properly outline the disputes they intend to refer to arbitration. Parties must also specify the applicable law of the main agreement and of the arbitration agreement, which can cause unnecessary delays to the arbitration if not clearly defined. Furthermore, parties should consider whether they will proceed with an ad hoc arbitration or an institutionally-governed arbitration. The latter provides procedural rules that can assist the parties with a structured framework and administrative support. Other considerations include selecting the number of arbitrators, customising the process and including multitiered dispute resolution prerequisites to arbitration, which must be set out clearly to avoid uncertainty as to the compulsory nature of the steps.

SOUTH AFRICA

Ripley-Evans: One of the primary advantages of arbitration is the ability to appoint an arbitrator possessing expertise relevant to the specific nature of the dispute. This is particularly crucial in highly technical fields where specialised knowledge is essential for resolving complex issues. The high courts are currently experiencing significant caseload pressure, with trial dates being scheduled as far as three to four years in the future. Arbitration offers the opportunity for matters to be heard and resolved more expeditiously than civil litigation, without the lengthy appeals process. These considerations, along with the benefits of confidentiality and enforceability under the New York Convention, continue to make arbitration a preferred choice over litigation. There is a trend toward defining the profile of the arbitrator within the commercial agreement. However, predicting the precise nature of future disputes at the time of contracting is unrealistic. Therefore, it is advisable not to specify the arbitrator’s type in advance. Instead, selecting a reputable set of arbitral rules that include a clear mechanism for identifying and appointing an arbitrator when a dispute arises is recommended.

UNITED KINGDOM

Price: Arbitration is generally confidential, it can be flexible, and, because of the New York Convention, arbitral awards are easier to enforce abroad than court judgments. Parties should also think carefully about their choice of arbitrators and any preconditions to arbitration. Being able to choose arbitrators that really have expertise in a particular industry is a major advantage of arbitration and helps give the parties confidence in the process. Preconditions to arbitration are often found before arbitration clauses and if they are included then it is important they are complied with. Often obligations to negotiate, mediate or refer a dispute to adjudication before going to arbitration, create a lengthy and unhelpful prelude before the dispute is finally resolved. Parties should think carefully about whether and in what way they should include these types of provisions. Sometimes the right answer is to keep things simple. Generally, there is no need to include an obligation to negotiate – parties can do that whenever they want.

FW: What issues do you expect to dominate commercial arbitration over the coming months? Are you expecting to see a rise in commercial disputes leading to arbitration?

SAUDI ARABIA

Gravel: The practice of international arbitration involving the KSA is still a fairly new reality which is slowly progressing and evolving. International arbitration is an alternative dispute resolution mechanism which the KSA economy desperately needs to support the country’s modernisation objectives. However, one must recognise that arbitration is a Western concept which is not readily transferable into the Saudi legal landscape, if only because some aspects of that mechanism are in apparent contradiction with part of the Saudi millennial traditions and cultural background. It is therefore difficult to anticipate realistically how arbitration will unfold in the KSA over the coming months.

HONG KONG

Rhie: We are currently seeing and expect to continue to see a rise in international arbitrations arising from sanctions imposed by various different countries. This is due to the exponential increase in sanctions and countersanctions in the global landscape. For most commercial parties, sanctions will usually affect parties’ performance of a contract. An agreement that used to be capable of being performed at the time of negotiation may no longer be, due to, for instance, an export ban. It will also impact the willingness of parties to carry out an agreement, as some may find it no longer profitable to continue or utilise the impact of the sanctions to avoid continuing with the agreement.

SINGAPORE

Palmer: Consistent with current trends, tech disputes fuelled by the ongoing digital transformation can be expected to continue appearing. Similarly, geopolitical tensions around the world show no sign of abating. Any increased sanctions and technology export controls imposed on China by the US would likely lead to further disputes in a range of industries, including in the manufacturing and life sciences sectors. If technology transfers in and out of the People’s Republic of China are further limited in the future, businesses should ensure they have viable backup plans for their cross-border IP arrangements where there is a China nexus. Finally, as the energy transition continues to reshape our daily lives and the global economy, we expect to see a steady rise in disputes, as relatively new technologies continue to be deployed at speed and scale.

CANADA

L’Hirondelle: Notwithstanding the geopolitical crisis that has impacted Canada and the rest of the world over the last few years, we anticipate global warming issues to be on the rise in commercial arbitration in the near future. In addition, we expect that claims involving complex construction and infrastructure projects will continue to dominate the sphere of commercial disputes. This may especially be the case since, while it may be behind us, the pandemic did cause significant disruptions in commercial activities leading to breaches of contract, delays and non-performance issues. We expect arbitration to be a key forum to resolve such complex conflicts arising from force majeure claims, supply chain disruptions and changes in market conditions. Finally, as companies face increasing pressure to adhere to environmental, social and governance (ESG) standards, disputes may arise over compliance, reporting and the impact of ESG policies on business operations.

SOUTH AFRICA

Ripley-Evans: The increasing burden on the courts is expected to lead to a rise in commercial disputes being referred to arbitration in the near future. However, there is a risk that these arbitrations will be managed in a manner similar to high court processes – often following high court rules – presenting the same issues of delay and technical objections encountered in court proceedings. While arbitration allows parties to select their own arbitrator, it frequently limits one of the key procedural advantages: the ability to determine the appropriate procedure. The appointment of retired judges with limited international arbitration experience often exacerbates this issue. Furthermore, advocacy in arbitration remains predominantly led by barristers, resulting in hearing dates being scheduled to accommodate the busy schedules of party representatives and the tribunal, which often causes significant delays.

UNITED KINGDOM

Price: It is difficult to generalise, but disputes tend to materialise as economic indicators improve, and not at the moment of maximum economic pain. Commercial parties are usually more focused on their own survival rather than actively pursuing litigation or arbitration. But as things improve, as we saw with economies reopening after the pandemic, it is at that point more disputes start to come through the pipe. It is possible that as interest rates come down, there will be some correlation with an increase in disputes. But regardless of interest rates, we expect to see further disputes in some key areas in any event, such as sanctions-related disputes, and construction and infrastructure-related disputes, particularly given the huge focus around the world on upgrading often ageing infrastructure.

MEXICO

Venegas: In the coming months, we anticipate that energy and infrastructure disputes will remain prevalent, reflecting ongoing global and regional shifts toward sustainable energy and the complex challenges of infrastructure projects. Additionally, disputes are on the rise in other key sectors, notably telecommunications, transportation and hospitality. As these industries undergo rapid transformation, either through technological innovation or regulatory changes, commercial arbitration is becoming a favoured forum to resolve their unique, often cross-border conflicts. A significant factor likely to influence the arbitration landscape in Mexico is the expected overhaul of the judiciary. With impending changes that include replacing federal and local judges and magistrates, as well as a direct election for Supreme Court members, it is foreseeable that commercial arbitration will see increased demand. Small and medium-sized enterprises that previously relied on state courts may now prefer arbitration, seeking consistency and predictability amid these judicial reforms. This trend may lead to a more diverse range of commercial disputes being brought to arbitration, encompassing a broader array of industries and claim sizes. As a result, arbitration centres in Mexico and beyond will likely experience increased caseloads and may need to adapt protocols and procedures to effectively manage this surge while addressing the specific needs of different industries and dispute sizes.

Jonathan Ripley-Evans is a partner based in Herbert Smith Freehills’ Johannesburg office. He has extensive experience in alternative dispute resolution, arbitration and general commercial litigation. He is a fellow of the CIArb, is an AFSA accredited mediator and arbitrator, and has acted as mediator, adviser and counsel in mediations and arbitrations, both domestic and international. He specialises in the resolution of commercial disputes in a wide range of sectors including energy, mining, tourism, hospitality, property and engineering. He can be contacted on +27 10 500 2690 or by email: jonathan.ripley-evans@hsf.com.

Rob Palmer is an international arbitration partner based in the Singapore office of international law firm Hogan Lovells. He has a particular focus on dispute resolution in the construction, infrastructure and energy sectors and, having been based in Southeast Asia since 2003, is recognised as one of the most experienced international counsel active in the region. He can be contacted on +65 6302 2456 or by email: rob.palmer@hoganlovells.com.

Serge Gravel joined Lamartine Conseil in 2024 with a particularly recognised expertise in the field of international arbitration and cross-border acquisition transactions. In the field of international arbitration, his previous positions within the international business community, such as the BIAC/OECD and the International Court of Arbitration of the International Chamber of Commerce, among others, are key assets in cases handled by Lamartine. He can be contacted on +33 (0)1 40 69 70 00 or by email: serge.gravel@lamartine-avocats.com.

Robert Price is an international arbitration partner at Latham & Watkins in London. He advises clients on commercial arbitration, investor-state arbitration and commercial litigation. He has particular expertise in construction disputes, and has a specialist master of science in construction law from King's College London. He is a fellow of the Chartered Institute of Arbitrators (CIArb), a committee member of the CIArb London branch, and a member of the City of London Law Society’s specialist arbitration committee. He can be contacted on +44 (0)20 7710 4682 or by email: robert.price@lw.com.

Marco Tulio has advised and litigated for over 25 years in various areas of the law before judicial courts and arbitral tribunals. He has extensive experience in Mexican procedural law as well as experience handling arbitration proceedings under the arbitration rules commonly applied in Mexico and around the world, including the Arbitration Rules of the International Chamber of Commerce, the Rules of the American Arbitration Association, the Rules of the London Court of International Arbitration and the Rules of the Arbitration Center of Mexico. He can be contacted on +55 5206 7051 or by email: mtv@litredi.legal.

Lucy L’Hirondelle practises in Norton Rose Fulbright Canada LLP’s litigation and disputes group. Her practice covers a broad range of commercial litigation and dispute resolution matters, with an emphasis on the oil and gas industry, securities, D&O liability, internal investigations and employment litigation. She has experience in both domestic and international arbitration. She can be contacted on +1 (403) 267 8284 or by email: lucy.lhirondelle@nortonrosefulbright.com.

John Rhie is Quinn Emanuel’s managing partner in Asia. He is also the head of the international arbitration practice in Asia. He specialises in international arbitration, both commercial and investment treaty, as well as cross-border and international litigation and white-collar crime. In relation to international arbitration, he has acted as counsel and arbitrator in arbitrations under most arbitral institutions such as the HKIAC, ICC, ICSID, KCAB, LCIA, SIAC as well as ad hoc arbitrations around the world. He can be contacted on +852 3464 5602 or by email: johnrhie@quinnemanuel.com.

© Financier Worldwide

THE PANELLISTS

SOUTH AFRICA

Jonathan Ripley-Evans

Herbert Smith Freehills South Africa LLP

SINGAPORE

Rob Palmer

Hogan Lovells Lee & Lee

SAUDI ARABIA

Serge Gravel

Lamartine Conseil

UNITED KINGDOM

Robert Price

Latham & Watkins

MEXICO

Marco Tulio Venegas Cruz

LITREDI, S.C.

CANADA

Lucy L’Hirondelle

Norton Rose Fulbright Canada LLP

HONG KONG

John Rhie

Quinn Emanuel Urquhart & Sullivan LLP