EFFECTIVE DISPUTE RESOLUTION: NEW GUIDANCE FROM THE ICC
Disputes in business are a fact of life. Misunderstandings, changes of circumstances or even nefarious activities are some of the most common triggers of disputes that can and do arise.
Therefore, sensible businesspeople make formal provision for how disputes should be dealt with. Such provision may include confirming the court system that is to apply or which alternative dispute resolution mechanisms (ADR) are agreed.
In respect of ADR, there is a broad range of processes that may be agreed, both adjudicative and non-adjudicative. Ideally, agreement should be reached at the time of contracting, as trying to agree anything once a dispute has arisen may prove challenging.
The International Chamber of Commerce (ICC) Commission on Arbitration and ADR has recently produced excellent guidance on effective dispute resolution.
In July 2023, the Commission produced the ‘Guide on Effective Conflict Management’. The guide commences with an introduction and an overview of the main recommendations and is followed by two main sections and one appendix. Section one covers the ways in which business can approach conflict management without assistance and section two covers ICC ADR services and how and when to effectively use them.
The Commission also produced a report on ‘Facilitating Settlement in International Arbitration’.
Both the guide and the report convey the obvious and well-known advice that the cost of disputes is usually lower when the dispute is settled between the parties or with the aid of a neutral third party, than when the parties delegate decision making to a judge or arbitrator – thus, confirming that for most parties, the goal is, or at least should be, to resolve disputes quickly and at the lowest cost possible.
Jan-Mar 2024 issue
Adrian Cole