CD: With different rules, regulations, legal frameworks and processes all contributing to the complexity of international dispute resolution, do you believe that multinational companies appreciate the potential challenges involved when a conflict surfaces?

Duclercq: In my experience, multinational companies have often assessed the complexity of international dispute resolution prior to entering into an international contract – potential interferences of local law, applicable law, and choice of jurisdiction are all elements which are generally analysed at that stage. However, multinational companies do not necessarily grasp all the consequences of international dispute resolution. For example, under some jurisdictions, obtaining provisional measures, or the enforcement of a foreign decision or arbitral award may be difficult. Therefore, giving special care to the drafting of the dispute resolution clause may be vital for the effectiveness of the chosen dispute resolution method. It is essential to assess the potential challenges and major issues of the contract, its enforcement in the event of a dispute, and the economic and financial consequences in the event of wrongful performance or termination.

Fortier: Certainly, there are many rules, regulations, legal frameworks and processes that are relevant for multinational companies involved in international dispute resolution. But I don’t think these need to create real challenges for companies that have thought through the issues and planned ahead. What is required is that companies have competent counsel who are able to simplify the relevant issues in order for busy executives to appreciate their business significance. With this infrastructure in place, there is no reason multinational companies cannot fully appreciate the challenges involved and make reasonable, informed business decisions.

Jul-Sep 2013 issue

Altana Law

Cabinet Yves Fortier

PricewaterhouseCoopers AG

Skadden, Arps, Slate, Meagher & Flom LLP