MANAGING DISPUTE RESOLUTION STRATEGY AND PROCESS

CD: What are some of the key considerations for parties entering into a dispute resolution process in today’s business environment? What factors should influence the choice of dispute resolution method?

Duclercq: Today’s business environment – and especially the financial crisis – has increased the parties’ concern for the efficiency and costs of international dispute resolution. Although it was a concern prior to the crisis, parties now tend to assess even more thoroughly the costs and risks of commencing litigation or arbitration, and to favour prior amicable resolution methods such as negotiation, mediation or conciliation before bringing a formal action. As to the factors influencing the choice of dispute resolution method, one should keep in mind that it might often be the case where there is in fact no choice of dispute resolution method – for instance, if the contract is unbalanced, the stronger party might impose the method. In the event there is a real choice, several factors have to be taken into account, including whether the parties are used to alternative dispute resolution; whether they are from different countries – a neutral institution might be preferable; the location of the facts of the case; whether a public entity is involved in the dispute; the potential need for provisional measures; and the difficulty of language barriers. An essential factor is also the probability of enforcement and location of the assets of the other party should the case be won.

Jul-Sep 2013 issue

Altana Law

Charles River Associates (CRA)

PricewaterhouseCoopers Advisory N.V.