M&A lawyers mitigate buyer risk through expansive due diligence exercises and tight contractual controls. Arbitration has become a prominent forum for resolving these disputes. For example, the London Court of International Arbitration (LCIA) has reported a significant increase in the number of shareholder, share purchase and joint venture agreements being referred to LCIA arbitration. This article examines the growth of arbitration as a forum for resolving such disputes.
The International Chamber of Commerce Commission recently published an update to its report on construction industry arbitration, focusing on recommended tools and techniques for effective management. The report is a helpful reminder for practitioners and arbitrators of the procedural mechanisms available which are particularly relevant to the conduct of arbitration in the construction sector.
The expert phase is often the most critical, and sometimes costly, part of the arbitration process. Thus, choosing the right expert is crucial. This means ensuring not only that the expert has the appropriate qualifications, technical expertise and reputation in the relevant field, but also (if possible) suitable experience of the dispute process and of writing expert reports and giving evidence in adversarial proceedings. This article offers some practical tips for managing party-appointed experts in arbitrations.
Although institutional rules arguably empower arbitral tribunals to streamline procedure and summarily dispose of claims or defences as part of their general case management authority, the trend is for institutional rules to expressly recognise such powers. But do these procedural innovations aimed at cheaper and quicker arbitrations come at the price of a binding and enforceable award?
Various innovative procedural features (eg, emergency arbitrators, expedited arbitration and summary procedures) have been introduced in recently adopted institutional arbitration rules in order to increase the efficiency of arbitral proceedings. It is not yet clear how extensively these provisions will be used, nor how resulting decisions and orders will be recognised and enforced. However, the idea of granting tribunals powers to dispose of certain issues by way of summary procedure should be welcomed.
Smart contracts are a hot topic in almost every industry sector. There is a misconception that, because they perform automatically and their performance cannot be stopped, they remove the potential for disputes. At least for the moment, this is wishful thinking. Although smart contracts provide huge potential benefits in terms of reducing transaction costs and increasing security, disputes can and will arise.
In time, Big Data will lead to the automation of most human tasks. The change potential for all organisations (and for society at large) is enormous, and it is already happening in an arbitration context. Some will consider that human discretion will always be a necessary part of dispute resolution. However, if arbitration exists to serve the interests of businesspeople – and if technology can offer quicker, cheaper, data-driven solutions that reduce the margin for error – human arbitrators could become irrelevant.