Sep 2023

Preface: Commercial Litigation and Cross-border Enforcement

Whilst slowly emerging from the COVID-19 pandemic, the world seemed on course to return to its previous levels of commercial activity. However, the war in Ukraine in early 2022 shocked global supply chains and led to fundamental changes in society, the effects of which continue to be felt today. Against this backdrop, courts and arbitral institutions around the world have needed to adapt and evolve to ensure that they can provide the dispute resolution solutions that global business requires.

Whilst editing this book, it has been a privilege to work with some of the leading litigation lawyers and law firms around the world, who have provided a timely overview of the litigation, arbitration and alternative dispute resolution landscape in some of the key international dispute resolution jurisdictions.

President of the International Chamber of Commerce (ICC) International Court of Arbitration, Claudia Salomon, also explains the vision and strategy for the ICC and the growing importance of the role of arbitration to international business.

The increasing use of emergency and expedited arbitration has been key to this trend, as increased market volatility encourages parties to take proactive steps to preserve assets and achieve early determinations of disputes.

The developing regulatory landscape around environmental, social and governance (ESG) is continuing to be an important theme in dispute resolution. With companies increasing their focus on ESG in their strategy and market announcements, a trend has been developing of litigants bringing claims for liability arising from breaches of ESG-compliant businesses practices, with cases being based on supply chain liability, misrepresentation, directors’ duties and “greenwashing”.

Technology too, is at the forefront of business leaders’ minds. Rapid development in technology, particularly artificial intelligence, poses immense opportunity but also litigation risk. The move to virtual hearings during the pandemic has also accelerated positive change in the dispute resolution arena with judges and arbitrators considering as a matter of course whether hearings (particularly interim hearings) actually need to take place in person, with all of the cost and time-saving benefits that virtual hearings can offer.

The geopolitical and macroeconomic events of the last few years have caused significant volatility in financial markets. In the same way that the 2008 financial crisis subsequently led to many years of claims, it is likely that the courts and tribunals around the world will be handling claims for liability arising from investment losses for the foreseeable future.

If the anticipated recessionary environment continues over the coming years, it should also be expected that claims will arise as companies enter into insolvency processes, particularly with insolvency practitioners being appointed who are then in a position to uncover fraudulent conduct.

Overarching these market trends in dispute resolution, there has been divergence in the approach taken by the courts as to whether they adopt modified universalism and principles of comity in relation to cross-border enforcement and insolvency. This has led to a greater disparity in judicial decision-making with some jurisdictions opting to pursue more protectionist jurisprudence.

Given that position, an intentional focus of this book is on how awards and judgments are enforced and executed in each of the jurisdictions featured.

Enforcement is also highly relevant to the increasing prominence of third party funding which has caused a change in how disputes are analysed and assessed at the outset, with the priority having become the pragmatic question of whether, no matter how strong the claim, the resulting judgment or award can actually be converted into cash.

Above all, the information contained in this book is intended to be practical, accessible and actionable. With the authors’ professional biographies and contact details at the end of the book, it also provides the reader with a network of highly-experienced disputes practitioners in a range of jurisdictions. It is a network we are proud to have had the opportunity to work with, and be part of, in editing this book.