In a series of four coffee break webinars on Jurisdiction, Choice of Law and Method of Dispute Resolution, leading international commercial dispute lawyers at Shepherd and Wedderburn, Jane Wessel and Barbara Bolton, explain the importance of carefully drafting dispute resolution provisions in international commercial agreements.
The key message that they will convey throughout the series, and also in a handy desktop guide that they have prepared to accompany it, is that parties need to give sufficient attention to deciding how and where any possible dispute should be resolved, and applying which law, before they sign on the dotted line.
They point out that some businesses achieve less positive outcomes when the agreement doesn’t quite go to plan, because they failed at the outset to truly factor in the possibility of the deal breaking down, and as a consequence, failed to consider, decide and clearly document how and where any dispute should be resolved.
The fact that these issues are often overlooked is no surprise to Jane Wessel, who says, “Negotiations to reach a deal are often very intense, they might have involved tiers of complexity, subsidiary agreements, tax considerations and usually large sums of money. In the twilight hours when the substantive deal is almost done, parties often lack the energy to think about what might happen if it all goes wrong. So they reach for a standard dispute resolution clause by default just to get the deal over the finish line, without thinking about whether that clause fits the particular circumstances of the deal. If a dispute later arises, this approach will frequently increase the time and costs involved exponentially.”
The webinars serve up several cautionary tales, which highlight some of the complications and problems that stem from not clearly choosing at the outset which law, jurisdiction and manner of dispute resolution will apply. They provide a great overview of the practicalities of choosing one method of dispute resolution over another, explaining, for instance, the circumstances in which arbitration might be more appropriate than litigation in court and vice versa; and the pros and cons of deciding on a forum in, say New York as opposed to New Delhi. The Guide accompanying the webinars provides a road map for the decision-making process when crafting a dispute resolution provision.
Co-presenter, Barbara Bolton commented, “We hope the webinars and Guide help to shine a light on the importance of factoring into agreements the possibility of things turning sour long after the ink has dried. Planning for and documenting the procedures for such an eventuality will reduce the chances of having to resort to lengthy and costly preliminary arguments and procedures about how the dispute should be resolved, all of which can significantly increase costs and cause delays.”
The webinars takes place at 10.30am on October 5th, 12th, 19th and 26th.
A copy of our Guide: 3am Clauses and How to Make the Right Choices: Jurisdiction, Choice of Law and Method of Dispute Resolution will be issued to anyone who attends the webinars and is also available on request.
About the authors
Barbara Bolton specialises in commercial dispute resolution, with a particular focus on corporate litigation, pension litigation and high-value, complex contractual claims. She has over 13 years’ experience in dispute resolution, including three years practising commercial litigation in Shearman & Sterling’s New York office, where she was involved in class actions and securities litigation.
Jane Wessel has amassed in-depth knowledge and wide experience of international commercial arbitration, appearing as counsel in arbitrations since 1994 under the rules of most of the major international arbitration institutions in countries throughout Europe, Asia, and North America, and also in investor-state arbitration under ICSID and UNCITRAL rules. She also has a thriving commercial litigation practice including a specialisation in complex and high-value competition damages claims. Jane is a Fellow of the Chartered Institute of Arbitrators and a CEDR Accredited Mediator.