In a world where commercial disputes frequently cross international boundaries, it is inevitable that clients and practitioners across the globe will need to look for guidance beyond their home jurisdictions. The Dispute Resolution Review offers the first helping hand in navigating what can sometimes, at first sight, be an unknown and confusing landscape, but which on closer inspection often deals with familiar problems and adopts similar solutions to the courts closer to home.
Collectively, the chapters illustrate the continually evolving legal landscape, responsive to both global and local developments. For instance, over the past year the EU has adopted a new regulation on jurisdiction which fortifies the freedom of parties of any nationality to choose to litigate in their preferred forum and grants Member State courts discretion to stay proceedings in favour of proceedings already on foot in non-Member State courts. At the other end of the spectrum, 2015 saw the Supreme Court in the United Kingdom clarify the law on penalty clauses 101 years after the seminal House of Lords’ case on this issue. But even seemingly local decisions such as this have a broad audience and can have far-reaching consequences in global commerce. It is always a pleasure – and instructive for my own practice – to observe the different ways in which jurisdictions across the globe tackle common problems – sometimes through concerted action under an umbrella international organisation and sometimes individually by adopting very different, but often equally effective, local solutions.
Over the lifetime of this review the world has plunged into deep recession and seen green shoots of recovery emerge as some economies begin to prosper again, albeit uncertainly. One notable development over the course of 2015 has been the sharp and sustained fall in the oil price (along with commodities more generally). This has had, and will continue to have, far-reaching economic and geo-political effects which may take some time to manifest themselves fully. As many practitioners will recognise from previous global shocks, these pressures typically manifest themselves in an increased number of disputes; whether that is joint venture partners choosing to fight over the diminishing pot of profits, customers seeking to exit what have become hugely expensive long-term contracts, struggling states renegotiating or exiting their contracts (or simply expropriating commercial assets) or insolvency-related disputes as once-rich parties struggle to meet their obligations. The current economic climate and short to medium term outlook suggests that dispute resolution lawyers operating in at least the energy and commodities sectors will continue to be busy and tasked with resolving challenging multi-jurisdictional disputes for years to come.
Jonathan Cotton joined Slaughter and May in 1994 and has been a partner since 2004. His practice covers a range of contractual disputes, competition disputes, restructuring and insolvency matters, and contentious aspects of M&A matters.
He is particularly experienced in disputes and investigations involving allegations of ‘wrongdoing’ in various forms. On the civil side, these have included cases involving the ‘theft’ of confidential information by employees and competitors, conspiracy and civil fraud. Jonathan recently led the team defending the Serious Fraud Office from high profile claims brought by the Tchenguiz brothers relating to their investigation and arrest in 2011. On the criminal and regulatory side, he has been involved in investigations and cases concerning cartels, the Bribery Act, the Proceeds of Crime Act, the Fraud Act, export controls and sanctions, as well as Companies Act offences.
Jonathan led the firm’s response to the Bribery Act 2010 and is one of Slaughter and May’s experts on the Proceeds of Crime Act. He is author of a chapter on the ‘adequate procedures’ defence in Lissack & Horlick on Bribery.
The publisher acknowledges and thanks the following for their learned assistance throughout the preparation of this book: