Contracts should routinely include “structured” methods to avoid the need for litigation – including escalation clauses – if disputes arise, a former senior in-house lawyer has advised.
At the same time, Helen Dodds expressed her continuing confidence in London retaining its pre-eminent status as a dispute resolution centre.
Ms Dodds is a director of LegalUK – a group set up by the Lord Chief Justice in 2017 to promote UK law internationally – and former global head of legal, dispute resolution at Standard Chartered Bank. She was speaking to Michael Redman, co-head of EMEA at litigation funder Burford Capital, ahead of next week’s London International Disputes Week.
Asked how to mitigate the rising costs of pursuing meritorious claims, she said: “The first thing you can do is try to avoid disputes altogether and there are structured ways of doing this.
“You can have dispute avoidance clauses in your contracts and then ways of dealing with disputes at the moment they arise to nip them in the bud…
“Something else you could do in your contracts is to have escalation clauses. So when problems arise, these may perhaps mandate that senior management get together and discuss the problem or possibly that mediation should be attempted.”
This should happen whether or not there is such a clause, Ms Dodds added.
Should litigation or arbitration still be required, she said technology was now crucial in bringing down costs. “There are various tools that do document management, discovery management, settlement analysis and of course online hearings—all of these reduce costs.”
Funding also had a role, she acknowledged, and not just for the impecunious – “you may like to think about how funding will affect your cash flow and your balance sheet, and you can use it for this”.
Ms Dodds said efforts to tempt dispute resolution work away from the UK since Brexit – with France, Germany and the Netherlands setting up English language courts – have been “variable and don’t actually provide an equivalent”.
She was confident that London remained an attractive destination for litigation and arbitration, citing the well-known factors of the English language, English law and “agglomeration effect” that meant parties had access to all the support services they needed.
The “global arbitration pie is growing”, she added. “There are a lot more arbitrations now, they’re online, they’re easy to access, just like accessing courts online. So the whole sector is growing and as a leading centre, I would expect London to maintain a large portion of that pie.”
To watch the full conversation between Ms Dodds and Mr Redman, click here.