Global Legal Insights 2022: 11

With the passing of the lockdowns, in most countries at least, there can be little doubt that the procedural landscape in courts around the world looks very different than it did before the pandemic struck. The same is even more true for international arbitration. Having embraced the much improved video conferencing platforms available, such as Zoom and Teams, during the lockdowns, courts and tribunals have continued to require their use. It seems clear they are here to stay.
There are obvious cost-saving benefits to remote hearings, particularly in international arbitrations where the parties and the seat of the arbitration are often located in different countries. However, such hearings are sub-optimal for the purposes of taking witness evidence through cross-examination and can also blunt the effectiveness of oral advocacy. So much is apparently accepted as a reasonable trade-off for the attendant cost savings, depending on the nature of the case at least. A further, less obvious drawback, however, as identified in the opening chapter of this book, is that remote hearings exclude the possibility of informal communications between the parties and their legal representatives before, during and after hearings.
Such communications can often be the catalyst for settlement discussions. One reason for this, in particular, is that it may be easier to broach the subject of settlement informally in the corridor outside the court without one party appearing the weaker, or lacking confidence in its case. In England and Wales, the scope for interlocutory hearings was significantly reduced by the reforms introduced by Lord Woolf in 1999. Amongst other things, these reforms discouraged parties from coming to court to resolve procedural issues by imposing immediately payable adverse costs orders on the party whose procedural arguments were not accepted. Whilst this reform had the opposite effect to that intended, namely reducing costs, it also limited the occasions when the parties met face to face. These opportunities are now further limited when interlocutory hearings are held remotely.
As I said last year, there has been relatively little research around the world on what factors drive settlement in commercial litigation, and how court procedures can ultimately add to the cost of litigation by unnecessarily increasing the burden through the front-loading of costs before a case settles. This is an area ripe for detailed research between international courts and academics and one that the commercial world would be well advised to encourage, and even fund.
With the threat of looming recessions hanging over many countries in the coming year, as well as rising interest rates, past experience suggests an uptick in the number of disputes that will go to litigation or arbitration without first being resolved. When cash flows are squeezed, debtors often use litigation to steal credit. At the same time, businessmen tend to have more time and a greater appetite for litigating when trade is down and the cost of money is up.
Over the years since I started in practice in 1981, disputes have become larger, more complex and more frequent. It is difficult to see that this trend will be reversed when recession bites, if it does. Businesses and other organisations therefore need to be alive to the procedural rules and conventions that prevail in different jurisdictions around the world. This book aims to meet that need, by informing potential users of the courts in those jurisdictions, as well as arbitrations seated there, of the advantages and pitfalls of the procedures that await them, or which they might choose, in a concise and practical way.
Finally, as ever, I am grateful to all the contributors from across the globe for the clarity and expertise of their work.
 
With the passing of the lockdowns, in most countries at least, there can be little doubt that the procedural landscape in courts around the world looks very different than it did before the pandemic struck. The same is even more true for international arbitration. Having embraced the much improved video conferencing platforms available, such as Zoom and Teams, during the lockdowns, courts and tribunals have continued to require their use. It seems clear they are here to stay.
There are obvious cost-saving benefits to remote hearings, particularly in international arbitrations where the parties and the seat of the arbitration are often located in different countries. However, such hearings are sub-optimal for the purposes of taking witness evidence through cross-examination and can also blunt the effectiveness of oral advocacy. So much is apparently accepted as a reasonable trade-off for the attendant cost savings, depending on the nature of the case at least. A further, less obvious drawback, however, as identified in the opening chapter of this book, is that remote hearings exclude the possibility of informal communications between the parties and their legal representatives before, during and after hearings.
Such communications can often be the catalyst for settlement discussions. One reason for this, in particular, is that it may be easier to broach the subject of settlement informally in the corridor outside the court without one party appearing the weaker, or lacking confidence in its case. In England and Wales, the scope for interlocutory hearings was significantly reduced by the reforms introduced by Lord Woolf in 1999. Amongst other things, these reforms discouraged parties from coming to court to resolve procedural issues by imposing immediately payable adverse costs orders on the party whose procedural arguments were not accepted. Whilst this reform had the opposite effect to that intended, namely reducing costs, it also limited the occasions when the parties met face to face. These opportunities are now further limited when interlocutory hearings are held remotely.
As I said last year, there has been relatively little research around the world on what factors drive settlement in commercial litigation, and how court procedures can ultimately add to the cost of litigation by unnecessarily increasing the burden through the front-loading of costs before a case settles. This is an area ripe for detailed research between international courts and academics and one that the commercial world would be well advised to encourage, and even fund.
With the threat of looming recessions hanging over many countries in the coming year, as well as rising interest rates, past experience suggests an uptick in the number of disputes that will go to litigation or arbitration without first being resolved. When cash flows are squeezed, debtors often use litigation to steal credit. At the same time, businessmen tend to have more time and a greater appetite for litigating when trade is down and the cost of money is up.
Over the years since I started in practice in 1981, disputes have become larger, more complex and more frequent. It is difficult to see that this trend will be reversed when recession bites, if it does. Businesses and other organisations therefore need to be alive to the procedural rules and conventions that prevail in different jurisdictions around the world. This book aims to meet that need, by informing potential users of the courts in those jurisdictions, as well as arbitrations seated there, of the advantages and pitfalls of the procedures that await them, or which they might choose, in a concise and practical way.
Finally, as ever, I am grateful to all the contributors from across the globe for the clarity and expertise of their work.