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9 Dispute Resolution Trends for 2023
Explore our 9 key global trends for the year to come
2022 marked an annus horribilis for cryptoassets, with multiple high-profile crises contributing to, and caused by, a collapse in confidence in the sector referred to by many as a “crypto winter”.
Whether 2023 will mark new spring for cyrptoassets is difficult to say – what is more certain is that the sector will continue to see fall-out from last year’s crises, in the form of increasing regulatory pressure and litigation across the globe. There are cryptoasset-related class actions on the horizon in the US and UK, while in the EU the key Markets in Cryptoassets Regulation is expected to come into force early in the year. Other key jurisdictions are expected to grapple with cryptoasset risks in both their courts and their statute books.
International arbitration remains a preferred method for resolving cross-border disputes. To meet the demands of increasingly sophisticated users and to enhance the attractiveness of certain jurisdictions as seats of arbitration, legislators, national courts and arbitral institutions have been modernising the legal framework and rules for international arbitration in key business centres across the globe.
Novelties introduced in 2022 include Italian law revisions giving arbitrators power to issue interim measures and Singapore legalising conditional fee arrangements in respect of arbitration. Legislative reform of local arbitration laws is underway in several jurisdictions, including Japan, China and Luxembourg. In England, results of the public consultation on the reform of the Arbitration Act 1996 are expected in mid-2023. We also expect the German arbitration law to come under review this year.
Courts continue to participate in shaping the landscape of international arbitration worldwide. We observe a trend towards deeper scrutiny of arbitral awards for possible violation of public policy, notably by German courts in the field of competition law and by French courts in matters where corruption or bribery is alleged. In the United States, the US Supreme Court delivered a landmark decision restricting discovery in aid of foreign arbitrations.
On the institutional front, users of arbitration may take advantage of several new sets of rules and services applicable to arbitrations initiated in 2023. These include the new Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (in force as of 1 January 2023) and the amendments to the Arbitration Rules of the International Centre for the Settlement of Investment Disputes (ICSID) (in force since 1 July 2022) (read more). Since June 2022, parties involved in arbitrations administered by the Hong Kong International Arbitration Centre (HKIAC) may apply to courts for support in Mainland China. The International Court of Arbitration of the International Chamber of Commerce (ICC) remains one of the busiest arbitral institutions in the world and enters its 100th year since its creation in 1923 with a new state-of-the-art digital case management platform.
In the year to come, we expect a continued increase in the use of arbitration in ESG disputes and in sectors such as technology, cryptocurrencies and digital assets, financial services, and mining. In the energy sector, the Energy Charter Treaty (ECT) has been undergoing a modernisation process to be finalised in Spring 2023, while several countries have announced their withdrawal from the treaty (read more).
At a time of an increasingly complex global geopolitical context, international arbitration continues to be widely used in international disputes involving the most diverse profiles of stakeholders, from small and medium-sized businesses, multinational companies and foreign investors, to states, public entities and international organisations.
Globally, competition damages claims are on the rise. Antitrust claims remain a constant in the US courts whilst, nearly a decade on from the EU’s Damages Directive, a number of European countries’ burgeoning competition damages regimes are bearing fruit.
That trend shows no signs of letting up. Companies operating in regulated markets remain a target for claims and, as the microscope of competition authorities moves to the tech sector and ESG issues, the breadth of competition law claims grows ever wider. Claimant firm and litigation funding markets continue to thrive, with beneficiaries increasingly pursuing private enforcement through cartel damages and abuse of dominance claims, as well as recasting consumer claims as competition actions in pursuit of lucrative damages awards. In some jurisdictions, claimants are feeling ever emboldened to bring claims without a prior infringement decision or even a parallel regulatory investigation at all.
Moving into 2023, one thing is for sure – competition remains fierce.
As courts around the world re-adjust to recovery from the recent pandemic, what appear to be common trends? In the world of commercial litigation, continued procedural reforms and streamlining appear to be very much on the agenda; we identify, for example, ongoing changes to key processes in the UK, and broad revisions in jurisdictions such as Italy, Singapore and the PRC. Improving mutual recognition and assistance in international cases is also a consistent theme with developments in the sphere of the recognition and enforcement of judgments and promotion of parties’ choice of forum. Unsurprisingly, the impact of digitalisation is also being felt, not only in the sense of the movement of court processes online, but in the nature of disputes with a greater focus on the tech sector and digital assets.
For more general information on commercial litigation around the globe, you may be interested in our 2022 Commercial Courts Review.
Separate to the significant increase globally in litigation and regulatory enforcement focussed on allegations of “greenwashing” (set to continue at pace), there was also an uptick in litigation with a broader ESG focus under various theories of liability including securities laws, consumer protection legislation and fiduciary duties. Anti-ESG litigation strategies pursued in the US (which may inspire follow-on litigation by private plaintiffs) adds to the complexity of the global ESG litigation landscape.
The private sector’s climate commitments and contribution to climate change will be of increasing focus into 2023 and personal responsibility of directors, senior officer holders and trustees to manage ESG-related risks will continue to be scrutinised (with the potential in the UK for more derivative claims to be filed). In the UK and elsewhere, the existence and scope of parent company duty of care, particularly in respect of human rights harms, continues to be tested by claimants. It is clear that anticipating and mitigating ESG risks will continue to be a key and strategic issue for businesses into 2023.
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