The UK continues to be a world-beater as a dispute resolution centre, according to a panel at last year's Legal Week Commercial Litigation Forum. But litigating in London isn't always an option for international companies seeking to preserve their reputations and safeguard their revenue

Simon Davis, partner, Clifford Chance: "The globalisation of business and banking operates to the natural advantage of the UK as a dispute resolution centre. Sometimes I talk about the three Ls: language, location and law. The English language is still the language of business, London is attractive as a location and English law is used in international contracts. The quality of lawyering and the judiciary is also enormously impressive and it is well-known that the English judiciary is reluctant to intervene in arbitrations. 

"The threat to the UK is the pressure for disputes to be dealt with locally. I call this deglobalisation. We see this in Singapore, Hong Kong and India. In Africa there is a growing desire for disputes involving natural resources to be dealt with in Africa."

Jonathan Peddie, managing director of litigation and investigations, Barclays: "The biggest trend over the last decade has been the extra-territoriality of rules and regulation and of regulators and prosecutors, and even where it does not exist as a matter of law there is a greater tendency to assert it. Although your business may be divided into many units where different laws apply, brand management requires a different mindset: if something happens to your brand in one jurisdiction, in the modern world of social messaging and immediate information, it will be known everywhere, and regulators, prosecutors and civil litigants will react accordingly. Also you will find that because one authority has moved, the rest need to be seen to do so as well. 

"All in-house lawyers have a responsibility to evaluate the probability of a liability, and litigation management is very closely aligned with sound financial control. As soon as you have a probable outflow capable of estimation, the business must provide for the liability. If you cannot access risk accurately, you leave your board short of advice, which is a perilous position to be in. The need for certainty is enormous. And that need is growing all of the time." 

Richard Hoare, general counsel, Gulf Oil International: "Our products are sold in more than 120 countries and, although our contracts are in English law as a general rule, we never litigate in the UK. It isn't the contracts that people question, it is matters like intellectual property and employment that are litigated in the countries where the problems occur. We have the most litigation in India, Hong Kong and China, and certainty is always a difficult topic because the board wants to know how the cases are going to pan out and this is very hard to predict. Even in countries in Europe where you think you may get certainty, this doesn't always prove to be the case."

Richard Indge, partner, fraud investigation and dispute services, EY: "These comments echo the experience we have at EY, in that you can choose and manage your contract risk but it is investigations and disputes that arise in other ways that are more difficult to control."

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Left to right: Richard Indge, EY, Jonathan Peddie, Barclays, Richard Hoare, Gulf Oil, and Simon Davis, Clifford Chance

Peddie: "Contractual disputes are often not complicated to deal with. While they may be complex in terms of the facts, the actual process of resolution is a known quantity and the economic and reputational risks can be quantified. What worries most banks and, I suspect, other companies now are the off-road items, which are either highly complex and unexpected portfolios of litigation or cases that banks class as litigation but are not commercial disputes, such as regulatory investigations, enforcements and criminal proceedings and investigations. These are much more intense and multi-dimensional challenges for organisations."

Hoare: "The perspective that we have is that protecting our brand means we have to go out and police it across the world. We are going into new markets where there is good economic growth but which we are not used to and where there are high levels of uncertainty as to how cases will conclude."

Indge: "One of the main elements of protecting the brand is to ensure your company receives the revenue it is entitled to."

Hoare: "This is where English law contracts come in. Fortunately, people accept English law contracts nearly everywhere in the world and that is a great comfort."

Indge: "So the flipside to this is the need to manage reputational risk and to prevent people from trading inappropriately."

Hoare: "Not just inappropriately but astonishingly. The things people get up to are incredible. We had a case a few years ago where a business was set up in Estonia, which called itself Gulf Oil. They had no right to use the brand, so we started an action in Estonia to close it down. It took us seven years. We had to go to the Supreme Court of Estonia to protect the trademark. It was an extraordinary situation, and that was on our doorstep. Wherever we operate, we have to protect our brand and there are instances in Asia that are every bit as astonishing as this example. So it is a question of finding people on the ground in the countries where you have problems who can give you decent advice, but that is a full-time struggle."

Davis: "A serious risk for UK and US companies when operating in new markets is to attempt to impose their own way of managing legal disputes without understanding local differences. It is an all-too common approach. So the first thing that anyone should do when entering a new jurisdiction is to ask a local firm to identify the 10 things about the local law or legal system that tend to take overseas investors or foreign companies by surprise. You'll learn everything you need to know pretty quickly."

Peddie: "I agree that those responsible for dispute resolution in international businesses shouldn't arrive on the doorstop of jurisdictions and tell them how to do it. However, local businesses need to recognise that if they are part of a global organisation they need to think globally and to take into account issues that may not be apparent on the face of the local issue. This has potential to create a degree of friction within an organisation. We're in a civil litigation forum, but no civil litigator these days can effectively do their job without understanding several important criminal principles. For example, the long arm of the US Foreign Corrupt Practices Act and the UK's anti-bribery and anti-money laundering legislation means that litigators who are concerned with contracts must also be absolutely on the ball when it comes to financial crime and conduct risk. This applies not only to their own organisations but also to the conduct of their contractual counterparties."

Indge: "Increasingly now we're brought in by our clients around the world who are investing in emerging markets to advise on how you manage the risks around things like sanctions, anti-bribery and corruption. This is now being built into due diligence processes in a way that it never was before. In my opinion it doesn't go far enough, even now."

This is an edited version of a panel discussion at the Legal Week Commercial Litigation Forum, which took place in London last October. This year's conference will be on 6 November at The Waldorf Hilton. For further details email [email protected].