With the tighter restrictions on public gathering brought by the COVID-19 pandemic, the international arbitration community turned to remote hearings and proceedings for a more flexible and continuous dispute resolution. However, this “new normal” has instigated significant challenges and the International Centre for Dispute Resolution (ICDR) has overseen an increasing volume of dispute cases. As a result, the ICDR and other leading providers released the 2021 ICDR Rules containing updates on the existing international arbitration and mediation rules to ensure efficient dispute resolution enforcement even amidst the pandemic.
Lack of proper project management and documentation, compliance with the present project standards, and excessive costs are often the reasons behind construction disputes. For years, these disputes have created significant challenges and risks in the construction industry.
Construction claims, which typically arise from disagreements, failed obligations, or violations on construction contracts, can be challenging and time-consuming. Failure to effectively manage and resolve such disputes can have a profound effect on a project’s lifecycle and deter good relationship between parties.
The increasing complexity of commercial litigation remains evident as regulatory changes and judicial developments continue to reshape the landscape. More significantly, the expected surge of COVID-19 related litigation filings underscores the need for organizations and their lawyers to be well-equipped in approaching potential disputes and trials. Time-tested trial techniques will become even more important as courts begin to drive their docket backlogs to trial over the next year.
International arbitration has historically been considered a cheaper and faster way than litigation to settle disputes. However, some question whether that remains true today in light of the so-called “due process paranoia,” where tribunals allow too much procedural latitude at the expense of additional time and cost to the parties. Before choosing international arbitration as a resolution method, in-house counsel need to understand the current pros and cons of this dispute resolution method. And with an ever-evolving backdrop, litigators need up-to-date knowledge and strategies to gain favorable results for their clients, including understanding the different international arbitration regimes, how best to research potential arbitrators’ backgrounds, best practices for framing the matter to the tribunal, cost-effective and results-driven discovery techniques, and data protection and enforcement of settlement arrangements.
With sweeping regulatory and market changes that continue to affect organizations, commercial disputes are also emerging with increased complexity. Thus, it is becoming more imperative for businesses to be well-equipped in managing and resolving these conflicts.
New regulatory and legislative developments continue to reshape the Financial Industry Regulatory Authority (FINRA) arbitration landscape. One of the sweeping changes today is FINRA’s temporary shift to remote operations and virtual arbitrations in response to the ongoing COVID-19 pandemic. Proper planning and assessment of the "new normal" must be carefully considered by practitioners to avoid the pitfalls which virtual hearings may entail. Other significant updates include FINRA’s overhaul of its Membership Application Program (MAP) rules and the Securities and Exchange Commission’s (SEC’s) approval of FINRA rule setting a minimum fee for brokers’ expungement request.
Under 28 U.S.C. Section 1782, U.S. federal courts are authorized to order or withhold discovery “for use in a proceeding in a foreign or international tribunal.” However, due to the existing disparity in arbitral proceedings, discovery assistance proceeds with varying conclusions among circuit courts. As a result, debates continue to emerge on the use of Section 1782, considering the Freedom of Information Act (FOIA) requests given to private entities in collecting evidence for foreign arbitrations.
COVID-19 may delay judicial proceedings all over the world, but it cannot stall the emergence of new disputes. The proliferation of conflicts across industries can even increase given the economic disruptions resulting from the enforced lockdowns. With this current backdrop, litigation may not be the best way for parties to deal with conflict.
The securities arbitration and mediation landscapes have been continuously reshaped with rule changes and regulatory enforcements causing complexity for defendants and plaintiffs alike. Furthermore, with the majority of hearings being conducted virtually, issues on security and confidentiality added a significant challenge in the prosecution of current cases.