Resolving Business Disputes
Resolving Business Disputes
How to get better outcomes from commercial conflicts
Resolving Business Disputes will give company directors, business executives and other commercial decision-makers a unique and essential insight into how to resolve business disputes and to reach the best outcomes by making effective decisions. The book is a guide, explaining the unique choices created by commercial conflict, basic workings of the law about disputes, the main avenues of dispute resolution, the forecasting of litigation outcomes for cases going to court, the funding of legal cases, the management of the risk involved, the creation of a dispute strategy, how to make the best use of legal advice and how to negotiate effectively. Also covers implications of Covid-19 for trade and commerce, including issues for the resolution of contract disputes.
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Resolving Business Disputes will give company directors, business executives and other commercial decision-makers a unique and essential insight into how to resolve business disputes and to reach the best outcomes by making effective decisions. The book is also aimed at dispute resolution lawyers, litigation funders and insurers.
It is a guide, explaining the unique choices created by commercial conflict, basic workings of the law about disputes, the main avenues of dispute resolution, the forecasting of litigation outcomes for cases going to court, the funding of legal cases, the management of the risk involved, the creation of a dispute strategy, how to make the best use of legal advice and how to negotiate effectively. Finally, by using objective criteria the guide explains how to decide whether to end a dispute by negotiated settlement or by taking a case all the way to a court judgment or other conclusion.
In view of the profound implications of Covid-19 for trade and commerce, the book also contains an introduction to key issues raised by the pandemic for the resolution of contract disputes.
PREFACE
INTRODUCTION
1. BUSINESS DISPUTES – THE PROBLEM EXPLAINED
2. THE LAW: RIGHTS AND REMEDIES
2.1. RIGHTS
2.2. REMEDIES
3. BINDING DECISIONS
3.1. INTRODUCTION
3.2. LITIGATION: COURT PROCEEDINGS
3.3. NON-PAYMENT; IS THERE A DISPUTE AT ALL?
3.4. OTHER TYPES OF BINDING DECISION
3.5. LITIGATION, ARBITRATION AND EXPERT DETERMINATION COMPARED
4. WHO WILL WIN?
4.1. INTRODUCTION
4.2. FINDING THE FACTS
4.3. FORECASTING: ADVICE ON THE LITIGATION OUTCOME
4.4. THE TRIAL: JUDICIAL DECISION-MAKING AND THE TRIAL OUTCOME
4.5. CONCLUSION
5. LAWYERS, THEIR FEES AND LEGAL COSTS
5.1. INTRODUCTION
5.2. FUNDING YOUR OWN COSTS
5.3. COSTS-SHIFTING ORDERS
5.4. ‘INSURING’ LEGAL COSTS EXPOSURE THROUGH COURT PROCESSES
5.5. COMPARISON WITH ARBITRATION AND EXPERT DETERMINATION
6. SETTLEMENT
6.1. INTRODUCTION
6.2. WHAT DISPUTES AND CLAIMS ARE BEING SETTLED?
6.3. FURTHER LEGAL REQUIREMENTS
6.4. SETTLEMENT AND BROADER COMMERCIAL TERMS
6.5. PAYMENT TERMS
6.6. CONFIDENTIALITY AND AGREED STATEMENTS
6.7. DISPUTE RESOLUTION PROCEDURES
6.8. INTERNATIONAL ELEMENTS
6.9. SETTLEMENT DURING LEGAL ACTION
6.10. RIGHTS UNDER THE SETTLEMENT AGREEMENT
6.11. SETTLEMENT AND UNCERTAINTY
6.12. ROUTES TO SETTLEMENT
7. NEGOTIATIONS
7.1. INTRODUCTION
7.2. THE CONTEXT
7.3. MEDIATION: ADVANTAGES.
7.4. CONDUCT OF THE MEDIATION
7.5. CONCLUSION
8. OBJECTIVES AND STRATEGY
8.1. OBJECTIVES
8.2. DISPUTE STRATEGY
8.3. THE ROLE OF LAWYERS
8.4. COVID 19 – CONSIDERATIONS
9. MAKING THE DECISION
9.1. UNCERTAINTIES
9.2. IDENTIFYING AND BALANCING THE CONSIDERATIONS
9.3. DECISION FRAMES, BIASES AND OTHER BEHAVIOURS
9.4. MAKING THE DECISION
9.5. CONCLUSION
APPENDIX 1 – LITIGATION
1. INTRODUCTION AND PRE-LITIGATION PROCEDURES
2. THE START OF LITIGATION AND UP TO TRIAL
3. TRIAL
4. APPEALS, ENFORCEMENT AND ASSESSMENT OF COSTS
5. OTHER COURTS AND TRIAL SCHEMES
6. THE WITHOUT PREJUDICE RULE AND OTHER FORMS OF PRIVILEGE.
APPENDIX 2 – COMPARISONS: LITIGATION, ARBITRATION AND EXPERT DETERMINATION
1. LITIGATION
2. LITIGATION AND ARBITRATION COMPARED TO EXPERT DETERMINATION
READING LIST
INDEX