Dispute Resolution Data (DRD)

 
Now available via Wolters Kluwer
The ultimate outcome of an arbitration or mediation hangs on how you prepare. And how you prepare depends on how much you know.

Our Data Stories feature different professional settings and legal scenarios which illustrate how dispute resolution data can be used to address clarifications for clients, briefings and hearings strategy, cost budgets, locales, national court involvements and numerous other issues related to international commercial arbitrations and mediations. In each of the "Data Story" examples, one sees how to "filter on" a possible research topic and see a tailored research report (data).

Situation: The Paris office of a US law firm has been instructed to draw up a draft contract for a European construction company, headquartered in Zurich, which has successfully tendered for a major element of an infrastructure project being undertaken in Canada by a multinational consortium.

A senior associate in the firm's adversarial department has been asked by her transactional colleagues to draft the dispute resolution clause for the contract, which will provide for arbitration, with a possible stepped clause to include mediation.

Given the many nationalities and domiciles of the parties, and the place where the contract will be performed, all of which may fail to be considered when choosing the seat or legal place of any arbitration and the venue for any hearings, DRD data will provide a valuable backup to the firm's expertise in a number of areas including:

Some of the issues which the lawyer might research:

Comparing arbitration data for Europe and North America (the domiciles of the parties) and Asia (as a potential "neutral" jurisdiction), as a whole and in construction disputes.

  • Do the arbitral tribunals generally comprise a sole arbitrator or three?
  • What is the average duration of an arbitration?
  • What is the average amount awarded as compared to the amount of the claim?
  • Do respondents frequently file counterclaims; if so, do they generally prevail?
  • Do tribunals sitting in these locations typically permit interrogatories?
  • What is the likelihood of recovering costs?
  • Are the courts at the seat likely to get involved?

Comparing mediation data in Europe, North America and Asia, as a whole and in construction disputes.

  • How are mediators selected?
  • What is the average duration of a mediation?
  • What are the settlement rates for mediation for the construction industry in each region?

Situation: The General Counsel of a Mexican Claimant in a high-value commercial contracts arbitration that has been underway for several months believes that there is an opportunity to settle the dispute by negotiation or mediation, and bring the arbitration to an end before the financial and opportunity costs escalate any further. He instructs his external attorneys urgently to produce a brief on the pros, cons and options of seeking settlement at this time.

The arbitration is seated in New York with a three-member tribunal. The Respondent is a German company. In order to be able to negotiate from a fully informed position and with maximum leverage, the Mexican client wants data on settled arbitrations versus awarded arbitrations in Latin America, North America and Europe, to compare the outcomes that the parties might anticipate in their home jurisdictions and at the North American seat of the arbitration.

It is the weekend and the Associate designated to draft the briefing note is at his out-of-town home, but has access, on the DRD database, to all the data he requires without the need to travel to his office, including:

Some of the issues which the lawyer might research:

Comparing arbitration data for Europe and North America (the domiciles of the parties) and Asia (as a potential "neutral" jurisdiction), as a whole and in construction disputes.

  • Mediation duration and outcomes in commercial contract disputes in Latin America, Europe and North America, should the Respondent agree to mediate.
  • The consequences of proceeding with the arbitration, should the Respondent not agree to mediate, as to:
    • likelihood of the Claimant succeeding
    • likely level of recovery of the claim amount
    • duration and costs of the arbitration

Situation: A dispute is brewing between a US contractor and a Latin American sub-contractor at a major energy plant in Latin America. General Counsel of the contractor needs to weigh the implications of arbitrating the dispute under the contract terms if it cannot be nipped in the bud.

The parties' dispute resolution argument calls for institutional arbitration at their chosen neutral venue in Europe, before a three-member tribunal to be selected by the parties. General Counsel wants to have a grasp of the likely duration and cost of an arbitration in Europe by contrast with her experience and expectations, which are largely informed by practice and procedure in the United States. Also, the approach likely to be taken by a tribunal at a European seat to such matters as motions practice and interrogatories.

DRD data will provide relevant and current stats, by all case types and by the energy industry, in Europe-sited arbitration, including:

Comparing arbitration data for Europe and North America (the domiciles of the parties) and Asia (as a potential "neutral" jurisdiction), as a whole and in construction disputes.

  • Average duration and costs.
  • Average amount awarded as compared to the amount of the claim.
  • Counterclaims; value and success rate.
  • Prevalence of interrogatories.
  • Rates of settlement and at what point in the proceedings.
  • State court intervention.

Situation: A valued Asian client has called his lawyers in Singapore to arrange an urgent meeting to discuss options in a time-critical dispute that has arisen with a Latin American contractor manufacturing and supplying components for the tractors assembled in Brazil for the client company, for sale and distribution in the Latin American market. The dispute resolution clause provides for mediation before resorting to arbitration under the ICC rules if mediation fails, with a São Paulo seat, and no provision for the number of arbitrators.

With very short notice of the meeting, the Singaporean lawyers (one of whom is en route by taxi) can immediately log into the DRD database, on phone, tablet, laptop or desktop to review data and trends that are no more than one week old on the disposition of similar cases, awards, costs, duration and settlement.

DRD data, by region as a whole and by industry sector, will provide a valuable backup to the firm's expertise in a number of areas including:

Comparing arbitration data for Europe and North America (the domiciles of the parties) and Asia (as a potential "neutral" jurisdiction), as a whole and in construction disputes.

  • Average duration of mediation in the region; percentages settled?
  • Is a tribunal of one arbitrator more common than a tribunal of three; how is the tribunal selected?
  • What percentage of arbitrations are concluded by settlement, by withdrawl, by final award?
  • Time from the close of the arbitration proceedings to the issue of the award?
  • Likely recovery of the claim amount and prospect of a counterclaim?
  • Proportion of costs likely to be recovered if successful?

Situation: Everyman LLP, a substantial international law practice, is conducting one of its periodical in-house training seminars, in accordance with the firm’s established education policy and with its continuing professional competence obligations.

This seminar, on international commercial arbitration, coincides with a new intake of trainees into the firm’s London arbitration practice and will be addressed also to newly-qualifieds, associates and partners in the firm’s contentious and transactional departments. Overseas offices are to be linked by video.

Given the varying levels of experience and expertise among the attendees, and the spread of jurisdictions in which the firm operates, the seminar will cover developments in the practice and procedures of international commercial arbitration broadly, along with guidelines for drafting dispute resolution clauses.

DRD will provide essential data, directly accessible on-screen to attendees, in a number of key areas; comparing regional data against universal norms, to assess regional variations in time, cost, the grant of interim measures, the practice in interrogatories and so forth, both for general information and to inform best clause-drafting decisions.

Globally and regionally, therefore:

  • do the arbitral tribunals generally comprise a sole arbitrator or three;
  • what is the average duration of an arbitration;
  • what is the average amount awarded as compared to the amount of the claim;
  • do tribunals typically permit interrogatories;
  • what is the likelihood of recovering costs;
  • are the national courts likely to get involved;
  • is mediation prevalent;
  • if so, what is the average duration of a mediation; and what are the settlement rates

Everywoman LLP, a major US law firm with a number of international offices and with a growing reputation for excellence in its adversarial practice, has been contacted by Carruthers-Cross Inc., a leading US-headquartered multinational, with diverse interests, ranging from construction to ship-building; from high-tech industries to commodity trading.

Carruthers-Cross is undertaking a major review of their contractual dispute resolution agreements, notably in cross-border transactions for which arbitration is the first choice, and are inviting Everywoman to compete for this business with their current external attorneys. The spin-off from a successful pitch to Carruthers-Cross’ management and in-house Counsel would be future instructions in the conduct of arbitration proceedings.

Carruthers-Cross is particularly concerned to minimize the time and cost of any legal proceedings and, to that end, to identify the most favorable places to arbitrate, as assessed by region and industry sector.

Everywoman will start by pitching their own experience, expertise and track-record, both in drafting effective dispute resolution provisions and in handling live disputes, whether in negotiated settlement or via stepped clauses, or directly in arbitration.

DRD’s “Arbitration Process" chart of the use of data research in the successful conduct of international arbitration will provide a useful road-map to illustrate Everywoman’s approach to the conduct of ADR.

DRD data will also provide a valuable backup to the firm’s expertise in a number of areas, including comparative data for the industry sectors in which Carruthers-Cross are active, correlated to regional and global data for these sectors, including:

  • whether a tribunal of one arbitrator is more common than a tribunal of three;
  • how the tribunal is selected;
  • what percentage of arbitrations are concluded by settlement, by withdrawal, by a final award;
  • time from the close of the proceedings to the issue of the award;
  • likely recovery of claim amount and prospect of a counterclaim;
  • proportion of costs likely to be recovered if successful;
  • counterclaims; value and success rate;
  • prevalence and types of interrogatories;
  • state court intervention; and
  • average duration of mediation; percentages settled.

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