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TDM Call for papers "Dispute Resolution from a Corporate Perspective"

25 March 2014

We are pleased to announce a forthcoming TDM special issue on Dispute Resolution from a Corporate Perspective edited by Kai-Uwe Karl (General Electric), Abhijit Mukhopadhyay (Hinduja Group) and Heba Hazzaa (Cairo University).

While corporations are one of the key stakeholders in international dispute resolution, they do not often participate in the debate, and if they do, they often speak a language completely different from that of the other stakeholders. There are numerous topics that play a key role in the daily life of corporate dispute resolution lawyers but are rarely discussed outside the corporate world or from a corporate perspective irrespective of having a significant impact on how disputes are managed and resolved, or how corporations expect this to be done.

A TDM special on dispute resolution from a corporate perspective seeks to widen and deepen the debate on issues that are central to the efficient management of disputes from a corporate perspective. We seek contributions related to any of the areas set out below but welcome other relevant contributions as well.

Dispute Management. While companies do not enter into contracts with the expectation of becoming embroiled in litigation, disputes do occur and are part of doing business. The assumption is that disputes should be managed systemically rather than as ad-hoc events.

We seek contributions that focus on dispute management systems and policies, including how they may impact dispute resolution processes, for example:

• There has been a debate on corporate dispute resolution policies and dispute management systems. How do such policies function in practice and what makes them successful? What should they include? How are they implemented? How do they compare for companies headquartered in different parts of the world, or for small versus large corporations? How can their success be measured? Any contribution on corporate dispute resolution policies or dispute management systems, including case studies, academic research, etc., would be welcome.
  
  
• There has been significant research on determining which dispute resolution process may be most appropriate for a particular dispute. Moreover, while many arbitral institution now offer mediation services, some are further evolving into "conflict management institutions" where corporation receive advice on which dispute resolution method is most suitable for their dispute. Is this a welcome evolution?
  
  
• From the perspective of a corporation, commercial dispute resolution is about managing risks. A judge or arbitrator, on the other hand, is occupied with delivering justice. A corporation will want disputes to be resolved swiftly, ideally within months, with minimum uncertainty as to the outcome. A judge or arbitrator may consider this, at best, unrealistic or simply irrelevant, and typically is careful to avoid any indication as to what the outcome of a dispute may be.
  
  
  • With the ever increasing speed of doing business, how can the corporate perspective be incorporated into litigation or arbitral proceedings?
    
    
  • Apart from the general recognition that commercial dispute resolution must be efficient, speedy and inexpensive, is the corporate perspective relevant at all, or is it simply wishful thinking of a business manager with no understanding of court litigation or arbitral proceedings?
    
    
  • Is there room for a notion of "procedural justice", which incorporates the business' perspective into the arbitration or litigation, or is procedural law only there to serve the purpose of reaching an accurate final judgment?
    
    
• "Professional responsibility meets moral hazard". Lawyers who negotiate on behalf of their clients do not bear the costs and benefits of the deals that they reach, at least not directly and certainly not in the same way that their clients do. Are such ethical considerations relevant when designing dispute management systems? How should they impact performance measures?
  
  

Commercial Dispute Resolution - The field of negotiation. In order to successfully resolve commercial disputes, lawyers must possess, in addition to their legal, technical, and industry expertise, the skills to understand, predict and manage conflict through negotiation. While discussion of legal concepts and theory among the community of international dispute resolution lawyers is highly sophisticated, there is less of a debate on negotiation and limited exchange with other disciplines researching the field of negotiation.

• How can the study of negotiation processes - including psychological processes such as cognition, emotion and motivation as well as social factors such as communication, cooperation and power - assist parties, counsel and arbitrator in resolving commercial disputes? For example:
  
  
  • Settlement negotiations v. arbitration: How do decision making processes differ? How do we properly frame risks? How do cognitive biases or social processes impact decision making?
    
    
  • What role can emotions play in the dispute resolution process (including arbitration and litigation)?
    
    
  • What is the role of negotiation within arbitration or litigation? Do arbitrators negotiate with the parties to a dispute? How will arbitrators view parties using arbitration to persuade the other side to make concessions?
    
    
• Mediation, a close cousin of negotiation, has become a standard and key dispute resolution tool for many large corporations. What does this mean for the skill-set counsel must possess in order to serve its client? For example, how does the traditionally "rights based" training of lawyers support, or stand in the way, of "interest based" mediation?
  
  
• Many corporations now use early case assessments to determine the way forward in case of disputes. What economic concepts should be applied when weighing settlement versus litigation or international arbitration?
  
  
• Negotiation changes fundamentally when we move from two-party to multi-party negotiation as coalition-building and sequencing become salient. Arbitration is traditionally a two party dispute resolution process although there are often multiple disputes in parallel relating to the same issue. Can models developed for multi-party negotiations help to more efficiently resolve disputes where, for example, the parties are embroiled in parallel arbitrations with multiple parties?
  
  

Managing the cost of dispute resolution. Managing the cost of dispute resolution is key, and discussions between law firms and corporations often center on the subject of how much and how to bill, including for dispute related work. While there is an ongoing debate about whether traditional hourly rate billing creates the wrong incentives, alternative fee arrangements for dispute resolution still appear to be exceptional. We seek contributions addressing issues such as:

• What types of fee arrangements are conceivable for commercial disputes?
  
  
• How should risk be allocated between outside counsel and client?
  
  
• How should alternative fee arrangements be structured?
  
  
• Should there be model agreements or templates for alternative fee arrangements?
  
  

The future of commercial dispute resolution - breaking new ground. The arrival of "big data", i.e., the increasing volume, velocity, and variety of data, is likely to catapult us into a world where analytics of very large data sets may allow predictions of outcomes and behavior that currently does not exist.

• How will "big data" shape the future of commercial dispute resolutions?
  
  
• We seek contributions on the future of commercial dispute resolution including in relation to case management applications or tools, which anticipate, manage and reduce dispute resolution risks and related costs.
  
  

Please address all questions and proposals to Kai-Uwe Karl and Heba Hazzaa, with a copy to info@transnational-dispute-management.com when you submit material. Papers should be submitted to the editors by December 15, 2014.

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