As businesses across the globe try to re-establish their commercial connections and attempt to re-build their position there will inevitably be a number of contentious issues between companies, particularly where business is conducted cross-border. The restrictions and restraints placed on all countries related to the Covid pandemic made day-to-day trading, in some cases, extremely hard. The consequences of, sometimes inadvertent breaches of contract, have resulted in a number of contentious cross-border legal battles.
Khizar Arif, a partner in the litigation and dispute resolution team, points out "A cross-border contentious dispute is always highly unwelcome and often undertaken without due consideration of the impact and consequences of such a legal matter" Khizar further commented "often one party issues threats of litigation before taking legal advice from lawyers with the legal strength and capacity to evaluate a cross-border issue from a broad perspective, including the jurisdictional and cultural understanding as well as specialist legal knowledge related to the dispute. As a consequence, they find themselves involved in a protracted and costly legal dispute."
The infinitely better option is to seek a proper understanding of your legal position, including the financial impact and also the potential reputational impact, together with a realistic idea of the time and attention such a matter is likely to involve. There are a number of options available to you that do not involve taking legal action through a court of law.
Khizar and Giambrone & Partners' litigation and dispute resolution team always recommend attempting alternative dispute resolution (ADR) in the first instance. Khizar is a skilled and robust negotiator, qualified in a range of jurisdictions and a comprehensive grasp of their commercial and cultural landscapes as well as the potentially variable regulatory issues that may exist between countries. ADR offers the parties involved in the dispute the opportunity to stay in control of the dispute, rather than going to court where the matter is entirely in the hands of the judge.
Depending on the complexities of the matter, either mediation or arbitration are the two most common methods of dispute resolution. Arbitration is a more formal method and results in a legally binding decision that can be enforced. Generally, but not exclusively, an arbitration agreement is incorporated in the terms and conditions of a contract, including where the arbitration should be conducted and the rules that are to be followed in the event of a dispute. Most countries have legislation to govern arbitrations within their jurisdiction. However, the law of the country where the seat of the arbitration takes place does not supersede the terms of the arbitration agreement.
Most countries have embraced the United Nations Commission on International Trade Law (UNCITRAL) which was drafted in an attempt to create a universally fair standard for arbitrations and reduce the disparities between jurisdictions. It is important when choosing the seat of a potential arbitration, to choose a country that has embraced the New York Convention, which is a treaty that facilitates reciprocal enforcement of decisions across 160 countries. London is a highly popular choice as the seat for arbitrations.
Once the decision to seek arbitration has been made you can then appoint an arbitrator. Arbitrators are frequently international lawyers that are trained in arbitration and can be selected on the basis of their specialist knowledge and experience in a particular sector. There can be one arbitrator or a panel of three, one of which will be chosen as the lead arbitrator. The decision of an arbitrator is legally binding.
A less formal method of dispute resolution is mediation, it is an equally acceptable method of resolving commercial disputes and can sometimes be quicker, calmer and less costly, with up to 80 per cent of mediation procedures resulting in a successful resolution. A mediator is also a neutral third party, drawn from various professional disciplines and trained in negotiation.
Khizar Arif commented "it is highly recommended that the parties to a mediation are accompanied by an experienced legal advisor to ovesee the terms of a settlement and ensure that is it fair and equitable" Khizar pointed out "the legal risks and advantages of any resolution involving a cross-border situation should be made clear and be fully understood before any agreement. Almost certainly each party will have to give ground, sound legal advice should accompany any decisions made."
Khizar Arif and the litigation and dispute resolution lawyers enjoy an outstanding reputation for achieving resolution with cross-border ADR. The culmination of the legal expertise and associated legal knowledge related the overseas jurisdiction together with the language capacity which enables clients to have a completely clear understanding of all the factors involved results in attaining the outcome our clients wish to achieve almost every time. Our skilled lawyers devise robust strategies in support of our clients' commercial objectives to bring about a successful conclusion and safeguard our clients' business interests. Enabling the business to focus on post-pandemic recovery and not having to worry about a long-running cross-border legal case and ever-spiralling costs. Our skilled lawyers ensure that the result supports and safeguards our client's economic and commercial goals.
Khizar Arif was called to the Bar of England in 2001, he was then admitted to the Roll of Solicitors, attaining Higher Rights of Audience shortly thereafter. He holds a Master of Laws degree (LL.M.) focused on international business and maritime law from the University of Hamburg, Germany. He is also a member of Solicitors' Association of Higher Court Advocates, the London Shipping Law Centre and the Deutscher Verein für Internationales Seerecht.
He has a well-deserved reputation for achieving excellent results for his clients and has particular legal skill in contentious disputes. His clients appreciate his robust approach and dogged persistence to achieving their objectives.
Khizar speaks the following languages: English, German, Arabic, Punjabi, Patwari and Urdu
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.