What is the most likely growth area for disputes in your jurisdiction for the next 5 years?
Litigation (2nd edition)
In our opinion, the most likely growth areas lie in the fields of construction as well as banking and insurance.
The number of commercial disputes that have international aspects is increasing in Japan as more and more Japanese companies are involved in international transactions.
In addition, one of dispute areas which companies should pay attention to is labour dispute. Due to the “Work Style Reform Policy” introduced by the Japanese government, the awareness of workers of their labour rights is increasing. As a result, lawsuits filed by workers, such as lawsuits concerning wrongful termination, unpaid overtime payment and sexual/power harassments, are expected to rise. In addition, disputes on “equal pay for equal work” also merit attention especially because the Supreme Court handed down two important rulings in 2018 concerning this issue which ruled that non-payment of some allowances to fixed-term employees were unreasonable where these allowances are paid to regular employees and the employers must compensate for such non-payment.
Due to the ongoing building project of a new Monegasque territory on the sea (Sea extension project), it is likely that construction and real estate disputes will arise (this has already started to be the case).
There is no doubt that the international commercial disputes are more and more seen in China. Among these cases, disputes related to intellectual property, commercial secret, merger and acquisition, and company governance are the most likely growing areas according to our observation. Disputes with relation to internet companies play an important role on the growth in these domains. Since internet companies in China are still in the process of expanding, it is possible that in the next several years cases related to these domains will continue to be the powerful ones.
It is expected that the number of disputes in the Data Protection field will grow, as the EU General Data Protection Regulation entered into force this year. This is due to the fact that in the present any document may be qualified as containing personal data. Altogether, the national Data Protection authority seems to have expanded its activity.
It also expected that there will be an increasing number of Tax disputes, considering that the Tax law have suffered numerous changes.
Given the increasing interested in the protection of the environment, we also expect a significant growth in this field.
Intellectual Property, data protection and energy related claims are two areas likely to see more growth, as well as a shift away from classical litigation to arbitration / mediation.
An increasing number of major professional negligence claims, especially in relation to financial and legal advisors in M&A, more post-M&A disputes and GDPR disputes. Claims related to violation of securities law is another area to be mindful of.
The arbitration sector in Egypt is growing rapidly as well as the alternative methods of resolution as most parties tend to avoid litigation.
First of all, due to certain turbulence in Russian economy and negative financial factors, it is likely that the growth of insolvency litigation will continue. Thus, in each year starting from 2015 commercial courts have been taking about 12-13 000 decisions (other figures may be available in certain public resources) on commencing one of insolvency procedures in relation to Russian companies. Also in the year of 2018 the number of personal bankruptcies in Russia exceeded the number of corporate ones.
Besides that, a large amount of disputes is likely to be caused by the increased application of public-private partnership (PPP) mechanisms allowing public budgets to cut the costs of creating infrastructure by sharing those costs with private investors. However, the courts are still facing difficulties while considering PPP disputes and the development of PPP case law in nearest years is expected.
Also, recently a new category of disputes relating to crypto technologies has emerged. In 2018, the Ninth Appellate Commercial Court courts has recognized a crypto currency as an asset and included it into the bankruptcy estate of the debtor. Due to the rapid development of crypto technologies, the courts will have to further deal with various crypto technologies issues not directly regulated by law.
In our opinion, the most likely growth area for disputes in Mexico for the next 5 years will be in the area of oral proceedings. Mexican lawmakers, in the recent years, have passed many reforms that order for the majority of the disputes to be resolved in oral trials.
The second area of growth will be in commercial arbitration. Mexico has important arbitration centers and ideal facilities for the conduction of arbitral proceedings. In addition, Mexico has a wide and consolidated body of laws integrated by international laws, that guarantee the resolution of controversies through arbitration in a predictable, certain and secure manner, providing ideal mechanisms for recognition and execution of national and international awards. Therefore, subject to the positive response from Mexican Courts, Mexico is a viable alternative to be selected as a place for arbitration.
In the realm of competition law, the 9th amendment to the Competition Act (GWB) has recently implemented numerous changes to facilitate the enforcement of cartel damages claims. The new regime also provides for “discovery light” proceedings in order to grant the parties access to information and documents in the possession of the other party. These rules are likely to lead to new “satellite litigations” for documentary disclosure in matters of competition law.
The new bill introducing a general Model Case Proceedings Act (Musterfeststellungsklage) could lead to a growing case-load of consumer disputes, in particular with respect to investor-related disputes (including, but not limited to, those covered by the KapMuG), cartel follow-on damages cases or banking law disputes.
According to statistics published by the Hong Kong International Arbitration Centre (“HKIAC”), the disputes heard by HKIAC during the period of 2010 to 2018 mainly arose from the following areas: international trade and sales of goods, corporate and commercial, maritime, construction, banking and financial services, professional services, intellectual property, investor-state, insurance and energy. Notably, international trade and sales of goods disputes accounted for nearly 30% of its cases in 2018, evidence perhaps of the recognition of Hong Kong as an international dispute resolution centre by parties involved in international trade. With the Belt and Road initiative being carried forward, it is a foreseeable trend that there will be a growing need to resolve international trade disputes which may arise between parties in China and the Belt and Road countries or between Sino and non-Sino parties. Hong Kong, with its depth of jurisprudence, high quality legal infrastructure and bilingual legal system, seems to be well placed as a forum to resolve such international trade disputes.
We envisage that, in light of GDPR being introduced into local legislation by the Data Protection (Bailiwick of Guernsey) Law 2018, data protection and related regulatory disputes will start to become more common.
India is one of the world’s fastest growing major economies, where infrastructure is still fairly underdeveloped. The Government is engaged in a continuous effort to invite investment and develop infrastructure in the country. In the process, India is witnessing major high value disputes in the infrastructure sector, which are expected to rise in the coming years.
With the increased focus on investment, a number of private equity players are present in the Indian market today. Disputes arising out of such investments is another area where the disputes will grow.
Further, increasing focus on the environment is likely to mean a more robust regime of environment regulations in India. Resultant dispute in this sector will also thus rise.
The banking sector in India has also seen a lot of reforms – focused increasingly tackling the menace of non-performing assets. Issues arising out of foreign exchange management are also likely to remain in focus – making this sector a possible growth area for disputes.
On the technological front, India has recently adopted stringent rules on net neutrality. Further, with the right to privacy being recognized a fundamental right by the Supreme Court in India and issues relating to privacy having an impact internationally, it is expected that this sector will see a lot of disputes in the coming years.
Isle of Man
Trust, corporate, shareholder and regulatory disputes.
The most likely growth area for disputes in Italy for the next 5 years seems to be linked to the development of new technologies and social media and to privacy and data protection issues.
In fact, new factispecies of civil liability emerge daily in the field of IT law, so far not particularly regulated at national level.
Moreover, the recent entry into force of the General Data Protection Regulation (GDPR) (EU) 2016/679 involves some onerous obligations, in particular for companies and businesses, and provides for fines up to 4% of global revenue.
On the other hand, GDPR recognizes to individuals new particular rights over their personal data, increasing the responsibilities and liabilities of controllers and processors, regardless of their geographic location.
It is therefore clear that adaptation to the new EU legislation is as necessary as burdensome for many national companies, and in particular for small and medium-sized businesses.
The infrastructure of special commercial courts will most likely grow in the next five (5) years. The Supreme Court is adopting measures to increase the number of special commercial courts. Further, there are continued efforts to provide specialized training to judges, with a view to increased efficiency in handling special commercial cases and more adept decisions on complex commercial issues. The Supreme Court is also undertaking a thorough review of the Rules of Court, which governs, in large part, commercial disputes. We believe that these measures will result in a more streamlined commercial litigation process.
There are also sustained efforts to promote arbitration as a viable and practical alternative to litigation. The arbitral institutions in the Philippines, such as the Philippine Dispute Resolution Center, Inc. (PDRCI) and the Construction Industry Arbitration Commission (CIAC), continue to update and revise their rules to reflect the latest innovations in the international arbitration community. For instance, the PDRCI recently revised its rules to incorporate an emergency arbitration procedure, wherein a party can request for the appointment of an emergency arbitrator who may provide interim relief prior to the constitution of the arbitral tribunal. Prior to the introduction of emergency arbitration, a party seeking interim relief had to resort to court proceedings. Further, the jurisdiction of the CIAC over construction disputes has been made so comprehensive such that, as long as the parties submit to voluntary arbitration, the parties may submit their dispute to the CIAC, regardless of the forum stipulated in the arbitration agreement. There are also associations in the Philippines, such as the Philippine Institute of Arbitrators (PIArb), which are solely focused on promoting arbitration as an alternative mode of dispute resolution. Thus, we believe that international commercial arbitration will continue to gain ground in the Philippines.
The economy is slowly recovering and businesses are getting on track after economic and financial crisis Portugal went through, which means that commercial disputes will become trendy again, namely proceedings against banks from investors that felt mislead, proceedings for medical malpractice and proceedings related to property investments and loans.
The most likely growth areas for disputes are the real estate and development and public procurement sectors.
We believe that one growth area for disputes in Sweden is damages claims based on competition law infringements (private enforcement). In December, 2016, the Swedish implementation of the EU Directive on Antitrust Damages Actions, the new Act on Antitrust Damages was enacted, with the purpose of facilitate for parties that have suffered from a violation of competition law to claim damages.
A likely growth area for disputes will be in collective proceedings. These are very well established in other jurisdictions (notably in the US) and procedures are now in place in England to make collective claims easier to commence and manage. These legal developments have encouraged law firms and litigation funders in the market, who are becoming more adapt at gathering and funding groups of claimants. We anticipate the collective proceedings to be particularly prominent in cartel and securities litigation.
The insurance claims and technology related disputes.
Bankruptcy. A new legislation passed recently, and it is the first regulation concerning this sensitive topic that has passed in the country. Creditors, especially unsecured ones, have a new alternative when setting up their strategy to conduct collection claims. Also, consumer-protection law is a hot topic that will certainly increase its exposure in the upcoming years.
We expect to see the continuous growth of small claim cases (cases seeking compensation of less than IDR 200,000,000 (two hundred million Rupiah).
We are also of the view that disputes over land and construction projects will rise in the next 5 years as a result of infrastructure growth in Indonesia.
The likely growth areas should be infrastructure and construction disputes, assets recovery and insolvency litigation and online/ social media publication claims.
We have witnessed an increase in caseload in various areas such as consumer protection, environmental disputes and energy and natural resources. Specially with respect to injunctions to stop or challenge energy or infrastructure projects.
In line with Malta’s Digital Strategy to develop a market for digital and financial technology, Malta has already recently introduced the Civil Court (Commercial Section) which is competent to hear cases relating to the Companies Act. Furthermore, Malta has lately garnered an even faster momentum in pushing forward its status as Blockchain Island wherein the Maltese Parliament enacted the following laws, setting the stage for a robust and comprehensive principles-based regime for the realm of DLT technology:
- the Virtual Financial Assets Act, Chapter 590 of the Laws of Malta and the Virtual Financial Assets Regulations, Subsidiary Legislation 590.01;
- the Malta Digital Innovation Authority Act, Chapter 591 of the Laws of Malta;
- the Innovative Technology Arrangements and Services Act, Chapter 592 of the Laws of Malta.
The above-mentioned laws have the potential of giving rise to litigation in this newly regulated field of law.
Due to increased construction in Malta in recent years the likelihood is that there will be an increase in disputes regarding construction.
There may also be an increase in disputes regarding data protection due to the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
In our opinion, the distributed ledger technology (DLT) and blockchain technology are potentially the most promising developments in digitalisation. Pursuant to a report of the Swiss Federal Council, Switzerland currently is one of the leading locations in the area of DLT and blockchain, especially but not limited to the financial sector. According to the report, Switzerland is making efforts to maintain and even expand this status. Accordingly, a potential increase of disputes in this context appears probable.
We anticipate seeing more disputes in areas affected by the aftermath of the economic crisis, such as litigation proceedings for the collection of nonperforming loans being in the possession of the Greek banks or sold by said banks to third parties as part of their restructuring plan.
On the other hand, the Greek economy is reviving at this stage and there is a serious development of concession projects. Furthermore the energy sector is constantly growing in a very competitive market.
Last but not least, the rapid growth of internet poses serious challenges for the protection of intellectual property and personal data.
Claims regarding the EU General Data Protection Regulation (GDPR) and claims regarding intellectual property rights (IPR). Intellectual capital has emerged as the leading asset class in companies. Ocean Tomo has conducted a study which shows that while intangible assets constituted 17 % of the market value of S&P 50, it constituted 84 % in 2015. We have already seen a major increase in litigation related to intangible assets, including IPR, over the last couple of years, and we believe that this trend will continue.
For reasons outlined before, Luxembourg is likely to become a place of choice for the enforcement of arbitral awards or judgments against State owned assets, since such enforcement is not restricted by legislation, unlike in Belgium or France.
There has been a rapid increase in the amount of federal securities class actions filed over the last five years. We expect this trend to continue, particularly as plaintiffs increasingly target a broader range of firms than before.
There has been an increasing number of disputes for termination of contracts including joint venture agreements as well as claiming damages and seeking specific performance due to difficulties in procuring foreign goods (including equipment and machinery) and impossibility of transferring funds to Iran, resulted from sanctions imposed by the US. We believe these disputes will increase further during the next five years if the difficulties remain in place.
Legal developments have encouraged law firms and litigation funders to become more adapt at gathering and funding groups of claimants. Also in light of the adopted bill regarding redress of mass damages in a collective action, we expect this practice to increase, in a rather exponential way, in particular for investor related disputes, securities litigation and cartel follow-on damages. The NCC expects to play a role in class actions, facilitating both in-court and out-of-court settlements.
Commercial litigation has grown in our country over the last few years. At the present time, with the promulgation of a new Commerce Code (on May 29, 2019), it is anticipated that this type of proceedings will be of a shorter duration as the consequence of greater clarity in aspects that as the result of technological advances had not been regulated.
On the other hand, the recent opening of our country to new markets and the inclusion of arbitration clauses in investment contracts seem to point that investment law and conflict resolution in that field will be the area that will experience the most growth in Ecuador.
Real estate in this jurisdiction has been the largest sector for litigation in the past ten years, and it will be the main growth area for disputes for the coming 5 years in my opinion.
It is more likely that the growth will be noted in contract enforcement and bankruptcy litigations for the following reasons. The contracts are gaining more and more use in the market today, considering that previously it was a common practice for entrepreneurs to opt for making commercial transactions without actually concluding legally binding documents. In consequences, the courts were not always able to solve such disputes, and the parties had to deal with it by themselves out of reach of the law. Nowadays, nearly every commercial transaction is formed, having in mind that litigation is the most effective way of resolving disputes if the negotiations were not productive.
There is a high chance that bankruptcy cases will be growing in number, including volunteer bankruptcy and restructuring. We already see the development in cases initiated based on a voluntary bankruptcy petition. Especially after the establishment of a specialized bankruptcy court we believe this trend will be further developing.