What, in your opinion, is the most likely growth area for disputes for the next five years?
Alternate Dispute Resolution (ADR) is one key area where we can expect to see many changes. Both the judiciary and policymakers have tried to push litigants towards ADR. This is evident from (a) the enactment of the ADR Act 2017, (b) the various ADR centres setup during the tenure of Justice Mansoor Ali Shah during his time as the Chief Justice of the Lahore High Court, and (c) growth in the number of arbitral bodies and forums in Pakistan.
In line with Malta’s Digital Malta 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. Within the next five years, Malta is set to focus its resources on developing an attractive jurisdiction where commercial disputes relating to digital and financial technology can be settled.
As local companies expand overseas and international companies expand their reach into Asia, cross-border commercial activities involving Asian parties are bound to increase, and Singapore is well-equipped to meet any potential increase in demand for cross-border dispute resolution.
Singapore has already taken steps to expand and improve its alternative dispute resolution services to cater to growing demand. One recent development is the 2 year-long expansion of the Maxwell Chambers premises, which will house over 50 new offices for international dispute resolution institutions, arbitration chambers, law firms and ancillary legal services, as well as hearing rooms and preparations rooms for commercial dispute resolution cases, by 2019.
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 on commencing one of insolvency procedures in relation to Russian companies.
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.
Following recent events, the most likely growth area in Spain is consumer litigation, mainly regarding financial and securities disputes. Other potential growth areas include product liability, tort law, private enforcement or damage claims and very notably competition law.
We expect to see the continuous growth of small claim cases which claim for compensation under IDR 200,000,000.00 (two hundred million rupiah) as they have been growing over the years now.
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.
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.
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.
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).
According to statistics published by the Hong Kong International Arbitration Centre (“HKIAC”), the disputes heard by HKIAC during the period of 2010 to 2017 mainly arose from the following areas: construction, maritime, international trade and commercial, corporate and M&A and banking and finance. Notably, international trade disputes accounted for nearly one third of its cases in 2017, 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. 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.
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 focus on ADR, in particular mediation, is likely to continue as awareness of the potential time and cost benefits when contrasted with traditional litigation, if this collaborative alternative is successful, is amplified.
New technologies will certainly play a more important role in the commercial litigation market in the next 5 years as well as will play fields which become subject to more regulation.
We think the most likely growth areas for disputes would be energy and construction. The development of these markets will surely increase the controversies surrounding them.
We have also seen an increase in litigation regarding insurance controversies which were usually solved by reaching agreements but nowadays they are being subject of litigation as well.
A trend in recent years has been the increasing numbers of major professional negligence claims brought before the Swedish courts. This trend is expected to continue, especially in relation to financial and legal advisors in M&A transactions, and we also expect to see more post M&A disputes. Construction disputes are also expected to increase as a result of extensive production during the last few years in combination with falling real estate prices on the Swedish market and a potential recession. Furthermore, a recession or higher interest rates would most likely result in an increased number of disputes concerning distressed debt. Regulatory disputes are expected to increase as well, especially as regards banks and other financial institutions, as a result of increased activity from the Swedish regulator within these fields and additional compliance frameworks taking form.
We had been seeing a growth in insolvency proceedings over the past few years due to the economic and financial crisis Portugal was going through. However, the economy is slowly recovering and businesses are getting on track. Typically, this 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.
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.
We anticipate that new bankruptcy legislation, coupled with a current downturn in business, may result in increased bankruptcy proceedings over the next five years. Also, the emergence of a market in real estate mortgages is likely to result in increased real estate litigation over time.
In the recent past, we have seen an increase in litigation related to environmental issues, and there is reason to expect that this trend will continue.
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.
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.
A likely growth area for disputes will be in class actions. These are more established in jurisdictions such as the US, Canada and Australia but procedures are now in place in England to make claims easier to commence and manage, and law firms and litigation funders are more adapt at gathering and funding classes. Cartel damages case and securities litigation are likely to increase.
Competition claims due to cartel or other price manipulation and GDPR.
A trend in recent years has been the increasing number of disputes in the context of follow-on actions.
Where regulators such as the French financial market authority (Autorité des Marchés Financiers), the French Competition Authority (Autorité de la Concurrence) or the European Commission find companies liable for their irregular behaviour, third parties which believe that they incurred harm as a result of this behaviour may take legal action.
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 disputes in this sector will also thus rise.
The banking sector in India has also seen a lot of reforms – focused increasingly on 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.