We can’t avoid disputes forever, but we can try to solve them faster
It is irrational to believe that it is unlikely we will not disagree with someone, or that a business will not encounter a situation where there is a bad player in a market. It is highly likely over the course of a lifetime that there will be disputed items in our lifetime, which could arise in a family, friendship, wider social circle, with third parties in a business environment or between countries and states over territory[1].
Some people and firms are not well equipped to handle disputes if their temperament or strategies are not attuned to problem solving. Additionally, when one party is a hold-out or adopts a repetitive hostile stance in a situation where it is not possible to cease all contact with that party or whereby doing so would result in greater losses than remaining in a relationship even if toxic to try and obtain a remedy, then even a skilled problem-solver can be faced with limited or wholly unattractive options.
The average lifespan of a company has decreased dramatically from 61 years in 1958 to 18 years in 2016[2]. The average lifespan of a person is 70 years for men an 75 years for women and is predicted to be as high as 100 years in as many as 3.7 million cases by 2050[3]. Clearly people outlive firms and will see over their lifetime firms come into existence and cease. This is an important fact creating one aspect of the dynamics between people and firms which is relevant to the manner in which disputes may be addressed. If a firm will endure only 18 years then during that time each dispute that arises, and its transaction costs and outcome, could affect the lives of the directors, shareholders and wider stakeholders significantly.
Managing a dispute efficiently is therefore critical to the wellbeing of the firm, but also its stakeholders. The issues that plague firms to cause waste, such as self-interest, shirking, irrational decisions and behaviours, dishonesty, fraud, manipulation, deliberate injury to others and exploitation, all exist in the sphere of litigation and dispute resolution. Whilst there are many ‘good players’ in the field of disputes, the ‘bad players’ can be highly visible because of the mind’s tendency to gravitate towards negative information “negative information bias”[4]. We are more likely to remember disputes than favourable outcomes even if the latter is more frequent.
Fortunately, systems for dispute resolutions continue to develop given their fascinating origins of ancient Greece which demonstrate mediation and arbitration are natural methods and systems of dispute resolution[5]. As of 2021, the world’s leading dispute resolution organisation, the International Chamber of Commerce (“ICC”) introduced new revised rules for its Expedited Procedure Provisions (“EPP”). It is not the only institution with a process for expedited arbitration procedures, but it has a head start in relation to the depth and length of successes of its institution and the scope of resource it has to apply to researching and improving its processes.
The reported average timeframe for an ICC EPP case was 48 cases in 2020 and 61 cases in 2021 out of 108 where a final award was issued, were concluded within 6 months. Compare this to the litany of statistics over the time it takes to obtain justice globally in court systems for better or worse and the advantages are clear.
This 18th Hughes Krupica TL:DR The Legal Digest Review is therefore dedicated to the pursuit of faster dispute resolution through systems which are respected and credible for delivering justice, such as the ICC. On that basis, the second part of this TL:DR is a presentation provided by Ms. Xin Zhang, Counsel of the ICC International Court of Arbitration, which is an abridged version of a presentation delivered publicly on 18th January 2022 for the ICC Thailand ADR and ArbitrationCommission, of which Desmond Hughes, Co-Founder and Senior Partner of Hughes Krupica, is the current serving Chair[6].
[1] See World Trade Organisation: Disputes by member at: https://www.wto.org/english/tratop_e/dispu_e/dispu_by_country_e.htm last accessed 24 January 2022
[2]Stéphane Garelli Why you will probably live longer than most big companies (IMD December 2016 see: https://www.imd.org/research-knowledge/articles/why-you-will-probably-live-longer-than-most-big-companies/ )
[3] John Letzing How long will people live in the future (World Economic Forum 26 July 2021 see: https://www.weforum.org/agenda/2021/07/how-long-will-people-live-in-the-future/ last accessed 24 January 2022)
[4] Catherine Moore What is Negativity Bias and How Can It Be Overcome? (PositivePsychology.com 14 December 2021 see: https://positivepsychology.com/3-steps-negativity-bias/ last accessed 24 January 2022)
[5] Derek Roebuck Ancient Greek Arbitration (Oxford 2001)
[6] ICC Thailand see: http://www.iccthailand.or.th/home/commission4.php?pageid=NQ==&directory=MTM=
