Corporate and commercial disputes review

Welcome to the first edition of Corporate and commercial disputes review.

From the editor

This journal will highlight and analyse key disputes-related issues that will be of interest to and affect our corporate clients.

In this edition, we review recent trends in M&A litigation and the issues on which claims over post-completion liabilities are being fought. Key themes to emerge are the likelihood of a continued high volume of litigation in this area, and the importance of ensuring that all contractual documentation is as clear and precise as possible – as any uncertainty is likely to be seized on by a party if it can provide an escape route from potential liability. Staying with the theme of contractual interpretation, we go on to consider recent examples where the courts have had to grapple with the wording of exclusion clauses to determine whether the claims in question had been excluded.

A challenge facing all industry sectors is the increasing importance of regulatory investigations, not only in England and Wales but internationally as well. We provide ten top tips for managing multi-jurisdictional and concurrent investigations.

In other areas that will impact on our clients’ businesses, we consider the likely effect of the proposed EU Directive on trade secrets, examine the thorny topical question of contractual capacity and look at a recent decision by the courts to grant injunctive relief to prevent a party from enforcing an arbitral award obtained in breach of an exclusive jurisdiction clause.

Finally, our inaugural edition features an interview with Dr Karl Mackie, the chief executive of the Centre for Effective Dispute Resolution. Dr Mackie provides some insight on how best to use the mediation process and recent developments in mediation.

Contents

Seller opportunism or buyer remorse? 
In recent months, the English courts have considered a steady flow of disputes arising out of M&A transactions. While straightforward indemnity and breach of warranty claims are well represented among these cases, less common battlegrounds have also been traversed.

Keeping your trade secrets a secret in Europe 
In our knowledge economy, competitive edge arises from holding valuable proprietary information: the ability to protect our trade secrets is more important than it ever was.

The construction of exclusion clauses: any profit in your bargain? 
The onward sale of commodities – whether oil, gas, copper, zinc, grain or anything in-between – even whilst in transit, is an everyday part of international trade.

The construction of exclusion clauses: Excluding liability for indirect losses 
We look at two cases in the UK which emphasise the importance of clear and perspective exclusion clauses.

Managing multi-jurisdictional and concurrent investigations 
Managing complex global investigations presents significant challenges. Regulatory probes in multijurisdictional investigations are likely to be complex and overlapping.

Capacity of foreign public authorities: traps and tips 
We describe some traps for innocent counterparties and how they might avoid them.

Anti-enforcement injunctions – the second bite at the cherry? 
The relief generally sought for breach of an exclusive jurisdiction clause by parties who litigate in England or are engaged in arbitration with a seat in England is an anti-suit injunction.

Interview with Karl Mackie, chief executive of CEDR
As chief executive of the Centre for Effective Dispute Resolution (CEDR), Dr Karl Mackie CBE is a leading influence on the development of mediation in the UK.