Advantage arbitration – why arbitration trumps litigation when it comes to cross-border disputes
The last decade has seen a radical upturn in the number of cases being referred to arbitral institutions globally, driven in large part by perceived advantages of the arbitral process, including confidentiality, speed, cost and enforceability of arbitral awards. But it is necessary to consider the extent to which parties may reassess some of the factors traditionally weighing in favour of international arbitration over English civil litigation in light of Lord Justice Jackson's reforms and the impact they are having on the conduct of litigation proceedings. Process v flexibility The introduction of the Jackson reforms on 1 April 2013 heralded a far more robust approach to case management in English civil litigation and a more severe approach to parties failing to comply with procedural deadlines. The overriding objective of dealing with cases justly and at proportionate cost now expressly refers at CPR (civil procedure rule) 1.1(2)(f) to "enforcing compliance with rules, practice directions and orders". This approach is then carried through into the new CPR 3.9 (relief from sanctions), which has been amended heavily to the effect that, while the court must still consider "all the circumstances of the case", when considering an application for relief from a sanction for failing to comply with any rule, practice direction or order, this will now only expressly include the need "for litigation to be conducted efficiently and at proportionate cost" and "to enforce compliance with rules, practice directions and orders".
Jamie Curle and Kate Knox reassess the relative merits of litigation and arbitration in the wake of the Jackson reforms and find that the flexibility provided by the latter will still probably hold sway for cross-border disputes
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