2016 An insight into resolving Technology, Media and Telecoms Disputes

The 2016 International Dispute Resolution Survey 'An insight into resolving Technology, Media and Telecoms Disputes', sponsored by Pinsent Masons LLP, is the seventh carried out by the School of International Arbitration since 2006, as part of a major investigation into international dispute resolution practices and trends worldwide.

This Survey reveals common practices for resolving technology, media and telecoms (TMT) disputes, including the use of ADR mechanisms, thereby allowing stakeholders to benchmark their own businesses' internal practices. It puts quantitative findings into market context and seeks to predict efficient solutions to challenges that surround TMT disputes.

Download the full survey here [PDF 4,612KB].

Survey findings

Types of TMT dispute

• This year’s survey focussed on one area of disputes. However, the results showed a wide variety of potential dispute types related to technology matters. Respondents indicated experience of at least 17 different types of TMT related dispute.
• There are a variety of reasons for disputes arising in relation to IP, IT implementation programmes, data related issues, reputation management issues and outsourcing programmes.
• TMT disputes are high risk and high-value, particularly in Europe and North America: many involve sums in excess of US$100m.
• Predicted future areas for disputes are: IP, collaborations and data/security issues.

In-house dispute resolution policies and preferences

• 75% of organisations surveyed had a dispute resolution (DR) policy.
• Within DR policies mediation is the most encouraged mechanism, followed by arbitration.
• Where a DR policy specifies arbitration, the three most important elements are: institution, seat, and confidentiality.
• IT and Telecoms suppliers were less in favour of arbitration, preferring litigation and expert determination respectively.
• When assessed at an all-respondents level (i.e. including private practitioners and other dispute resolution practitioners), arbitration is the most preferred DR method for TMT disputes. Court litigation is the least desirable method.
• There is a lack of familiarity with mediation, particularly within civil jurisdictions.

Dispute resolution mechanisms in practice

• Not all disputes progress to a binding decision. 41% of all disputes were settled via an amicable settlement.
• The decision whether to initiate litigation or arbitration is a Board issue.
• Whether or not a matter progresses to litigation or arbitration ultimately depends on legal and commercial factors.
• Arbitration was most preferred but litigation was the most used.
• Decisions are determined primarily by costs and legal merits and the parties’ relationship.

Suitability of international arbitration for TMT disputes (present and future)

• 92% of respondents indicated that international arbitration is well suited for TMT disputes.
• Despite some criticisms and acknowledgement of opportunities for improvements, 82% of respondents believe there will be an increase in the use of international arbitration.
• The attractive features are: enforceability, the ability to avoid a foreign jurisdiction, expertise of the decision maker and confidentiality/privacy.
• There is a desire to use technology to improve the international arbitration process.

Choosing the players

• Expertise in the arbitral process and technical knowledge of the industry are both important to selecting external counsel and arbitrators.
• Geography is a determining factor both in selecting the institution and in appointing counsel in the same jurisdiction as the contract governing law.
• The most used institutions for TMT disputes are: ICC, WIPO, LCIA and SIAC. WIPO is more favoured in relation to IP matters.

Contact

Further information can be obtained from:

Gustavo Moser, Pinsent Masons Research Fellow in International Arbitration
School of International Arbitration
Centre for Commercial Law Studies
Queen Mary University of London
67-69 Lincoln's Inn Fields,
London WC2A 3JB
UK
Tel: +44 20 7882 6184
Fax: +44 20 7882 8101
Email: g.moser@qmul.ac.uk