Justin D’Agostino, head of disputes and managing partner in Asia for Herbert Smith Freehills, shared his firm’s findings of a decade of client research that his firm conducted to determine what their clients want in terms of dispute resolution. The findings showed overwhelmingly that they want more assistance with dispute avoidance, management and resolution, and that corporations with these systems in place can avoid disputes to begin with. His findings revealed that early case assessment (ECA) was common in Asia as it is in the West.
His findings revealed that early case assessment (ECA) was common in the US and the UK, but not in Asia. Clients wanted more ECA to avoid escalation of disputes. With ECA, at the beginning of a dispute, a company estimates the money, time and human capital required to fight a case. It also engages an in-house legal team to assess the facts, legal issues and commercial interests at stake.
Additionally, companies his firm conducted research on want more structured project management running disputes, not just lawyers, and they want more opportunities for meditation. The research indicates that mediation works, but that it is not yet as common in Asia as it is in the West.
Mr D’Agostino presented a toolkit for managing bigger, highly complex BRI-related contracts and disputes which may arise. This involves mapping out all the tasks and activities involved in a dispute to determine the people, time and money required to manage the case. He pointed out that information technology was what he called “the big disruptor” because, very recently, new tools have become available in terms of digital platforms, which allow clients to see the work process much more clearly. Hence, they can buy into the dispute-management process more easily.