In The Year Ahead: Developments in Global Litigation and Arbitration in 2020, Baker McKenzie say that new international courts and cross-border enforcement are among the top dispute resolution trends for 2020.
First, according to the report, the globalisation of dispute resolution is leading to new 'international' commercial courts coming under consideration, six such courts having been founded in the past six years. Arbitral institutions are revising their rules and processes through the introduction of case management technologies. International courts for cross-border tort claims and international tribunals for business and human rights cases are also on the horizon.
Secondly, efforts to improve cross-border enforcement will see increasing cooperation between states and courts over the enforcement of judgments.
Thirdly, the growing use of mediation sees a developing trend towards mandatory mediation. Fourthly, litigation funding is entering the mainstream and jurisdictions are legislating to allow funding for litigation, while new legislation in this area may be introduced in the US this year.
Fifth, the growth of criminal and regulatory enforcement means an increased number of investigations conducted by regulators and law enforcement agencies; an area historically led by the US.
Sixth, looking at political risk to investments, there will be more sophisticated methods of expropriation including spurious legal claims and special retrospective tax measures.
Seventh, new analytics tools for dispute lawyers are being developed, with artificial intelligence on the verge of breaking into the mainstream, enabling lawyers to construct more effective cases and litigation funders to make better investments.
Eighth, new efficiency tools for lawyers will lead to wider adoption of technologies such as automated transcription, semi-automated research and drafting and guided workflow systems.
Ninth, there will be emerging use of AI in national court systems and increasing interest from national courts in artificial intelligence.
And lastly, in automated dispute resolution, platforms such as Kleros and Smartsettle may begin to make an entrance into the mainstream.
Future not past
The report also offers an overview of geopolitical conditions affecting global dispute and arbitration trends around the world, as well as a summary of legislation affecting main industries and regions.
Claudia Benavides, global chair of the dispute resolution group at Baker McKenzie, said: “It is uncommon to produce a forward-looking guide in the legal field as there are very few sources that consider what lies ahead.
The legal community tends to look to the past and present, writing and presenting on recent cases and the current state of law. And yet the questions we receive from clients often focus on the future. What trends are emerging? What's around the corner? How can I position my organization for what comes next?”