London’s courts suck in companies and individuals from all over the world—some 40 percent of governing law in all global corporate arbitration is English law, according to research published earlier this year by TheCityUK, the trade body for the UK’s financial services industry. More than 19,000 commercial and civil disputes were resolved through dispute resolution in London in 2012, and around 4,700 of these were international.
The dispute industry is still growing too. More and more companies are operating in emerging markets, and more businesses and individuals in those economies are becoming wealthy enough to bring court cases abroad.
“One of the features which defines an emerging market is a weak rule of law and obscure collecting of information,” says Chris Morgan Jones, a strategic advisor at K2 Intelligence.
“In disputes between two emerging markets parties, there is often a strong emotional component because the businesses are not overgrown and overstaffed corporate entities. It tends to be two men duking it out.”
What all this court action obscures is that it is eminently possible to resolve cases of fraud or asset seizure without becoming embroiled in months and years of expensive court proceedings. Morgan Jones, who was previously regional managing director for Kroll Inc. in Europe, the Middle East, and Africa, says courts should be avoided if possible.
“It’s not just the financial cost, it’s the time cost, and that is rarely fully understood by companies who begin dispute proceedings,” he says. “The management hours required to get the right information together, answer requests from the opposing side, and oversee the lawyers, the PR people, and everyone else, are far greater than anyone expects.”
Key to a successful and relatively quick resolution are a clued-up client and information the other side doesn’t want you to find, says Morgan Jones.
Before entering a legal dispute, a business must figure out what it will lose or gain by resolving the argument. K2 Intelligence recently worked on a dispute that took four years to resolve and cost in the region of $100 million. However, the value of the disputed asset went up four times in value over that period, more than covering the cost of the investigation.
Each business must also decide how much management time it can commit to the dispute. And what any business needs immediately is evidence that the fraud did or didn’t take place, the asset was or wasn’t stolen, and useful information about its adversary.
Much of this information is to be found buried in public records and specialist investigators can be employed to go looking. For example, planning applications may hold information about an opponent’s living arrangements, says Morgan Jones. Why does he need space for a nursery in his extension when his children are grown up? Is he about to go through a divorce?
In disputes with foreign governments, particularly ones that are relatively untroubled about revelations of corruption, careful investigation can turn up the parties to whom they are beholden, be it foreign aid departments or multinational companies.
Investigators will steer clients away from temptation too. “You may have a client who thinks it is essential to bug phones and get hold of private documents but you will not be able to use them in evidence in court so doing so is not just illegal and dangerous but pointless,” says Morgan Jones.
Instead, the company that knows what it wants out of a legal dispute, how much time and money it can spend, and can legally access information no one else has found, is the one that is more likely to prevail.