London International Disputes Week: LIDW 2025
THE AUTHOR:
Erica Li, Senior Associate at Wilmer Cutler Pickering Hale and Dorr
London International Disputes Week 2025 commenced with an International Arbitration Day featuring panels on notable trends in jurisdictions spanning the world from Asia, Europe to the Americas. The panel titled “Arbitration in corporate and private capital lessons from Asia” focused on recent trends in corporate and equity arbitration in Asia. The panellists included David Blumental (Simmons & Simmons), James Nicholson (FTI Consulting), Kathyrn Sanger (Herbert Smith Freehills Kramer), Duncan Watson (Quinn Emanuel Urquhart & Sullivan) as speakers, and Gourab Banerji (Essex Court Chambers) as moderator.
Recent Trends in Corporate and Private Equity Disputes in Asia
Mr. Banerji asked Ms. Sanger about recent trends in disputes arising out of Asian private equity markets, and whether these disputes were concentrated in a few select jurisdictions.
Ms. Sanger explained that there were three main types of disputes related to corporate and private equity transactions in Asia. The first type of dispute was pre-closing disputes, which arose in circumstances where the buyer in a transaction signs the contract, but does not ultimately execute it. This typically led to claims for specific performance. Although Hong Kong and Singapore have both seen this type of dispute in arbitration, this has increased recently in civil law jurisdictions, especially Korea and Mainland China, where specific performance is often the primary remedy for breach of contract claims.
The second type was post-closing disputes, which arose based on a breach of warranties and representations in a contract. While these claims were usually covered by M&A insurance, they have been brought against the seller directly in recent years.
Finally, the third type was exit disputes, which related to investors exiting deals by exercising their put options and redemption rights. Ms. Sanger noted that 2025 was going to be an interesting year. As the FT reported recently, there had been a backlog of exit cases, and it would take another eight years for investors to exit these legacy deals.
As for arbitration hubs, Ms. Sanger said both Hong Kong and Singapore have attracted corporate and equity arbitration cases in recent years. There had also been a significant uptick in deals coming out of Korea, Mainland China, Japan, and Indonesia. In particular, in Indonesia, there had been a growth in sovereign debt work.
Cultural Differences Between Jurisdictions
Mr. Banerji asked Mr. Watson about cultural differences between jurisdictions, and how this might influence parties’ choice of jurisdiction.
Mr. Watson noted that cultural differences were particularly pertinent in private equity disputes, where the target company was often located in Asia, such that the parties, their counsel and witnesses will often come from non-Western jurisdictions. This gives rise to all types of cultural issues, which are always a challenge to navigate.
In particular, the choice of arbitrator is critical in factoring in these cultural differences; it is important to choose an arbitrator who understands how Asian businesses operate, or at least, has the “cultural humility” to accept that businesses may operate differently in Asia compared to the West.
Demand for Expedited Proceedings in Asia
Mr. Banerji asked Mr. Blumental whether he had observed any increase in demand among stakeholders for expedited arbitration, summary dismissal, or any method of a short turnaround in a dispute.
Mr. Blumental explained that speed is a priority for clients, especially where they are investment funds and private equity firms, who typically value the speed in which disputes are resolved. Therefore, summary proceedings are viewed as a useful tool for clients and is one of the things that they look for when choosing dispute resolution mechanisms.
Differences in PE and Commercial Disputes in Asia and Europe
Mr. Banerji asked whether there are any differences between private equity and commercial disputes in Asia compared to Europe, and which types of disputes typically escalate to arbitration.
Mr. Nicholson said that in recent years in Asia, he has seen disputes arising out of breaches of representations and warranties arising post-acquisition; exit disputes; disputes over call options and IPO obligations.
Future Outlook
Mr. Banerji asked the panel what they would expect to see in the future.
Ms. Sanger said that an interesting trend has emerged whereby clients are increasingly more willing to speak to disputes lawyers at the deal stage, so that they can provide input into how to best structure deals and termination fees to pre-empt any disputes that might arise in the future. Ms. Sanger also forecast an uptick in exit disputes, given how many exits from deals will occur in the foreseeable future. She also noted that Hong Kong has the advantage of an interim measures arrangement with China, which would enable the attachment of assets in China once arbitration has commenced.
Mr. Nicholson said that one area in which he has seen a slight difference in the trend is in the mid-market bracket of deals, in particular, in Southeast Asia, where businesses are typically family-owned and set up over fifty years ago when there were fewer formal structures in place. There has been a proliferation of disputes involving the valuations of these businesses, sometimes with minority oppression issues, when the businesses have passed onto the second or third generations who have conflicts with each other.
Ms. Sanger added that this could be an issue in family businesses where no succession plans are put in place. There have been instances whereby private equity funds have stepped in to buy these family businesses. This occurs frequently in Hong Kong through the courts, where siblings no longer get along with each other in the management of family businesses.
Potential Solutions to Enforcement Issues
Mr. Banerji asked how clients might be able to manage or pre-empt risks of the inability to enforce an award.
Mr. Watson explained that this could be done via the transaction structure or choosing an appropriate governing law. Some laws are more favourable to enforcement than others, and arbitration lawyers should be cognisant of these potential obstacles in advising their clients. For example, under Korean law, the rule in Henderson v Henderson does not exist, which means that a second bite of the same cherry is perfectly permissible. Traditional common law concepts, such as “reasonable endeavours”, also do not exist in certain civil law systems.
Lessons From Asia on Evidence
Mr. Banerji asked what aspects of valuation and proof of loss there are that might be highlighted as a lesson from Asia.
Mr. Blumental explained that disputes in Singapore and Hong Kong belong to a different class as there were a lot of very sophisticated arbitrators and counsel practising in these jurisdictions. These two jurisdictions aside, in some other Asian jurisdictions, the main difference compared to Europe was the availability of evidence. In Asia, many businesses were run in a less organised manner.
Unlike businesses in the West, a lot of large businesses in Asia had not had the benefit of the “MBA revolution”, such that bigger jumps in evidence were required in order to put together a coherent narrative. Therefore, lawyers would have to work very hard with their Asian clients to ensure that the right questions were asked and answers were obtained as to what evidence was available.
Conclusion
The panel highlighted key trends in corporate and private equity disputes in Asia, emphasizing the importance of understanding cultural differences and discussing specific regional trends. They also noted the increased involvement of disputes lawyers in the pre-dispute process. The future looks bright for arbitration in Asia, with growing demand, particularly from corporate and private equity transactions.
ABOUT THE AUTHOR
Erica Li is a Senior Associate and Solicitor Advocate (England and Wales) at the London office of Wilmer Cutler Pickering Hale and Dorr LLP, where she specialises in international arbitration.
*The views and opinions expressed by authors are theirs and do not necessarily reflect those of their organizations, employers, or Daily Jus, Jus Mundi, or Jus Connect.
