Clémence Prévot, Senior Content Manager at Jus Mundi
As part of the in-house legal team, you are the guardian of your company’s legal interests from contract negotiations to enforcement of arbitral awards. Be the internal asset and business partner you were meant to be!
At Jus Mundi, we are aware that not all legal departments have a dedicated arbitration or disputes team. To make your life extra easy, we are publishing a series of practical Arbitration Know-How articles, specifically intended for in-house counsel.
Take a look at the first articles of the series:
- The Ultimate Arbitration Checklist: a Practical Guide for In-House Counsel, which exposes, in practical terms, the steps to be taken in the contract negotiation phase, pre-dispute phase, and during arbitration.
- Arbitration Clause Drafting101, so you can confidently draft your dispute resolution clause and never use a claim-generating clause again.
Other articles of our Arbitration Know-How series will cover:
- Arbitrators’ selection and due diligence tips, so you can be more autonomous in making this crucial decision and save on legal costs;
- Prompting compliance with awards without having to enforce them, so you can recuperate your damages effectively and swiftly.
How is Legal Intelligence in Arbitration Any Different from Legal Monitoring & Compliance? What is at Stake?
Most companies and their legal department, if not all, whatever their size or industry, are familiar with legal monitoring and its importance. Organizations must act responsibly and obey ever-changing regulations from workplace safety and labor law, to finance and accounting standards.
Compliance departments are now a staple in major companies, as they face the increasing challenges of keeping up to date with an enormous flow of legislative updates, new regulations, and case law developments affecting their business. For global organizations, the need to remain abreast of legal developments does not stop at one jurisdiction, increasing the human and financial resources required to stay compliant.
Companies need to be agile to stay up to date and comply with new legal developments. The risks of non-compliance are tremendous: from hefty fines, and reputational damage, to loss of business opportunities and partners’ trust.
While it may seem like no such sanctions would occur for lack of a proper legal watch in arbitration (after all, we are not talking of legally-required compliance here), its importance should not be underestimated. The stakes may differ but a business’s risk management and resource savings are still the ultimate goals.
However strategic legal intelligence in arbitration is, it is no easy feat! Fortunately, we have tips and tools to help!
Legal Intelligence in Arbitration: Its Importance & Tools to Make it Easy
Simply put, legal intelligence provides the legal insights and business intel that in-house counsel need to mitigate risks and save cost for their business.
Legal intelligence is three-fold:
1 – Legal Monitoring Specific to the Subjects of your Business Projects & Contracts
This is not necessarily specific to arbitration. Whether engaging in arbitration or not, in-house legal teams must keep abreast of legal developments that may impact their company’s contracts or dispute resolution strategies.
For instance, companies with activities in the oil & gas industry should stay abreast of legal developments in jurisdictions of interest (i.e., where they have invested or are considering investing), such as changes in Bilateral Investment Treaties, or tax regimes applicable to foreign investors.
Legal monitoring ensures that you can efficiently react as early as possible to legal changes that impact your business’s bottom line, avoid making costly uninformed strategic decisions and stay competitive in the market.
Efficient legal monitoring provides strategic legal insights and turn legal departments into cost-saving centers, creating new business or financial opportunities for their company.
For instance, earlier this year, Singapore passed a bill to permit conditional fee arrangements in selected proceedings, including arbitration. Businesses can now fund their legitimate claims through different fee arrangements to share risks with their lawyers or deploy their cash flow elsewhere.
Even though such legal changes do not directly impact a company’s activities, they permit businesses to financially plan for their disputes in different ways and seize new opportunities.
- The financial returns of efficient legal monitoring can be great, above simply reacting to legal risks.
- Effective legal monitoring can make you both the guardian of your business’s external interests and an internal strategic partner to your company’s management.
- Sign up for law firms’ industry-specific or region-focused newsletters to remain in the know of changes in your industry’s legal environment.
- Track new case law on issues that may impact your organization’s contracts and projects. For instance, stay in the know of developments regarding wrongful termination of contracts by setting a personalized alert on Jus Mundi. Try it for free.
2 – Arbitration-Specific Monitoring
Arbitration is a legal field in and of itself. Staying abreast of arbitral developments is as important as industry-specific legal developments. In fact, both are highly intertwined and should be conducted as one.
- Staying updated on arbitration developments should be an integral part of your legal strategy regardless of your level of involvement in managing your arbitration cases.
In a previous article, we discussed the importance of monitoring contractual disputes related to arbitration clauses in order to avoid the pitfalls and dire financial consequences of poorly drafted dispute resolution clauses.
Whether you delegate your dispute resolution strategy to an external counsel or work alongside them, you can prevent disputes altogether by knowing what to be mindful of in your contracts.
A related example is a choice of paramount importance: the seat of arbitration. Knowledge is power: in addition to other considerations of due process and procedural efficiency of a jurisdiction, familiarity with its arbitral legal framework is essential.
Read our article on drafting an effective arbitration clause for tips on selecting a seat of arbitration.
- Although case law is not binding in international arbitration, precedent does play a persuasive role in arbitrators’ decision-making.
For instance, following the Achmea Saga has been a must in arbitration over the last few years. Legal decisions and awards shaped the fateful future of intra-EU investor-State arbitration, which impacted all types of industries.
The dispute resolution strategy primarily lies with in-house counsel. Information is therefore key. Reduce legal costs by staying informed of arbitral developments in order to better collaborate with external counsel and manage your arbitration cases more efficiently.
Tracking arbitration-related developments enable legal departments to limit their organization’s exposure to legal risks and keep their budgets in line.
Our Tips & Tools:
- Follow trends in arbitration in your industry through data-backed reports of arbitral institutions or Jus Mundi’s Industry Insights Reports.
- Occasionally peruse arbitral concepts “cheat sheets” to save time while staying updated on main developments. Jus Mundi’s Wiki Notes, for instance, are drafted by experts in the field, objectively presenting all arguments surrounding a concept, and regularly updated with the latest awards and decisions.
- Make your work simpler and more efficient by setting up personalized alerts on combinations of keywords and filters on Jus Mundi.
- Arbitrator due diligence is also tremendously important. As parties select their arbitrators, the choice must not be taken lightly. Many elements should factor into that decision.
Information on specific arbitrators can be difficult to find and can require time-consuming research, as they may be scattered or simply inaccessible. That is why a number of in-house counsel entrust their external counsel with that decision.
Unfortunately, doing so induces numerous billable hours and does not ensure the best choice for your company.
In-house counsel are better positioned to make the best choice for their organization: they understand both the needs of a specific arbitration case and dispute resolution strategy while keeping in mind their business’s bottom line.
With the right tools and information, in-house counsel can be empowered to decide for their company.
Read our article on arbitrator selection and due diligence for tips and tools to help you become more autonomous at this stage of your arbitration cases.
Our Tips & Tools:
- Jus Connect by Jus Mundi is our professional network tailor-made for the arbitration industry. It provides all the insights you need to choose a suitable arbitrator for your dispute and your business’s bottom line.
- In addition, external counsel and experts also have profiles that you can “follow”. Stay updated on arbitrators’ new appointments, disqualifications, and new documents.
3 – Business & Market Intelligence
Arbitration is also about whether partners can be trusted. It usually entails that no appeal can be lodged, and partially rely on the parties’ goodwill to participate in the arbitral process and voluntarily enforce subsequent awards.
Therefore, monitoring your company’s partners, competitors, and industry to anticipate threats and mitigate risks is a must.
- Avoid unnecessary risks by getting informed about potential partners before contracting with them.
Make informed decisions as to which organizations your business should contract with by looking into their current arbitration cases, whether they tend to comply with arbitral awards, in which area they tend to not comply with their contracts, and more.
- Be aware of issues faced by or involving your partners and competitors so that you can mitigate your own potential future risks.
For instance, set up an alert on Jus Mundi on a competitor or partner, either through a keyword search or our new “Party” filter, and the filter “notice of intent” to be notified of a new arbitration case involving your competitor or partner.
Our Tips & Tools:
- Use RSS feeds to stay generally informed of the players in your industry.
- Make your life easy by setting up personalized alerts which arrive straight to your inbox, rather than manually combing through mountains of information. Learn more about our Monitoring & Alerts feature.
For all these reasons, monitoring legal and arbitral developments is critical.
Knowing what arbitral decisions are impacting your industry, how arbitrators rule on specific issues of interest, and how your partners and competitors deal with arbitration, are only a few of the breadth of information accessible to you through legal intelligence.
Jus Mundi is a unique legal intelligence solution empowering your in-house team to protect your company’s business and financial interests. We help you mitigate arbitration risks and maximize potential rewards while keeping costs and budgets in line. Try Jus Mundi for free and unleash the power of data.
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ABOUT THE AUTHOR
Clémence Prévot is a former arbitration lawyer, qualified in NY and Paris, who now manages Jus Mundi‘s Blog, content collaborations, newsletters, and our notorious Industry Insights Reports. She brings practical insights to the content created at Jus Mundi, thanks to her all-around experience in arbitration. She worked in law firms but also in an arbitral institution, as a mediator, and with third-party funders, in different jurisdictions.
Reach out to her with feedback, content ideas, and suggestions! (She doesn’t bill for her time anymore, so don’t hesitate to get in touch!)