This year’s survey, the largest industry-sector empirical study ever conducted in international arbitration, sought to map out and investigate the prevalent interests and preferences of TMT players and their approach to dispute resolution. The results collected reveal a wealth of information from practice areas which were, until now, underexplored.
The 2016 report sheds light on the dispute resolution toolkit available to TMT players, including the use of international arbitration and other dispute resolution mechanisms. It highlights respondents’ preferences, prior experiences, (dis)satisfactions, predictions and challenges for the future. The study further reveals the protagonists of the dispute resolution decision-making processes, what influences these players in real-life negotiation contexts, and divulges the industries which players believe are more likely to face such disputes.
As an amuse-bouche for the readers, the report revealed, for example, at least 17 different types of TMT related disputes, many of them involving in excess of USD 100m, multi-faceted scenarios and different challenges faced by all players in this process. The report also underlined the need to design dispute resolution strategies as a way to stay ahead of the game. As to predictions, IP, collaboration and data/security were cited as the most contentious areas.
In relation to dispute resolution policies and preferences, the survey data showed that arbitration continues to be encouraged, although mediation was the dispute resolution mechanism of choice for in-house respondents. At an all-respondents level, arbitration is the preferred mechanism but litigation was the most used.
Furthermore, the study contributes to a more profound debate on improving dispute resolution mechanisms. Respondents were invited to express their views on factors they considered as promoting dispute resolution efficiency most going forward. In this connection, the survey included questions on transparency mechanisms, specialisation of institutions, rules and decision-makers, and online tools. The top 3 changes to make international arbitration more appealing are: lower costs, more industry experts appointed, and transparency mechanisms.
In this regard, it is also worth noting that international arbitration is and, echoing the respondents’ choices, will remain a popular choice: 92% believe that it is well suited for TMT disputes and 82% demonstrated optimism about the future of international arbitration: it will continue to grow.
The 2016 Survey is certainly an invitation to explore the exciting and yet (at least to some of us) unknown world of “TMT”; idiosyncratic and seemingly driven by multiple stimuli. In the report, readers are invited to unveil the mechanics behind TMT disputes and understand the considerations that surround the decision-making processes and strategies in these practice areas.
The full report and key findings are available here.