Overcoming reluctance to arbitrate in the TMT sector

Drawing on two surveys on the use of arbitration in technology, media and telecoms disputes, Susan Field, a senior associate and solicitor advocate at Herbert Smith Freehills in London, considers whether parties in the TMT sector are moving away from their traditional reluctance to use international arbitration.

The technology media and telecoms (TMT) sector has grown by leaps and bounds in recent years. With rapid, sometimes cross-border, development and the increasing spend and dependency on technology, comes the unavoidable pain of disputes as deals go wrong, partnerships turn sour, or things do not go to plan. There are already a large number of TMT-related disputes globally, many involving significant sums. According to a survey of the TMT sector conducted by Queen Mary University of London in 2016 (International Dispute Resolution Survey – Pre-empting and Resolving Technology, Media and Telecoms Disputes), 23% of participants had experienced more than 20 TMT disputes over the past five years. More than a third said that they had been involved in at least one dispute valued in excess of US$100 million. The QMU survey also identified the types of TMT disputes most commonly encountered: these included IP, licensing, regulatory, supply chain and consumer disputes, though there was of course variation in the type of disputes encountered in the individual technology, media and telecoms industries.

More recently, in 2017, the Silicon Valley Arbitration and Mediation Centre (SVMAC) conducted its own survey identifying among other things the top perceived benefits of arbitration among technology companies.

While the surveys suggest there is a growing market for dispute resolution in the TMT sector, there remains a perception that parties are reluctant to use it. This article looks at whether there is any basis for this and how the arbitration community should respond.

Continue reading

High Court confirms UNCITRAL Tribunal Award on jurisdiction

The High Court has confirmed an UNCITRAL Tribunal's Award on Jurisdiction, which rejected jurisdiction under an investment contract (Contract) and the 1994 Kazakh Law on Foreign Investment (FIL).

The Court placed particular emphasis on expert evidence of the principles of contractual interpretation under the Civil Code of the Republic of Kazakhstan.  It was not prepared to depart from these principles, which required a literal interpretation of the Contract and FIL.

Whilst the Court's reasoning differed in some respects from that of the Tribunal, it was broadly consistent with the Award on Jurisdiction. 

Continue reading