International Dispute Resolution in the Corporate World (VIRTUAL) – IDR

International Dispute Resolution in the Corporate World (VIRTUAL) – IDR

Course Summary

International Dispute Resolution in the Corporate World is a VIRTUAL instructor led course presented by the energy training experts at Mennta Energy Solutions.

Global business is often defined by a number of key features – it requires massive amounts of investment, has long time horizons to payback, is very high risk and operates in an increasingly challenging technological environment. Ever more frequently, multi-party vehicles such as Joint Ventures become the norm, as those engaged seek to lower risk exposure and financial cost, (to name but a few reasons) through collaboration and sharing. As more business entities increasingly span the world, cultural interaction becomes more and more central and essential to successful global operations.

It is against this background that the scope for disputes and conflict unfortunately find firm purchase and manifest through a multitude of reasons and due to the impact of an almost limitless number of variables. The stakes are high, and the rewards are great, but the costs of getting things wrong are serious, both tangibly from a cost perspective, but also (and perhaps more importantly) from an intangible perspective through things such as damage to corporate reputation or loss of competitive advantage.

This course has been designed to provide a comprehensive understanding of what causes disputes within international business, and even more importantly, how to redress these issues in a pragmatic and constructive manner. Business is about relationships and it is the course author’s firm belief that many costly and time consuming disputes could have either been avoided, or settled far more quickly and cost efficiently, if parties had been armed with an awareness and understanding of how to move forward positively towards a resolution that is both long lasting and of mutual benefit. It is the Author’s hope that this training package might provide the basis that will allow organisations to achieve this goal.

Delegates will:

• Gain insight into the key dynamics of the modern international world of commence
• Understand why ‘self-interest’ is often a negative factor within a negotiation scenario
• Decide the most appropriate governing law for a contract
• Analyse stakeholder groupings and interface areas
• Know how to conduct an in depth due diligence 
• Examine international commercial arbitration and its key components
• Consider the positives and negatives of JV’s and what the implications may be from a dispute resolution perspective
• Assess the critical and common factors that arise post M&A transaction
• Identify the ramifications of foreign sovereignty to disputes arising
• Understand why CSR is an important part of ESG

Course Content

Overview of the international business operating environment – the 7 defining features of the industry:

• Global operations
• The technological dimension
• Stakeholders and interface management
• Geo-political factors
• The cultural dimension
• Structure of the industry – barriers to entry and exit
• Economies of Scale and Scope – why these are important to disputes
• The nature of risk
• Factors that cause conflict and disputes

 What is dispute resolution?

• Multi-parties – multi problems?
• The problem of self-interest – stakeholder agendas that differ from one another
• The United Nations Commission on International Trade Law (UNCITRAL) 
• The ‘ladder’ of dispute resolution – negotiation (formal and informal); mediation; adjudication (expert determination); arbitration
• The value of a coherent organisational dispute resolution policy

The contractual dimension

• Key issues in negotiating a commercial contract
• Drafting dispute resolution clauses – what should they contain to be effective?
• What law will ‘govern’ the contract?
• The critical importance of ‘scope’ relative to governing law clauses
• Frankenstein clauses
• Issues of enforceability; privacy and confidentiality

Due diligence and stakeholder identification and management:

• What is the purpose of ‘Due Diligence?’
• The ‘key’ areas of a corporate DD  - proprietary technology; access to markets; transparency; corporate image; social and environmental policies; financial strength
• The DD process – how to conduct one, some useful techniques
• Stakeholder and interface management

 International Commercial Arbitration

• The commercial arbitral process explained
• The New York Convention – enforceability of arbitral awards
• Appointment of an arbitrator/arbitral tribunal
• Ad hoc vs. Institutional arbitrations
• The ‘seat’ of the arbitration
• The ‘Doctrine of Separability’
• The multi-tiered ‘escalation’  arbitral clause
• ‘Forum shopping’ explained
• Interim awards – a good idea?
• Grounds for challenging an arbitral award

 Joint Ventures

• Common forms of JV’s
• Understanding the key legal aspects involved in JV’s – due diligence; mutual disclosure
• The Structure of the JV - what disputes can and do arise from– clarity in the purpose of the JV (goals and objectives); management and control; financial commitments and liabilities; ownership of IP; miscommunication and political behaviour

Disputes that arise post M&A 

• The problem with organisational integration – no shared vision
• The ‘clash of cultures’ – conflicts in goals and objectives of the parties; different management styles; poor communication across stakeholder interfaces
• The uncertainty of change – a breeding ground for dispute
• Success is a longer term perspective – often misunderstood
• The problem with benchmarking – how different is the future environment likely to be?  Future operational and financial performance is difficult to quantify

 Foreign sovereignty – disputes over boundaries

• The location of natural resources – a key driver for international boundary disputes?
• Other factors – nationalism; culture; religion
• Who controls cross border assets – the management and the physical operations?
• The issue of financial liability and ownership of the parties – who pays for what?
• Sole risk and issues of redetermination – a natural dispute resolution?

 Dealing with Host Governments

• Government drivers – collection of economic rent
• Recovery mechanisms 
• Control over level of resource exploitation – royalties and taxation – do they incentivise or deincentivise?
• The potential problem of local content provisions

 Corporate social responsibility and the cultural dimension – foundational blocks to prevent and manage disputes?

• CSR – a yardstick for best practice
• CSR – a wide scope of potential disputes
• CSR and stakeholder management
• The power of effective dialogue
• Having a clear ‘exit’ strategy
• Cultural sensitivity and awareness – preventing disputes through empathy and common sense?