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How does dispute resolution respond to increasingly complex shipping markets?

Posted on: 21 June 2021

“How does dispute resolution respond to increasingly complex shipping markets?” was the subject of discussion at Maritime London’s latest webinar, hosted by Chief Executive Jos Standerwick on June 11th. Organised in partnership with foundation members Hill Dickinson LLP the live and interactive event explored how the English legal market was reacting to the imperative for the shipping industry to decarbonise and what consequential effects it had on dispute resolution. It considered the utility of using dispute resolution boards in increasingly complex and costly newbuilds and the evolving use witness statements and cross examination in arbitrations.

Thomas Macey-Dare QC, Barrister at Quadrant Chambers and one of three panellists said: “As the world economy begins to grow again, and decarbonisation sits at the top of the political agenda, the scene is set for a new technological revolution in shipping. Tough environmental regulations will increasingly drive older, more polluting, tonnage out of the market, to be replaced by efficient new ships, powered by cleaner fuels and equipped with advanced information and operational technology. Today’s economic, regulatory and technological conditions may be new, but the overall pattern is not new. It is one that has faced the shipping industry, and maritime dispute resolution sector, many times before. The emerging drivers of change and complexity will present a number challenges for the sector: where to find the expertise needed to resolve cases in new technical fields; how to control the legal costs of increasingly complex disputes; and how to manage the multiplicity of parties and disputes generated by complex projects and major incidents? London must meet these challenges head-on if it is to stay ahead of the competition from other international dispute resolution centres.”

Ben Goss, Maritime Arbitrator and Mediator commented: “Dispute Boards are a unique form of alternative dispute resolution geared towards complex projects and ensuring optimal project outcomes by assisting parties to avoid disputes altogether and provide an interim-binding resolution of disputes when that’s not been possible. Dispute Boards promote transparency, good governance and a collaborative, best-for-project outcome. In a maritime context, the commissioning and decommissioning of offshore structures, such as oil rigs and wind farms, and shipbuilding are areas where Dispute Boards would most obviously be well suited, and there is no shortage of interest and expertise available within the UK’s maritime and legal services cluster to provide this service – see the LMAA’s website for a list of its members and supporting members that have expressed an interest in serving on Dispute Boards.”

Lewis Moore, Partner Hill Dickinson LLP discussed ‘hot tubbing’ or, more formally, ‘concurrent expert’ evidence, a technique aimed at resolving disputes with numerous complex technical issues, which enables the expert evidence to be explored simultaneously and on a topic by topic basis. He said: “Guidelines are in place for this process. The Civil Procedure Rules governing court procedure contains a comprehensive code for the taking of expert evidence concurrently. The Chartered Institute of Arbitrators have also produced a detailed code giving helpful guidance.”

“The key to the process is the joint report produced by the experts following the experts’ meeting. This sets out the areas of disagreement which need to be explored in the hot tub.

“The process is led by the judge or the arbitrators who will, in the first instance direct their questions to the experts. If appropriate the experts can respond and raise questions to each other in the hot tub. Questioning by Counsel for the parties comes at the end of the process,” he added.

“While this involves a greater degree of front-loading in terms of preparation, hot tubbing can reduce the length of time spent at trial on issues of expert evidence. It will make the assimilation of the expert evidence an easier task for the tribunal and save costs.

Moore concluded: “Though it is still relatively novel, there have already been favourable judicial comments on hot tubbing in England. With the aim of achieving costs savings and improved decision-making, dispute resolution professionals in the UK are ready to step into the hot tub.”

Watch the replay video here.

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