Factors to consider when mapping objectives and tactics in dispute resolution

June 2025  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

June 2025 Issue

Complex and large-scale commercial disputes, whatever their type, demand a multifaceted dispute resolution strategy to reflect the intricate relationship between the legal, technical and factual issues involved. However, at the heart of any such strategy lies the need, from the very outset, to carefully identify and map clear objectives for the full lifecycle of the dispute.

This influences every aspect of how a claim or defence is then prosecuted, with tactics developed and deployed to achieve those aims. While the issues are many, this article explores at a high level a handful of key matters relevant to how and why a party and its legal counsel need to work closely to map objectives within a disputes context, and to continuously review them as the case develops.

The applicable dispute resolution forum and associated procedural framework will play a significant role in the composition of any strategy. The observations below consider the issues, where relevant, from the perspective of commercial arbitration. As a forum in which the parties have broad autonomy to shape the rules and procedure, how a party exercises that ability in preparation for, and during, an arbitration can have a significant bearing on how the case is presented and ultimately determined.

The mapping process begins with a clear understanding of what the party truly seeks to achieve. Depending on the circumstances, this may be financial compensation or conversely, the limitation of its financial liability. It may be driven by reputational factors, strategic commercial considerations or otherwise. From there, every step is aligned in pursuit of those ultimate goals.

A comprehensive assessment of the case is naturally an important step to be taken at the outset. It will determine in broad terms what legal redress is available in the circumstances which, in turn, defines the general direction of travel. Evaluating whether legal requirements are satisfied by reference to relevant events and evidence is, of course, crucial. However, from a strategic perspective, the identification and recognition of constraints and weaknesses at an early stage is of paramount importance.

It is those issues where significant time must be spent when initially assessing what constitutes a realistic objective, and what actions then need to be taken to navigate those issues. The product of that exercise can only be as good as the information fed into it. Some parties take a view that providing their lawyers only with information which the party thinks will help the case, and leaving out matters which do not, is the most cost-efficient approach, and the one which is most likely to lead to success.

Ultimately, this creates a false economy; it is almost always more expensive to deal with such issues at later stages, and their emergence down the line can significantly jeopardise the chances of success. The information will invariably materialise at some point, and depending upon how and when it materialises, the damage may be irreversible. Where identified early, a strategy can be developed to own, manage and address these matters, and objectives established which take them into account.

Where such matters come to light by other means, the advantage in shaping the narrative is passed to the adversary. It is they who then gain the ability to first frame the relevance of the issue, and to the extent such matters are inconsistent with the case as already advanced, the opportunity to effectively counter the implications or perception, may no longer exist. That is not to say that an opportunity may not be given to amend a position, particularly in arbitration. However, the damage may, at that point, have already been done.

Access to key personnel is as important as access to documentation in the shaping of objectives. A case is only as good as the evidence which exists to support it. While contemporaneous documentary evidence will always be the primary and preferred source of evidence upon which a tribunal relies in reaching its determination, how that evidence is placed into the proper factual context will need to be explained by those who were involved at the relevant time.

To the extent that key witnesses are not available or unwilling to give evidence for a party, a strategy will need to be developed to address this, and objectives assessed with that constraint in mind.

Full transparency with the legal team often leads to a more efficient conclusion of the case, because it also reveals appropriate times in which to explore settlement, and the terms which ought to be put forward. A well-crafted mapping exercise will anticipate when these situations are likely to arise, and actions taken to develop them along with the negotiating position of the party. The use of settlement offers will also need to be considered on a tactical basis for the purposes of seeking potential cost protection, and in pursuit of broader aims.

Developed objectives will also feed into how a party approaches the constitution and appointment of the arbitral tribunal – seen as one of the most strategic and critical decisions to be made. Where a three-member tribunal is required and depending on the specific arbitration agreement, parties typically appoint one member each, with the third member appointed by the other two following receipt of representations from the parties (or failing that, nominated by an agreed arbitral institution). Arbitrators are required to be, and remain, independent and impartial.

However, parties will research their candidates carefully and within the context of their identified objectives. This will usually involve the identification of arbitrators who are familiar with the relevant law, issues and industry involved. It will also involve an assessment of their approach to procedural matters, including timetabling, evidence and disclosure. In the absence of developed objectives at this stage, a party will be at a serious disadvantage where it is unable to consider the general approach and background of candidates within the context of case strategy.

One of the main advantages of arbitration in cross-border disputes is the ability, in theory, to enforce an award against assets which a party holds in numerous jurisdictions around the world, where those jurisdictions have acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

However, mapping enforcement options ought not be left until after an award has been issued. It is a critical aspect of initial strategy development, including the identification of the assets, their location and whether steps need to be taken in that jurisdiction to protect disposal by means of injunctive relief or other interim measures.

It remains the reality that some jurisdictions are more arbitration friendly than others. Any issues or specific requirements relevant to the location of likely enforcement need to be considered and addressed from the outset. Aside from being a practical reality, it also feeds into the process of properly defining relevant objectives and identifying the avenues through which those objectives can be achieved.

Finally, objectives need to be kept under constant review to ensure that they remain aligned with the case as it develops and the issues on which matters will ultimately turn. The landscape can change very quickly during formal dispute resolution, and it is important that any strategy can be adapted efficiently, to ensure that the case remains coherent, consistent and persuasive. A failure to do so may also lead to missing opportunities to take advantage of procedural and settlement openings.

Mapping objectives is not only a useful tool from which resources and costs can be deployed and managed. It is an exercise which is crucial to overall case execution, forming the basis from which every procedural, pleading and evidentiary choice is then made.

 

James Bremen and James Mayers are partners at Joseph Hage Aaronson & Bremen LLP. Mr Bremen can be contacted on +44 (0)7717 341 058 or by email: james.bremen@jha.com. Mr Mayers can be contacted on +44 (0)7753 466 747 or by email: james.mayers@jha.com.

© Financier Worldwide

BY

James Bremen and James Mayers

Joseph Hage Aaronson & Bremen LLP

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