Winning before the first hearing: a strategic framework for commercial disputes

June 2026  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

June 2026 Issue

The popular image of a commercial dispute is a courtroom battle, with two sets of lawyers, a tribunal, and a winner and a loser.

In practice, the most consequential decisions are made months or years earlier: in the boardroom when a contract is signed, over a meeting when a relationship begins to sour and at the lawyer’s desk when instructions first arrive.

By the time a dispute has crystallised into formal proceedings, many of the most important choices have already been made, often without management realising it.

This article offers a framework for businesses and in-house counsel who want to approach disputes not as events to be managed reactively, but as outcomes to be shaped proactively.

Defining winning

The first question any experienced disputes lawyer should ask is: what does winning actually mean for this client? The answer is rarely just: obtain a judgment in their favour.

In commercial disputes, success has multiple dimensions – the legal outcome, the financial cost of getting there, the reputational implications of how the dispute is fought and the operational impact on the business while it is underway. A client who secures a favourable award after years of management distraction, damaged commercial relationships and bruising public proceedings may have won the battle but lost the war.

This is not hypothetical. Disputes lawyers regularly act for clients whose real objective is not to recover a particular sum, but to send a signal to the market, preserve a relationship with a counterparty or regulator, or extract themselves from a difficult position with their credibility intact. Early alignment on what constitutes a successful outcome is critical to informing the overall strategy driving the dispute.

The lesson for clients is simple: share the full commercial context with external counsel, not just the legal question. Counsel who understand the full picture from the outset are better placed to advise than those who are simply told to fight a legal case.

The pre-dispute window

Many disputes are not lost in the hearing room. They are lost, or made far more expensive, in the period between when a dispute becomes foreseeable and when formal proceedings begin.

This window is where evidence is preserved or destroyed. A document preservation notice, issued promptly when a dispute crystallises on the horizon, can be the difference between a coherent factual narrative and a costly reconstruction exercise. Where key witnesses are likely to leave the organisation, their account can be captured contemporaneously, locking in the factual record while events are fresh and witnesses are cooperative.

It is not uncommon for organisations fighting a dispute years after the initial events to be hamstrung by crucial documentary records no longer being available and former employees needed to fill critical evidentiary gaps having moved on.

This is also the time when correspondence is exchanged and discussions take place between parties, setting out their respective positions on disputed matters. Communications which are consistent in their characterisation of the facts, careful in their concessions and conscious of how they will read before a tribunal are a very different proposition from those written in the ordinary course without that awareness. External counsel brought in early can identify vulnerabilities, help craft the narrative, and ensure the paper trail supports rather than undermines the position the client will eventually need to take.

The practical takeaway is this: if a transaction is going wrong, or a letter before action has arrived, or there is even a credible risk of a dispute, act now; do not wait for proceedings to be served before engaging external counsel.

Thinking backwards from enforcement

A favourable award or judgment is only as valuable as its enforceability. For businesses engaged in cross-border commerce, this is not an abstract concern but a strategic variable that should inform every major decision in a dispute.

An arbitral award under the New York Convention is enforceable in over 170 countries. In most cases, that makes it a more reliable instrument than a domestic court judgment that may not be as easily enforceable in foreign courts where assets of the opposing party may be located. Where an opposing party’s assets sit in jurisdictions with questionable enforcement regimes, the forum in which a dispute is fought may matter as much as the merits of the underlying claim.

Where a defendant’s assets are located only in jurisdictions where enforcement of foreign awards and judgments in the local courts is difficult and protracted, prospective claimants must have a strategy to avoid the outcome of a hard-fought and often costly dispute being merely a paper award or judgment with no tangible returns. In high-value cross-border disputes, it pays to make an early assessment of where the counterparty’s assets sit and whether those jurisdictions present meaningful enforcement options.

This assessment, done before a dispute is filed rather than after a favourable award or judgment is obtained, shapes the entire case strategy, including whether a negotiated settlement is the more sensible option. If such an assessment is conducted at the deal stage, the inclusion of certain self-help remedies into the contract (subject to commercial constraints) or securing third-party insurance may even avoid the dispute altogether.

The calculus is equally important for defendants. Defending a claim successfully is only one measure of success. The cost of that defence, in management time, legal spend and reputational exposure, must be weighed against the value of a litigated outcome. Where enforcement options are limited or the cost of a prolonged defence exceeds the value of the claim, a negotiated resolution may deliver more than a technical victory.

Creative tools beyond the standard playbook

The standard disputes playbook – challenge jurisdiction, file extensive pleadings, pursue exhaustive disclosure and litigate to judgment – is well-known to sophisticated parties. The most effective outcomes often come from deploying tools the other side does not anticipate. Two examples illustrate this.

Interim relief is one such tool. A well-timed injunction, obtained quickly when the factual and legal groundwork has been carefully laid, can fundamentally shift the commercial dynamic of a dispute. It can neutralise a counterparty’s leverage, preserve the status quo while negotiations continue, and demonstrate that the applicant is serious and capable of moving fast. In practice, the injunction itself, rather than any subsequent hearing, is often what brings a counterparty to the table.

Investor-state dispute settlement (ISDS) is another tool that businesses underuse, frequently because management is simply unaware of it. Where a company has invested in a jurisdiction covered by a bilateral investment treaty or free trade agreement, and that government has taken measures that cause loss – for example, abrupt policy reversals, discriminatory regulation or withdrawal of contractual commitments – ISDS may provide a neutral, enforceable mechanism for redress that domestic courts cannot. With trade policy in flux, more clients are finding this option worth taking seriously.

Settlement as strategy

The decision to settle is sometimes seen as a concession. It should be treated as a strategy.

Mediation, employed at the right stage with proper preparation and a clear-eyed view of the alternatives, is one of the most powerful tools available. It is not a sign of weakness. It is a recognition that the full economics of a dispute, including the cost of proceedings, the distraction to management and the effect on ongoing commercial relationships, must be weighed objectively against the value of a litigated outcome.

Knowing when to deal requires the same rigour as knowing how to fight: an honest assessment of the legal position, a realistic view of what a tribunal will do with the evidence available, and a frank conversation with management about risk appetite and commercial priorities. Some of the most valuable advice a disputes lawyer can give is: to settle now, on these terms and for these reasons. That advice takes courage to give and a willingness to hear.

Equally, knowing when not to settle matters. A counterparty that is not negotiating in good faith or is using mediation as a delaying tactic rather than a genuine attempt to resolve the dispute, should not be allowed to improve its position by being accommodated. The key lies in reading that dynamic correctly.

In practice, this critical judgment is best made when clients and counsel maintain an open, ongoing conversation about settlement from the very beginning, not as a fallback, but as one of the strategic options on the table at every stage.

Conclusion

The decisions that determine the outcome of a commercial dispute are rarely made in the hearing room. They are made in the months and years before – in how objectives are defined, evidence is preserved, enforcement is anticipated and settlement is approached.

By the time the first hearing arrives, most of what matters has already happened. The clients who consistently come out ahead are the ones who knew that and acted on it early.

 

Koh Swee Yen SC and Joel Quek are partners at WongPartnership LLP. Ms Koh can be contacted on +65 6416 6876 or by email: sweeyen.koh@wongpartnership.com. Mr Quek contacted on +65 6416 8124 or by email: joel.quek@wongpartnership.com.

© Financier Worldwide

BY

Koh Swee Yen and Joel Quek

WongPartnership LLP

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