Dispute pursuit

This year is shaping up to be a big year for litigation and alternative dispute resolution in the UK. The dread phrase ‘the credit crunch’ is assisting with that, but so too are the big-ticket disputes such as Buncefield and, of course, the increase in competition cases.

UK law firms, however, are not the only ones involved in these cases. US heavyweights have started to make their move into the arena. Here, three US firms discuss their strategies to take advantage of the upturn in disputes in the UK.

Jo Rickard, litigation partner, Shearman & Sterling

The London dispute resolution practice for some US firms is really just a matter of temporal and geographical convenience. They need a small number of lawyers operating on GMT who can deal with the limited UK elements of what are really domestic US disputes. Insofar as those London teams have any independence, they tend to focus on arbitration.

Shearman & Sterling has a different approach. The past two years have seen a considerable strengthening of our English litigation offering, particularly in the fields of banking and finance. During this period we have acted on a variety of high-value domestic and transatlantic investigations and disputes for investment banks, hedge funds and large corporates. We think this development will serve us well in the current economic climate.

Furthermore, this litigation component complements perfectly our existing London arbitration practice. This practice is one of the oldest of its kind among the US firms. Today that team conducts its own high-value, complex arbitrations, as well as being an integral part of our highly rated global arbitration practice.

As a consequence, Shearman is one of a limited number of firms in London that can offer genuine transatlantic expertise. A problem that arises for a client in just London or New York can often be resolved relatively easily. However, when a problem arises concurrently in both jurisdictions, clients can find themselves facing a bewilderingly complicated set of overlapping – and often inconsistent – legal and regulatory issues. This calls not only for sound legal advice, but also for clear strategic thinking that will allow the client to navigate a path through these issues in both countries. Many firms have the relevant expertise in either London or New York. Far fewer have both.

Peter Rees, litigation partner, Debevoise & Plimpton

The strategy for the development of Debevoise & Plimpton’s London litigation practice, at a time of expansion within the UK litigation market, is to establish in the London office a team of high-quality litigators capable of handling all aspects of litigation and arbitration work from initial client instructions to advocacy in court or before an arbitral tribunal.

Debevoise’s strategy of bringing a US trial lawyer approach to English litigation is exemplified by the recruitment in 2007 of Lord Goldsmith QC, one of a handful of top commercial litigation silks prior to his role as Attorney General, and, in 2006, of myself as a solicitor-advocate. Lord Goldsmith’s arrival also means Debevoise can work in partnership with other firms to provide high-level advocacy on the most important cases.

Debevoise’s approach to handling English litigation, together with its reputation as one of the foremost firms in international arbitration, has helped attract associates of the highest calibre to the London litigation team, with qualifications in a number of jurisdictions and fluency in a variety of languages. This, coupled with Debevoise’s excellent client base, means the firm’s London litigation team is attracting high-quality work and is continuing to expand. In the course of the past 12 months the team has more than doubled in size, expanding its capability in response to market demand.

Last year was the busiest year so far for the London litigation team. It included a significant victory in the Court of Appeal for the Occidental Exploration and Production Company against a jurisdictional challenge brought by the Republic of Ecuador in relation to a $75m (£37.25m) Uncitral arbitration award.2008 already promises to be even busier, with the team handling a number of cases in the Commercial Court and the Chancery Division.

Jamie Harrison, head of London litigation, Winston & Strawn

As a former Freshfields Bruckhaus Deringer litigation solicitor now working in the London office of a US firm, I am well positioned to see the differences in the way UK and US firms approach dispute resolution. The experience that US firms such as Winston & Strawn have of taking part in complex or even ‘bet the company’ litigation can only be an advantage if there is an economic downturn.

That said, the US litigation culture does not always translate well into a European context. There is, for instance, no equivalent of a plaintiff bar that brings high-value civil group actions against companies, and the approach of the respective court systems to potential class actions is very different.

Some of the first US firms into London fell foul of these variations, but US firms are now taking a more bespoke approach to London. In particular, they recognise London’s growing importance as a centre for international arbitration and are resourcing their London offices accordingly. At Winston this is an area in which we are actively looking to recruit additional talent in London. An increasing number of our US clients are seeing the advantages of using arbitration – speed, flexibility and confidentiality – compared with going to court, especially for the enforcement of international contracts, which are increasingly governed by English law.

By combining the experience gained in the US with an understanding of the nuances of European dispute resolution (not to mention charge-out rates linked to the US dollar), US firms in London are set to do well if there is an increase in the number of disputes.

Whereas in English firms the disputes teams are often standalone practices, litigation – whether in terms of waging it or avoiding it – is a fundamental part of practice in the US. This means US law firms are well placed for an upturn in disputes – as dispute resolution is in the DNA of US law firms.