Fulbright & Jaworski 2009 Litigation Trends Survey Report: Expect Increase in Commercial International Arbitration

Karl Bayer stumbled upon this year’s Fulbright & Jaworki’s Litigation Trends Survey Report and we thought you might be interested in reading it.

Here is an excerpt:

How to Resolve? Litigation versus Arbitration:

20. Commercial International Arbitrations Expected to Rise: Nearly a quarter of counsel from large-cap companies and 17% of all respondents expect an increase in the number of commercial international arbitrations they will be involved in over the coming year. Increases are expected, particularly, in the financial services, insurance, manufacturing and retail sectors.

21. Rate of International Arbitration Higher in U.K. and Among Retail/Wholesale: 22% of U.K. respondents say their company has been party to at least one international arbitration in the last 12 months, versus 14% of U.S. respondents. That number goes up to 29%, however, when looking only at large-cap companies. Moreover, 72% of retail and wholesale companies that participated in the survey commenced at least one international arbitration in the past 12 months.

22. Arbitration in Labor Suits – A Special Case: 15% of respondents said their company requires arbitration of disputes in non-union settings – that`s down from last year`s 22%. Why choose arbitration for these suits? The process is beneficial from an employee-relations standpoint, according to 83% of those respondents. Cost also is an issue: The median cost ($50,000) to arbitrate a single-plaintiff employment case is about half the median cost ($99,038) of litigating a single-plaintiff employment case to conclusion. Though arbitration is not the better route for everyone: Large-cap companies, on the whole, spend more on arbitrating single-plaintiff cases, with 61% of large-caps paying upwards of $50,000 per case. The median cost of arbitration for public companies is also substantially higher than for private companies.

23. For Domestic Disputes, Leaning Toward Litigation: 55% of U.S. respondents said that in disputes that are not international in nature, and when given a choice, they opt for litigation over arbitration – from both the defensive and offensive side. (In the U.K., however, arbitration for domestic disputes remains popular with 51% of U.K. respondents saying they opt for arbitration in domestic disputes.) The primary considerations for choosing one over another are cost, efficiency, higher comfort level and predictability of outcome.

24. Why Are Some In-House Counsel Choosing Litigation for Domestic Disputes? In the U.S., some in-house lawyers believe litigation is more likely to produce decisions on the legal merits rather than an arbitrator`s unchecked sense of fair play. What`s more: arbitration can be no less expensive or time-consuming. The median cost for arbitration – $50,000 – is way up from last year`s median cost of $35,000. Litigation, some respondents say, offers greater discovery opportunities, greater availability of dispositive motions and more established rules.

Any thoughts?

You may download Fulbright’s 6th Annual Litigation Trends Survey Report here.

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