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Predictions for dispute resolutions in 2022
In addition to more cyber attacks, increased ESG litigation and further emphasis on cryptocurrencies, the dispute resolution space can expect a lot of changes over the next 12 months, according to the head of Herbert Smith Freehills’ practice.
Naomi Neilson
Herbert Smith Freehills’ (HSF) Australian head of the dispute resolution practice, Anna Sutherland, has made nine major predictions for the space in 2022, all of which highlight “many of the issues that are at the top of corporate Australia’s agenda”. Each will create a “range of opportunities and challenges” for clients and firms alike.
The practice also predicted some stabilisation in the pricing and the availability of directors’ and officers’ (D&O) insurance as new insurance capital enters the market.
“This stabilisation may be assisted by recent legislative reforms affecting the litigation funding market, assuming those reforms pass through the senate,” HSF’s practice experts noted and added that “regardless, we expect policyholders to continue to scrutinise the value offered by their D&O insurance”.
With climate litigation rapidly increasing – and expectations that there will be more litigation regarding the accuracy and feasibility of companies’ ESG disclosures – HSF said to expect more of this in 2022. There should be a particular focus on the financial services sector, in addition to the energy and resources companies.
Off that, dispute resolution practitioners should expect “improved governance leading to increased reports of misconduct” as the ESG focus ramps up, in addition to widening obligations to report to regulators and more whistleblowing activity.
HSF’s dispute resolution experts advise that to keep pace with this trend, “boards and senior executives should be focused on their internal reporting processes and culture to ensure significant issues are brought to the attention of senior officers”.
Another prediction is to expect cyber attacks to “increase in frequency and ferocity”, which will lead to a rise in data litigation. HSF’s practice noted that regulators had shown greater willingness to take action against those businesses that fail to maintain adequate cyber systems, which will likely continue into 2022.
Cryptocurrencies and their regulation will also make headlines over the next 12 months, as market manipulation, scams, intense volatility and systemic risks continue to present challenges for businesses, consumers and regulators alike.
Partner and head of the firm’s Melbourne disputes practice, Harry Edwards, commented: “The question for regulators is whether to shoehorn crypto into existing financial regulatory frameworks or to design a new standalone regime. That’s likely to be considered at length by Parliament this year.”
Moving on, HSF predicts that ASIC will continue to take action on issues where consumers have suffered harm and are seeking remediation, despite chairman Joe Longo’s focus on moving away from its “why not litigate” stance.
The practice also predicts advancements in green solutions and medtech driving IP litigation. The experts predicted greater patent litigation relating to environmental solutions and to medical consumer technology, which are areas that will “deliver continued innovation as a result of companies’ increasing focus on ESG”.
Finally, HSF’s dispute resolutions practice expects to see an uptick in the use of arbitration in the technology sector, consumer products and in banking: “We think businesses in these sectors will be attracted to a few features of the arbitration process, such as confidentiality and the enforceability of awards.”
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
