When contracts go wrong, your first decision is the forum: English court litigation, London-seated arbitration, expert determination, construction adjudication, or a mediated deal. Each route trades speed, confidentiality, scope of evidence, and enforceability in different ways. The Business and Property Courts provide powerful interim remedies and active case management, but are public and disclosure-heavy under PD 57AD. London arbitration offers privacy and global enforceability, now with clarified court support against third parties under the Arbitration Act 2025. Courts expect serious engagement with ADR after Churchill v Merthyr Tydfil. Expert determination remains a fast, contract-driven option for technical quarrels. Construction adjudication can stabilise project cash flow. Cross-border matters need early planning on governing law, jurisdiction, service, and enforcement, including the Hague 2005 and 2019 Conventions and the New York Convention for awards.
1) Picking the right route: litigation, arbitration, ADR, expert determination
High-stakes fights are won or lost at the route-selection stage. Your choice drives speed, confidentiality, remedies, evidence scope, appeal risk, and enforceability abroad.
Litigation in the High Court
Complex business disputes are usually issued in the Business and Property Courts: a specialist umbrella across the Commercial Court, Chancery, and Technology and Construction Court, with active case management and experienced judges.
Disclosure is no longer one-size-fits-all. Practice Direction 57AD tailors disclosure through defined models, an Issues for Disclosure List, and a Disclosure Review Document that aligns scope to proportionality. If you design it well, you can focus cost where the truth lives, and expand where necessary to capture key contemporaneous documents.
Litigation advantages: robust interim relief, ability to join third parties, and precedential outcomes. Trade-offs: a public process, broader disclosure and the possibility of appeals extending timelines.
Arbitration seated in London
Arbitration is often preferred for cross-border contracts because it is private, enforceable, and tribunal-led. The Arbitration Act 2025 clarifies the court’s powers to assist arbitrations, including the ability to make section 44 orders against third parties, strengthening options for interim injunctions and evidence preservation.
Institutional rules add speed tools. Under the LCIA Rules 2020, parties can seek an Emergency Arbitrator before the tribunal is formed and use Early Determination to dispose of claims or defences that are manifestly without merit. These options compress timetables where urgency or obvious points exist.
Confidentiality is a major attraction in London arbitration, reinforced by LCIA provisions, subject to limited carve-outs for legal duty and enforcement. Draft clauses carefully and manage court interfaces to avoid leakage.
Arbitration advantages: privacy, tribunal expertise, global enforceability under the New York Convention, and easier multi-jurisdiction strategy. Trade-offs: limited appeal routes and narrower third-party joinder without consent.
Mediation and Early Neutral Evaluation
The Pre-Action Conduct Practice Direction expects parties to exchange information and consider ADR before issuing. The Court of Appeal in Churchill v Merthyr Tydfil confirmed that courts may stay cases or order non-court dispute resolution where proportionate. Mediation has moved from optional to strategic. Time it around disclosure cliffs, expert reports, or regulatory milestones.
Expert determination
Where the dispute is technical or accounting-heavy, expert determination can be faster than court or arbitration. It is a creature of contract. Courts treat a properly mandated expert’s decision as final and binding, with limited grounds to set aside, for example fraud, manifest error, or departure from mandate, as signposted in Jones v Sherwood Computer Services and later cases. Draft the clause precisely: remit, materials, standard, and timetable.
Construction adjudication
Construction contracts benefit from a statutory fast-track. Under section 108 of the Housing Grants, Construction and Regeneration Act 1996, either party has a right to refer a dispute to adjudication at any time, and the TCC enforces adjudicator decisions swiftly, with limited grounds to resist. Use it to stabilise project cash flow in portfolio companies.
Drafting leverage and hybrid models
- Jurisdiction and governing law: If you prefer the English courts, use exclusive jurisdiction wording that accesses the Hague Choice of Court Convention 2005 for recognition and enforcement in contracting states.
- Arbitration clauses: Choose a London seat, specify rules, add emergency relief and consolidation language, and include a carve-out for urgent court injunctions.
- Escalation clauses: Build in negotiation and mediation or ENE before litigation or arbitration. Courts will expect you to have considered ADR and can order it where proportionate.
- Decision frame: Need privacy and international enforceability: choose arbitration with emergency tools and section 44 support. Need third-party joinder, precedent, or broad disclosure: choose the Business and Property Courts with a proportionate PD 57AD plan. Technical quarrel over numbers: consider expert determination with a manifest-error safety valve. Construction timelines or cash flow: use adjudication.
2) Pre-action strategy and notices that protect your position
Read the contract first. Identify notice clauses, cure periods, escalation steps, service mechanics, and ADR requirements. Map hard dates. Send compliant notices to the addresses and by the methods specified. Describe the breach and remedy sought, reserve rights, avoid admissions. Preserve evidence with a legal hold across email, shared drives, messaging apps and personal devices used for work. Build a secure data room and a single chronology.
Run two channels: a without-prejudice settlement track and open correspondence that positions you for court or arbitration. Consider standstill agreements on limitation. Use targeted information requests and interim undertakings to de-risk. Propose mediation or ENE at a defined milestone, then document why ADR is proportionate to pre-empt costs arguments. The Pre-Action Conduct Practice Direction, and the specific protocols where applicable, sit in the background of every decision.
3) Evidence, disclosure, and witnesses in UK disputes
What wins cases: contemporaneous documents, board minutes, financial models, chats and messaging apps, and clean expert instructions. In the Business and Property Courts, PD 57AD requires parties to identify Issues for Disclosure and choose models that fit those issues, documented through a Disclosure Review Document. Design disclosure to the real contests and do not let it balloon.
Witness evidence is disciplined by PD 57AC. Trial witness statements must confine themselves to what witnesses saw or did, and must not argue the case or recite documents. Non-compliance can attract sanctions.
4) Interim remedies to stabilise risk
English courts can act quickly. Common interim remedies include freezing injunctions, search orders, delivery up, imaging orders, orders for disclosure against non-parties, and security for costs. The American Cyanamid test directs the court to consider whether there is a serious question to be tried and whether the balance of convenience favours relief. Prepare to give a cross-undertaking in damages.
5) Substantive defences and pressure points
Consider force majeure, hardship wording, and frustration where performance has become impossible or radically different. Inspect pre-contract statements for misrepresentation. Stress-test exclusion and limitation clauses under the Unfair Contract Terms Act 1977 reasonableness test, and be alert to the modern penalty clause analysis from Cavendish v Makdessi. These issues can reshape leverage in settlement and at trial.
6) Remedies: damages, specific performance, termination, account of profits
Damages aim to put you in the position as if the contract had been performed. Confirm recoverability rules on remoteness and mitigation. Watch liquidated damages for penalty risk. Specific performance or mandatory orders can matter in M&A, technology supply, and exclusivity contexts where money will not repair the harm.
7) Costs, funding, and settlement engineering
Part 36 offers create predictable cost incentives. Use them early and again after key disclosures or expert reports. Consider security for costs applications where appropriate. Funding options include conditional fee arrangements, damages-based agreements in limited contexts, and ATE insurance to manage adverse cost risk. Build settlement architecture: confidentiality, non-disparagement, staged payments with security, consent orders for enforcement.
8) Cross-border issues: governing law, jurisdiction, service, enforcement
Governing law and jurisdiction: Strong, exclusive English jurisdiction clauses benefit from the Hague Choice of Court Convention 2005, which supports recognition and enforcement of resulting judgments in contracting states. Post-Brexit, English courts have also reopened the door to anti-suit injunctions to restrain proceedings in EU courts brought in breach of exclusive English jurisdiction clauses. Where the contract has an arbitration clause, the Supreme Court has confirmed powerful anti-suit protection to uphold the negative promise not to litigate elsewhere.
Service and procedure: Cross-border service is governed by CPR Part 6 and PD 6B. Plan timelines and permission requirements at the outset to avoid jurisdictional challenges.
Enforcement:
- Arbitral awards: The New York Convention underpins broad recognition and enforcement, one reason London arbitration travels well.
- Court judgments: From 1 July 2025, the Hague Judgments Convention 2019 applies in the UK for proceedings commenced on or after that date, improving mutual recognition and enforcement with other contracting states, including the EU, alongside the existing Hague 2005 regime for exclusive clauses. For non-Convention routes, expect local law procedures and variable timelines.
9) Governance and reputation during a dispute
Nominate a single dispute lead, approve a phased budget, and set a weekly reporting cadence. Maintain a privilege map and messaging plan for investors, lenders, staff, and regulators. In parallel, prepare a settlement runway, including mediation windows and authority levels.
10) Conclusion: design the outcome, then pick the process
Decide your business outcome first. Then select the route and interim tools that best deliver it. Measure success in cash recovered, risk removed, and time saved. The English framework is rich: use it deliberately, and coordinate counsel across borders early.
Contact Linkilaw for expert guidance. Our specialist team provides initial case assessment, timeline analysis, and strategic options review to help you navigate even the most complex cross-border inheritance disputes efficiently and effectively.
