Disputes and Claims

As multinational companies and governments increasingly face claims arising from transnational business ventures, investments and project delays, International Arbitration has become the preferred means of dispute resolution.

Our International Arbitration specialists have dealt with complex quantum and delay issues across hundreds of litigation and arbitration matters and can bring their wealth of knowledge and industry expertise to inform issues at the heart of these claims.

We help clients to investigate, assess and prepare for commercial and treaty-based claims, working closely with them at each stage of the dispute resolution process to:

• Conduct an early case assessment and develop the strategy
• Value and quantify damages, lost profits or opportunities
• Prepare detailed economic and market analysis
• Investigate accounting and tax issues relating to claims
• Provide expert reports and testimony

We draw on our deep industry, geographical, economic and valuations expertise to ensure that our clients benefit from the global reach and local knowledge of our wider Network. Our extensive expertise includes:

• Recent testimony under the rules of major dispute resolution institutions including the ICC, UNCITRAL, ICSID, LCIA, DIAC, AAA and SCC.
• Submission of written or oral testimony in over 120 international arbitration proceedings.
• Significant experience in the Oil, Gas, Electricity and Renewable Energy, Construction and Infrastructure, Transport, Telecommunications, Industrial Products and Real Estate industries.

We help clients at all stages of the deal cycle, from pre-deal due diligence and SPA support, to purchase price negotiations and post-deal dispute resolution. Our specialist team has extensive experience of advising either party to a transaction and of acting as independent expert to determine matters in dispute. We work on national and international disputes of all shapes and sizes, applying forensic rigour and analysis to everything we do.

We work closely alongside colleagues from our Transaction Services, Valuations and Corporate Finance teams to ensure you have the right support every step of the way.

By type, our services can be broken down into:

Pre-deal due diligence and SPA advisory

Working capital and debt analyses

Completion accounts

Almost half of all transactions we come across use a Completion Accounts mechanism to adjust the purchase price at completion. Whilst the principles behind completion accounts may appear simple, they are often a source of dispute as parties differ in their interpretation of the SPA or have opposing views about accounting treatment, which affects value.

We help clients to anticipate and address issues arising from Completion Accounts and achieve a favourable outcome. We assist clients with:

• Planning for the completion accounts process – whether preparing or reviewing.
• Preparing analysis to support their position, including assessment of the strengths and weaknesses of arguments presented.
• Drafting an objection notice and negotiating areas of disagreement.
• Preparing written submissions on unresolved issues for determination by an independent expert.

Earn-out disputes

We’ve seen a rise in the number of deals involving an earn-out mechanism in recent years as buyers are increasingly cautious about what protection to insist on should things not turn out as expected. As a result, price is becoming conditional on the future performance of the target.

Our specialist SPA advisory team works with clients to get the relevant SPA clauses right - to maximise deal value and minimise the likelihood of disputes. When disputes do arise, we assist clients with assessing the implications of earn-out mechanisms, determining whether targets have been met and quantifying the amount payable or receivable.

Further information

Expert determinations

Expert Determination is the most common form of dispute resolution for post-deal purchase price adjustments and offers several benefits over litigation and arbitration. Speed, lower costs, privacy and the finality of the outcome are among these benefits, while it’s up to the parties themselves to manage the risks. Our specialists are frequently appointed to act as independent expert to resolve transaction disputes through the determination process.

Whether we’re acting in the expert role or advising a party, we work with you to get the process right from the outset. When advising a party to the dispute, we help clients to:

• Appoint an appropriate expert, taking into account the technical accounting, commercial and industry issues at stake.
• Develop a strategy based on the information available and the strengths and weaknesses of their position.
• Prepare written submissions, review the other party’s submissions and respond to information requests from the independent expert.

Breach of warranty matters

Although most Sale and Purchase Agreements provide protection for buyers in the form of warranties and indemnities, seeking compensation by way of a warranty claim is far from straight-forward. If there has been a breach, early consideration of the likely cost/benefit of your claim is crucial.  

We regularly advise both claimants and defendants and their legal counsel on the financial and accounting aspects of warranty claims. Our services include:

• Strategic assessment and planning - We work collaboratively to assess the merits of a claim and develop the case strategy. We can help you to gather the information you need and consider your options for presenting or defending a claim.
• Quantification of the claim - Working with colleagues from our valuations, economics and industry teams, we quantify the damages that will put the claimant back in the same position as if the warranties had not been breached.
• Presenting your position - We can assist by drafting arguments for submission or rebuttal of a claim.

However, if matters do go to trial, our experts can provide written and oral testimony in respect of your claim.

The quantification of damages in commercial, antitrust, and regulatory disputes often requires specialist valuations and economics expertise.

Our world class Economics practice works with our colleagues in Forensics Services and the rest of the firm to help our clients in a range of contentious situations where economics is the key to unlocking success. We undertake independent and robust economic analysis and support clients throughout the litigation process.

We help clients on the following areas:

Competition litigation and regulatory disputes

We assist clients in private actions and follow-on claims for damages deriving from antitrust abuses. We provide independent expert testimony on the effects of anticompetitive conduct in courts, arbitral tribunals and in front of competition authorities. Our services cover all aspects of competition litigation including analysis of damages deriving from anticompetitive conduct such as:

• Horizontal and vertical price fixing (e.g. cartels damages)
• Abuse of dominance (including loyalty discounts; bundling; predatory pricing; margin squeeze)
• Regulatory disputes (e.g. price control reviews)

In addition, our services on competition policy include mergers and acquisitions, market studies and investigations, and State aid.

Commercial disputes

We work closely with our disputes specialists to provide economic insight into the issues at the heart of commercial disputes. Our work involves:

• Analysis of cost reflective prices
• Assessment of contractual damages
• Evaluation of economic impact of strategy, policy and investment decisions
• Analysis of cost of capital

We have extensive experience of providing assistance in managing claims and quantifying resulting losses – both for clients bringing claims and for insurance companies, Government bodies, and other entities responding to and defending claims.

We help our clients to quantify the value of losses by drawing upon our specialised insurance and industry capabilities, as well as our experience in personal injury, property, business interruption, professional liability, product recall, file reviews, reserving and claims administration.

We provide analytical support and assistance through each step of the claims process and work with our clients to:

• Help assemble and assess preliminary claim information.
• Establish plans to mitigate damages and resume business as expeditiously as possible.
• Identify and track expenses incurred in minimising business interruption, estimate losses in terms of policy coverage and assist in establishing lost profits by applying actual loss sustained measurement methodologies.
• Assemble the information needed to facilitate payment by insurers, thereby mitigating the impact on the business.
• Identify and analyse the tax consequences and opportunities with respect to the loss.
• Act as independent expert when required for the purpose of Court proceedings.

Separation and divorce is often a long and challenging process, and negotiating a financial settlement frequently requires specialist expertise. Our multidisciplinary teams investigate the financial aspects of marital disputes, from asset identification, verification and tracing to through to valuations, liquidity and tax.

In cases where the parties are unable to decide upon or agree value, an expert may be required to provide independent evidence to enable the parties to reach a settlement, or the Court to make an order. We work regularly with the leading matrimonial firms and counsel, and take a proactive approach to maximising the effectiveness of the quantum aspect of each case.

We have extensive experience in providing both single party and single joint expert reports for submission to the Court. Our specialists have acted in a wide range of cases, including the landmark Charman v Charman, and we have access to a wide range of industry experts which means that our reports are credible, robust and able to withstand scrutiny – and are grounded in commercial reality.