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Baker Mckenzie:2023展望报告(英文版)(36页).pdf

1、The Year AheadGlobal Disputes Forecast 20232The Year Ahead|Global Disputes Forecast 2023ForewordClaudia BenavidesGlobal Chair,Dispute ResolutionForeword Welcome to the sixth annual edition of The Year Ahead.As always,this report sets out our predictions for the world of litigation and arbitration fo

2、r the next twelve months.As we have navigated the challenges of Covid,lockdowns,war in Europe and high inflation,it seems that uncertainty is the new certainty.New legal developments around the world have further complicated the commercial environment.To help understand these trends,we feature legal

3、 analysis drawn from our extensive global network.We have also drawn upon survey data from 600 senior disputes lawyers at large corporations across four continents.We reveal that while corporations expect more disputes,they continue to feel unprepared.The economic cycle has replaced Covid as the mai

4、n driver of disputes,and there are new trends around Environmental,Social and Governance disputes.We also show which industry sectors face new disputes threats,and which jurisdictions will see new legal developments.We look forward to working with you in The Year Ahead.3The Year Ahead|Global Dispute

5、s Forecast 2023ContentsContentsThe Big Picture -Economic,Political and Legal Trends 04-What Types of Disputes,and How Many?05-External Factors Posing Disputes Threats 07-Litigation Preparedness 08Key Issues -Cybersecurity and Data Disputes 09-Environmental,Social and Governance Disputes 11 -Post-M&A

6、 Disputes 13-Tax Disputes 15-Employment Disputes 17Industry Focus -Consumer Goods and Retail 19 -Energy,Mining and Infrastructure 20 -Financial Institutions 21-Healthcare and Life Sciences 22-Industrials,Manufacturing and Transportation 23-Technology,Media and Telecommunications 24Regional Developme

7、nts -Asia Pacific 25 -Europe,Middle East and Africa 27 -Americas 31Contacts 334The Year Ahead|Global Disputes Forecast 2023The Big PictureThe impact of Covid is receding in many parts of the world,but not all.Chinas economy is cooling,partly due to its zero-Covid policy.And as one threat recedes,oth

8、ers emerge.Supply chain disruption caused by Covid,along with Russias invasion of Ukraine and the energy crisis in Europe,have led to widespread global inflation.Central banks have reacted with interest rate rises,bringing to an end the era of cheap money which has existed in many economies since th

9、e financial crisis of 2008.The Organisation for Economic Co-Operation and Development(OECD)predicts annual growth in the world economy of just 2.2%in 2023,well below historic trends.Global trade has taken a knock,as governments place greater value on security of supply,and deploy international trade

10、 and sanctions as a means to drive political objectives overseas.Corporations are focusing on supply chain resilience,given ongoing challenges.Covid also accelerated the process of digital transformation.Many global organizations pivoted to new business models in response to disruption,building new

11、products and services,and making strategic acquisitions.The world of work has changed,with greater emphasis on workforce flexibility,and growing labor shortages.However,labor shortages are likely to ease as economic growth slows.Several developed countries,particularly in Europe,are forecast to ente

12、r recession this year.Businesses are already preparing by reducing headcount.This is a time of great change,and this change has placed corporations under strain.Many are renegotiating deals that no longer work in the current environment,forging new partnerships as they adjust operational and busines

13、s structures,or divesting assets.As usual,these trends have an impact on international disputes.The initial wave of Covid-related cases concerning commercial contracts and securities has given way to a broader range of disputes around supply chains,construction projects,employment issues and sanctio

14、ns.We anticipate an increase in fraud,insolvency and insurance claims.The legal world itself has not stood still,particularly on jurisdictional issues.Russian courts have ruled that sanctions imposed on Russian entities are a basis to avoid jurisdiction agreements.The obligations of EU countries und

15、er international investment treaties are regularly being breached as the EU courts and institutions seek to assert their jurisdictional dominance.The government of Dubai abolished a widely-used and respected arbitration institution,leaving disputes clauses pointing to a non-existent body.We will als

16、o see changes to litigation funding in 2023.Some jurisdictions are approaching maturity,with established standards and the development of secondary markets.Others are still trying to find the correct regulatory balance.And the stream of cheap capital which has flooded towards funders in recent years

17、 may now begin to recede.The Big PictureEconomic,Political and Legal Trends5The Year Ahead|Global Disputes Forecast 2023The Big PictureWhat Types of Disputes,and How Many?To support this report,we surveyed 600 senior lawyers from large organizations around the world,asking their views on the key dis

18、putes risks in the next twelve months.82%of respondents expected the number of disputes in 2023 to either stay the same or increase.Only 17%of respondents expected a decrease.This was a consistent view across all geographic locations,but results varied significantly by industry.The Industrials,Manuf

19、acturing and Transportation sector showed the greatest balance towards future increases.Technology,Media and Telecoms was the only sector to show an overall balance towards falling volumes.We also asked what types of disputes present a risk to respondents organizations in 2023.The results were clear

20、:cybersecurity and data disputes are the primary risks.Environmental,social and governance disputes are a close second.The“big two”mirror our results from last year.However,there are important changes.In some industry sectors,such as Energy,Mining and Infrastructure,and Healthcare and Life Sciences,

21、concerns over ESG disputes now surpass those for cybersecurity and data.Organizations are also concerned about different types of ESG disputes to those they most feared 12 months ago.Overall,do you expect to see the number of disputes in 2023 increase,decrease or stay the same as compared to this ye

22、ar(2022)?Financial InstitutionsTechnology,Media&TelecomsHealthcare&Life SciencesEnergy,Mining&InfrastructureConsumer Goods&RetailIndustrials,Manufacturing&TransportationTotal25%18%28%28%24%33%26%12%27%23%14%15%17%61%54%48%56%61%57%56%The same level of disputes as 2022Increase in disputesDecrease in

23、disputes9%6The Year Ahead|Global Disputes Forecast 2023The Big PictureEnvironmental disputes are important,but corporations are now more concerned about governance disputes.Governance risks go to the heart of an organizations decision-making and culture.Cases that attack a corporations integrity in

24、the market can have high reputational stakes,and sometimes existential risks.What types of disputes present a risk to your organization in 2023?What types of disputes present a risk to your organization in 2023?(Breakdown of ESG risk)Insurance disputes make up the top three,in a significant rise fro

25、m last years survey(from 26%in 2022 to 35%in 2023).Insurance and reinsurance disputes typically rise when the economy cools;claims thresholds are triggered and organizations look to recover losses.Other types of disputes near the top of the list include product quality,public law,securities and tax.

26、Cybersecurity/data Environmental/social/governance(ESG)InsuranceConsumer/product qualityPublic lawSecuritiesTaxCommercial/contractFraudTradeRestructuring/insolvencyEmploymentAntitrustIP/brandCorporate including post-M&A disputesReal estate62%58%37%27%20%16%21%18%16%11%21%17%18%10%GovernanceEnvironme

27、ntalSocial36%31%12%14%12%7The Year Ahead|Global Disputes Forecast 2023The Big Picturefrom the Ukraine-Russia war.However,the majority of those impacts are indirect,and even direct effects may not offer a practical cause of action.We also asked our respondents about specific risks such as external an

28、d internal investigations,and class actions.We found concerns across the board:87%were concerned about an internal investigation next year,86%were concerned about an external investigation,and 85%were concerned about class actions.These figures represent significant increases from last year,especial

29、ly for internal investigations(65%in 2022).This may be a reflection of the economic headwinds ahead:experienced legal counsel know that difficult trading conditions increase the temptation for improper behavior,and reduce the ability of transgressors to hide it.Last years survey showed Covid as the

30、greatest external factor posing a disputes threat.Concerns about Covid have now receded,and have been replaced with concerns about disputes caused by the economic cycle or stock market volatility.This is a consistent pattern across all the geographic regions we surveyed.External Factors Posing Dispu

31、tes ThreatsWhich of the following external factors poses the greatest potential threats to your organization in terms of increasing its exposure to disputes?Other rising threat factors include the competitive environment and geo-political issues.Amongst those citing geo-political issues,the dominant

32、 responses were around the US,Brexit and China,with Russia featuring lower down the list.This may seem a surprising result:many international corporations are experiencing an impact Economic cycleStock market volatilityCovidCompetitive environmentGeopolitical issuesCybersecurity/data privacySupply c

33、hain issuesConsumer class actionsChanging technology/digital transformationGrowing regulatory/law enforcement scrutinyChallenges of doing business in emerging marketsSocial justice issues,e.g.,#metoo,BLMLabor market issuesRising environmental awareness45%38%30%25%18%14%7%24%18%13%24%16%17%12%8The Ye

34、ar Ahead|Global Disputes Forecast 2023The Big PictureOur survey shows that,despite the risks,organizations still feel unprepared for litigation.Only 22%of respondents were fully confident or very confident in their organizations level of preparedness for litigation.The lowest-scoring sector was Ener

35、gy,Mining and Infrastructure,where just 15%of respondents felt fully or very confident.On a geographic split,scores Litigation Preparednesswere lowest in Brazil,with an equivalent figure of just 12%.Organizations also lack confidence in finding the right services for litigation and arbitration suppo

36、rt.These services typically include document review,legal project management,translations and transcriptions.Only 13%were fully or very confident on this topic.Our Litigation Intelligence Tool will help you assess your preparedness compared to others in your industry and identify opportunities to st

37、rengthen your approach.How confident are you in your organizations level of preparedness for litigation?How confident are you in finding the right services for litigation or arbitration support?Fully confident Very confident Moderately confidentNeutral Slightly confidentLow confidenceNot at all conf

38、ident2%20%44%10%22%3%0%Fully confident Very confident Moderately confidentNeutral Slightly confidentLow confidenceNot at all confident2%11%55%10%20%2%0%9The Year Ahead|Global Disputes Forecast 2023Key IssuesFor the second year running,cyber and data disputes topped our list of dispute types presenti

39、ng a risk.Cybersecurity incidents involve financial,operational and reputational damage,and they are becoming more frequent.Ransomware attacks saw a 13%increase last year,with a move towards more sophisticated methods.This includes“double extortion,”in which threat actors not only encrypt files but

40、take a copy and threaten to release these if the ransom is not paid.“Triple extortion”involves demanding ransom payments from the victims clients or suppliers whose data was compromised.Ransomware is increasingly offered as a service,with software capable of exploiting vulnerabilities being sold to

41、perpetrators who are not technically sophisticated enough to develop it themselves.We have seen instances of victims paying for decryption keys that then do not work,thought to be due to incompetence rather than malice.However,lack of expertise does offer law enforcement a better chance of tracing t

42、hose responsible.There is also a trend for attacks targeting non-personal data such as trade secrets and other commercial data.Other attacks ignore data altogether and target control systems.These may be against critical infrastructure systems,such as power generation,water treatment and food proces

43、sing facilities.It is not only high-profile organizations being targeted.Evidence in the US suggests that the scrutiny caused by pursuing so-called“big-game”targets has led hackers to shift their focus onto smaller,less high-profile ones.In our survey,respondents cited time and again the difficulty

44、of recruiting and retaining suitably skilled security personnel in the current environment.Many organizations felt exposed through a lack of the right people on the job.It was also clear that survey respondents were not just concerned with the electronic environment.Many see the greatest risks comin

45、g from areas that receive less attention:physical access to buildings,disposal of paper records,or simply employees discussing the corporations details Key IssuesCybersecurity and Data Disputes“As we are a big organization there are frequent times when all teams across the globe are not on the same

46、page regarding cybersecurity,so it leads to a risk.”Functional Head at IMT corporation,USD 10 billion+revenue10The Year Ahead|Global Disputes Forecast 2023Key Issueswith friends and relatives,or in a public place.Meanwhile,the claims keep coming.In Europe,group data claims are being driven by an exp

47、ansion of litigation funding,a rise in litigious consumer associations,and procedural reforms.National provisions necessary to comply with the EU Collective Redress Directive must take effect by June 2023.This requires all member states to allow qualified representative entities to be appointed that

48、 can bring collective actions on behalf of consumers in a wide range of areas,including data protection.We expect to see mass litigation in data claims continuing to grow in the UK,the Netherlands and Italy,and in the medium-to-longer term,in France,Belgium and Spain.However,difficulties remain in e

49、stablishing common issues across a class,and in most jurisdictions,claimants still need to opt in.This potential obstacle is driving creative solutions by claimant law firms in the UK,we have seen efforts to reframe group data claims as competition law issues,such as abuse of a dominant position,whi

50、ch would then allow claims to be brought on an opt-out basis.Whether such claims succeed remains to be seen.Although the majority of data claims still relate to breaches that result from hacking,there is an expanding number of class action claims being pursued against business models that use data,i

51、ncluding claims against proprietary databases that have value and can be licensed to others,cases around third-party cookies used for ad tracking,particularly against data brokers,and claims against services,such as social media sites,who employ data for other purposes,such as advertising.In Califor

52、nia,most provisions of the California Privacy Rights Act(CPRA)became operative on 1 January 2023,with some look-back provisions to January 2022.The CPRA enhances the privacy protections introduced by the California Consumer Privacy Act in 2020 and applies to companies worldwide“doing business”in Cal

53、ifornia.Under the amended provisions,from 1 July 2023,the California Privacy Protection Agency will have the authority to bring administrative enforcement actions for alleged violations.The changes also expand the private right of action available to consumers to a wider range of personal informatio

54、n.“Dealing with outdated technology is a huge concern.Legacy systems are a prime target for bad actors.”Head of Risk at TMT corporation,USD 10 billion+revenue11The Year Ahead|Global Disputes Forecast 2023Key IssuesOver half of our respondents said that ESG disputes presented a risk to their organiza

55、tions in the coming year.And as we have seen,concerns over governance disputes overtook environmental disputes for the first time this year.Governance disputes are about the way an organization is run.They may be based on broad legal duties,such as the Caremark duties in Delaware,which effectively r

56、equire directors to oversee in good faith the corporations compliance with relevant laws.Other broad duties include human rights legislation or anti-bribery and corruption rules.Alternatively,disputes may have a more specific legal foundation,such as modern slavery or conflict minerals legislation.W

57、hat they have in common is a direct challenge to a corporations integrity and reputation in the market.The lawyers in our survey gave remarkably consistent comments on this topic.They see the key risk as the board.They worry over its composition,quality,and experience.They have misgivings over remun

58、eration structures and conflicts of interest.And they particularly dislike their advice being ignored by directors.Environmental,Social and Governance DisputesMany believe disputes can be prevented by a clear strategy,clear roles,and good systems and controls.Above all,they see good communication wi

59、thin the organization as the key to good decisions.Governance risks for organizations will continue to widen this year.National governments are enacting more legislation in this area.International standards are also increasing,such as the UNs continued work on developing an instrument on civil claim

60、s arising from business-related human rights violations.Meanwhile there is continued focus on making parent corporations responsible for the actions of subsidiaries,and organizations accountable for supplier conduct.Organizations are becoming more accustomed to auditing their supply chain,but need t

61、o take care.What may look like best practice in the conduct of a due diligence exercise may have unintended and unhelpful consequences for litigation strategy if the corporation is targeted with a claim.Environmental disputes remain high on the radar.Greenwashing disputes are on the rise,arriving on

62、 general counsels desks through a confusing array of regulatory and litigation“Governance disputes start where there is lack of communication and lack of understanding between higher and lower management.”Legal Professional at TMT corporation,USD 10 billion+revenue12The Year Ahead|Global Disputes Fo

63、recast 2023Key Issuesroutes,including advertising and antitrust regulators,consumer protection claims and securities litigation.This area is dominated by concerns over climate change.The number of climate change cases continues to rise,spreading from the US to other jurisdictions.Industry trackers s

64、how that major new cases are emerging at a rate of around three per month.Many cases are brought by activists seeking disclosure of key information or to challenge climate policies.Our survey respondents were particularly concerned about extreme weather events and the disruptive effect they can have

65、 upon a corporations production and other activities.When global supply chains are already under stress,lost production days due to floods or storms can cause real issues,both practical and legal.We may see a decision this year from the Paris courts in a major climate change case against French oil

66、giant Total.The case has been brought by a coalition of NGOs and local authorities,which seek an order for Total to“take the necessary measures to drastically reduce its greenhouse gas emissions.”Parallels have been drawn with a similar case in the Netherlands in 2021.Whilst corporations have no sho

67、rtage of issues,governments have wider problems still.There is an increasingly obvious conflict between international investment law and international climate change obligations.It is difficult for governments to take action to tackle climate change without affecting investors,and expensive disputes

68、 often result.Russias invasion of Ukraine,and the subsequent energy price spike,have showngovernments in Europe and beyond the risks of energy dependency.Some will seek a quick fix in fossil fuels from domestic sources or trusted partners.This may run against environmental objectives,adding fuel to

69、the activists fire.Social disputes remain a risk but are harder to define.Many of our survey respondents see these disputes as predominantly around discrimination,particularly in the employment context.Some organizations feel that failure to take part in political actions can lead to risk from withi

70、n their workforce.Our values:Baker McKenzie is a signatory to the UN Global Compact.View our progress,or read more about our CSR initiatives or our commitment to inclusion,diversity and equity.13The Year Ahead|Global Disputes Forecast 2023Key IssuesGlobal M&A volumes hit a record high in 2021,breach

71、ing USD 5 trillion for the first time.This post-Covid surge was triggered by low costs of borrowing and high valuations.The boom peaked in the final quarter of 2021,and we have since seen twelve months of cooling activity.Many deals were done at speed and with limited due diligence.Parties may have

72、agreed terms that look uncomfortable with the benefit of hindsight.This can have compliance consequences,sometimes priced into the deal.The other likely consequence is post-M&A disputes.These disputes can be exacerbated when valuations fall,as there is greater scope for deals to underperform expecta

73、tions.Sellers see reduced earn-outs and buyers see lower returns.They look for legal answers.In the coming year we expect to see a rise in post-closing contractual disputes based on purchase price adjustments,Post-M&A Disputesrepresentations and warranties,indemnities,pre-contractual disclosure and

74、post-closing cooperation.We will also see related tortious claims,which take various forms in different jurisdictions but have at their core a wrongful act against shareholders.We also anticipate a rise in distressed M&A,as the global economy slows.Many of these deals will eventually lead to dispute

75、s.Recent years have also seen growth in the use of warranty and indemnity insurance,Domestic commercial contractDomestic business sale and purchase agreementCross-border commercial contactCross-border business sale and purchase agreementCourts61%40%55%44%Arbitration institution38%58%45%56%Other 1%2%

76、Preferred dispute resolution mechanisms14The Year Ahead|Global Disputes Forecast 2023Key Issuesboth in the US market and beyond.This,coupled with high transaction volumes,will lead to increased claims against these policies.Similarly,some jurisdictions have seen the growing popularity of clauses shi

77、fting antitrust risk in the deal;these may be effective,but where there is scope for uncertainty they will end up in dispute.Sellers must also take care over ESG warranties;these are increasingly common,but provide a ground for a claim where obligations are not met.As many of these disputes will end

78、 up in arbitration,or other specialist confidential mechanisms,it makes trends hard to analyze.Our survey asked respondents where they preferred to resolve contractual disputes.This revealed a clear preference for arbitration over the courts in business sale and purchase agreements.This balance of p

79、reference varies significantly around the world,but where arbitration is preferred it tends to be because the courts are less experienced in these cases,the matters are of higher value,and confidentiality is a bigger concern for the parties.To address this relative lack of information,further resear

80、ch has been carried out by Baker McKenzie into publicly available post-M&A judgments and awards,along with our own database of cases.The results bear out our practitioners experience:claimants success rate in these claims is relatively low,particularly with warranty claims.Indemnity claims have more

81、 success.It is also rare to see disputes around material adverse change clauses.This may change as the turbulence of recent times feeds through to courts and tribunals,but we do not anticipate a significant rush of cases.15The Year Ahead|Global Disputes Forecast 2023Key IssuesOne in five(20%)of our

82、survey respondents expected tax disputes to present a risk to their organization next year.The perceived risk is particularly high in the EMI sector(28%).Geographically,the figure was highest in Brazil(29%).We also found that expected risk was lower for relatively smaller or larger organizations,but

83、 peaked for mid to large-sized firms with turnover in the USD 2 billion to USD 10 billion bracket.We are seeing year-on-year increases in the number of tax disputes and audits being brought.This represents a significant challenge to organizations,stretching tax resources to respond to wide-reaching

84、policy change.A separate Baker McKenzie survey last year Risk Reshaped:Tax Disputes Outlook 2022-2025 found that organizations are now managing an average of 20 live disputes and audits apiece.This comes alongside a marked increase in the value of tax disputes,a trend that we expect to continue this

85、 year.While some organizations have grown through the pandemic,the financial position of others suffered.There remains the potential for large tax adjustments,including those relating to historic tax years due to a lag in audit periods,which represent significant challenges to organizations financia

86、l performance.Digital transformation is also changing tax exposure and driving a rise in disputes.As non-digital organizations embrace technology at scale or remote working arrangements,many will face new and unfamiliar tax considerations.These changes to business and operating models are likely to

87、affect organizations tax exposure,giving rise to transfer pricing complexity,new permanent establishment risks,indirect tax liabilities and tax controversy inherited through M&A.A failure to grasp the tax implications of these changes represents a real threat to organizations that are already experi

88、encing high levels of disputed tax.Digitalization gives rise to other challenges,as tax laws struggle to keep pace with rapidly evolving technology and the new ways of working it offers.The lack of clarity around the proper tax treatment of these new technologies and situations for tax purposes incr

89、eases the likelihood of disputes.ESG considerations are playing an increasing role in the management and resolution of tax disputes,as,depending on the circumstances,boards and management may elect to settle disputes privately rather than litigate publicly,in order to avoid negative attention,even i

90、f this means a higher adjustment.As a result,advance tax rulings and negotiated settlements will continue to gain relevance in dispute resolution.However,as tax authorities come under pressure to raise revenue and the value of disputes rises further,the balance may tip in favor of litigation.Inherit

91、ed tax controversy remains a major risk area.Transactions often include tax risk acquired from the target.We have described in the section above how the recent M&A boom has often led to expedited due diligence.In the tax context,organizations may also be moving rapidly to execute deals before a chan

92、ge in tax policy or the tax rate.Tax Disputes16The Year Ahead|Global Disputes Forecast 2023Key IssuesFast-tracked processes can mean gaps in due diligence or leave acquirers without a full understanding of the targets tax position,leading to potentially costly post-integration restructuring and subs

93、equent investigations.It is also becoming increasingly common to see post-transaction litigation between buyer and seller or between a spun-out entity and its previous owner about legacy tax issues.Changes to international tax policy and the implementation of these reforms are a potential source of

94、future disputes.The proposed OECD reforms known as“Pillar One”and“Pillar Two”have been broadly welcomed by tax leaders.However,the rules are complex,the timeline for implementation remains unclear,and significant uncertainties persist about where the burden of tax changes will rest.There is potentia

95、l for tension between global cooperation and national interests,particularly as raising tax revenue has become a post-pandemic priority.Varying interpretations of international tax rules designed to maximize tax revenue locally are expected to be particularly problematic.There are also concerns abou

96、t the imbalance in the ability of OECD members to enforce proposals.In addition,for the majority of multinational groups not captured by Pillar One,regular transfer pricing disputes will continue to be a major source of uncertainty and risk.“Tax risk has been reshaped by a changing business environm

97、ent,fiscal budgetary pressures,and more aggressive enforcement.”Chief Legal Officer at Consumer Goods&Retail corporation,USD 50 billion+revenueTo learn more about transfer pricing disputes,read our latest report in conjunction with Bloomberg:The Global Landscape of Transfer Pricing Controversy:Trend

98、s You Cant Afford to Ignore.17The Year Ahead|Global Disputes Forecast 2023Key IssuesIncreased employee mobility and the tight job market,making it harder for employers to fill vacancies,are the major factors behind an uptick in restrictive covenant enforcement claims filed by employers,particularly

99、across North America and the Asia Pacific region.More than ever,employers are seeking to enforce restrictive covenants when workers quit their jobs,including non-competition agreements,confidentiality agreements,and agreements not to solicit employees or clients.In the US,a state-by-state trend towa

100、rds restrictions in restrictive covenants has made it important for employers to be creative in how they utilize and enforce these agreements.A number of risks result from the post-Covid return to the office.There is frequently a mismatch in employer and worker expectations around what hybrid workin

101、g looks like in practice.Tensions between accommodating a desire for flexibility and establishing effective working relationships and culture are a potential breeding ground for employment disputes.Employees who have the choice to work remotely may be at risk of slower career advancement than collea

102、gues who have returned to the office regularly.As well as potential discrimination and other claims arising out of failure to promote,or termination of employment,employee relations issues more generally could give rise to general worker discontent,grievances and disputes.In the US,medical or religi

103、ous accommodation claims continue as employers bring more employees back to the office or brick-and-mortar workplace whilst Covid remains in circulation.Some medical claims concern Long Covid,which has been recognized as a disability by the US Equal Employment Opportunity Commission.Requests for rel

104、igious accommodations include requests to be exempt from mandatory vaccination policies as well as mask-wearing and periodic testing.In North America and Europe,unions are becoming more active.The rise in industrial action,spurred on by the current economic climate and cost of living crisis,means we

105、 anticipate an increase in litigation between trade unions and employers,as well as against governments.We are also seeing signs of governments preparing for future unrest:for example,the UK recently made controversial changes to trade union law,enabling employers to engage temporary workers to cove

106、r striking workers,and increasing the liability of trade unions for unlawful industrial action.In the US,we expect to see more claims against corporations of unfair labor practices and violation of employees rights as unionization efforts resurge.This is partly fueled by the Biden administrations pr

107、o-union policies,which continue to take form.Equal pay claims are still on the rise.With the recent increase in pay transparency laws in the US,including required disclosure of salary and wage ranges in job advertisements,and with pay transparency under discussion as part of the EUs proposed equal p

108、ay and pay transparency directive,we expect to see more claims in this area.Misclassification and related claims are still an ongoing risk,as the gig economy grows and governments continue to adjust frameworks Employment Disputes18The Year Ahead|Global Disputes Forecast 2023Key Issuesfor recognizing

109、 employment relationships.For example,in the US there is a new proposed rule by the Biden administration on independent contractor misclassification that is likely to make it more difficult for employers to classify workers as independent contractors.There have also been movements in several Asia Pa

110、cific jurisdictions aimed at increased protection of workers in the gig economy.Workforce litigation derived from restructuring and reorganization measures is likely to rise as more organizations look to reduce costs through workforce reductions and other cost-cutting measures.We anticipate challeng

111、es to dismissals,layoffs and furloughs,such as alleged inappropriate notice,unfair dismissal,invalid dismissals for failure to follow proper process,or discrimination,amongst other claims.In Europe we are seeing unions and works councils scrutinizing terminations and finding new ways to challenge th

112、ose.Finally,increased legislative protection for whistle-blowers in Europe and the Asia Pacific region such as Australia and Japan means we are likely to see a rise in complaints and associated litigation.“Because of Brazilian culture,more than 30%of dismissed employees go to the courts with claims

113、to increase the amounts received with the termination.”Brazilian-based Head of Compliance at TMT corporation,USD 500m+revenueTo learn more about whistleblower complaints in Asia Pacific,explore Baker McKenzies custom research:Asia Pacific Whistleblowing Landscape:Benchmarking and Best Practices19The

114、 Year Ahead|Global Disputes Forecast 2023Industry FocusOver half of our respondents in this sector expect cybersecurity and data disputes to be a risk to their organizations in the coming year.Multiple surveys show that retailers face a higher incidence of cyberattacks than any other industry,partic

115、ularly around attempted account takeovers and malicious bot traffic.ESG disputes are identified as a risk by almost half of respondents.We anticipate growing litigation between brands and suppliers around suppliers claimed ESG credentials,and liability for any regulatory defaults.Plastics litigation

116、 is also a key trend,often involving an allegation that producers have falsely advertised the recyclability of their products.Operators in this sector are also concerned about disputes arising from the economic cycle.Increased prices,labor shortages and energy price volatility are all likely to feed

117、 supply chain and wider disputes in the coming year.Commerce in the metaverse is a current hot topic,but we do not anticipate a rush of disputes in the next twelve months.In the longer term we can expect to see disputes around unauthorized use of IP rights,unsolicited marketing,fraud and unfair comm

118、ercial practices.There will also be claims about the scope of older licenses,distribution agreements and sponsorship arrangements,made without metaverse scenarios in mind.Industry FocusConsumer Goods and RetailTop 5 expected dispute typesTop 5 external risks for disputesCybersecurity/dataEnvironment

119、al/social/governance(ESG)InsuranceConsumer/product qualityCommercial/contract58%48%37%33%25%Economic cycleCovidStock market volatilityCompetitive environmentGeopolitical issues40%38%31%27%25%20The Year Ahead|Global Disputes Forecast 2023Industry FocusESG tops the list of disputes types expected to p

120、resent a risk in 2023.For EMI operators this is business as usual,but legal teams will want to track the shifting profile of disputes under the wide ESG umbrella,and identify the highest priorities.Some of the emerging claims are direct attacks on how these corporations do business,which cannot be s

121、olved with a checkbook.Energy transition is a key factor.Climate disputes will continue,as expectations of governments,corporations,shareholders and activists grow.Energy operators are investing in renewable technologies such as wind and solar farms,hydrogen projects and carbon credit schemes.Perfor

122、mance,supply and pricing issues are common.This transition often involves a move from offshore to onshore,accompanied by conflicts with local communities,planning issues,and higher levels of regulation.New trends can also be marked by immature regulation and a lack of established market practice aro

123、und contractual terms,bringing heightened disputes risk.Specific examples include the growing use of corporate power purchase agreements,and the use of battery energy storage systems.The consequences of the war between Russia and Ukraine may have long-term effects on the extractive industries,but th

124、ere are more immediate consequences.Players with direct exposure have had to divest assets,terminate joint ventures,and exercise force majeure relief.Huge rises in wholesale gas prices will continue to cause gas pricing and supply disputes.Infrastructure projects in Europe and beyond have seen delay

125、s and increased costs.We will see a spike in construction and project disputes.Energy,Mining and InfrastructureTop 5 expected dispute typesTop 5 external risks for disputesEnvironmental/social/governance(ESG)Cybersecurity/dataInsuranceTaxConsumer/product quality69%56%35%28%27%Economic cycleStock mar

126、ket volatilityCovidCybersecurity/data privacyGeopolitical issues46%42%35%32%27%21The Year Ahead|Global Disputes Forecast 2023Industry FocusFinancial institutions continue to expect cybersecurity and data disputes in the coming year,along with ESG disputes.We will see growth in climate-related litiga

127、tion against financial institutions from NGOs and activist shareholders.Until recently,claims have focused on the disclosure of climate-related information.However,the trend is now moving to scrutiny of what prudent financial management means.For example,what fiduciary duties are owed when acting as

128、 a financial advisor in investment planning or M&A transactions?Our survey shows that the economic cycle and stock market volatility are seen as the greatest external disputes risks for financial institutions in the coming year.An economic downturn will bring increasing defaults,leading to recovery

129、actions and litigation.Some corporations may struggle to service debt owing to higher interest rates and wider credit spreads.Economic volatility also tends to cause an increase in fraud and other misconduct issues.Financial institutions also face significant regulatory risk in the year ahead,as reg

130、ulators and other agencies increase compliance enforcement.The invasion of Ukraine has led to increased risk from sanctions and related disputes.The downstream stage of sanctions is likely to cause particular issues,in areas such as anti-money laundering and Know Your Customer investigation and enfo

131、rcement.Financial InstitutionsTop 5 expected dispute typesTop 5 external risks for disputesCybersecurity/dataEnvironmental/social/governance(ESG)InsuranceConsumer/product qualitySecurities63%46%37%30%25%Stock market volatilityEconomic cycleCybersecurity/data privacyGeopolitical issuesCompetitive env

132、ironment50%49%26%25%24%22The Year Ahead|Global Disputes Forecast 2023Industry FocusMore than half of respondents in this industry are concerned about ESG and cybersecurity/data disputes in the coming year.These figures are both up from last years survey.ESG issues include the use of hazardous substa

133、nces in product manufacturing,access to quality care and medications,and price transparency.Class actions against healthcare organizations for data breaches continue to rise.There is also a more widespread concern:digital transformation has reached all corners of the industry but regulations and reg

134、ulators have not yet caught up.Covid is no longer perceived as the top external disputes risk,but supply chain challenges have worsened for many operators and we will continue to see disputes in this area.The dominant concern now is around the economic cycle.In particular,although there has been a s

135、lowdown of traditional M&A activity in the sector,we have also seen increased merger control and related disputes.Licensing and collaboration continue to rise.As old relationships are terminated and new partnerships established,litigation will emerge.Finally,our survey showed that 90%of healthcare a

136、nd life science organizations are concerned about the risk of an external investigation next year,the highest of any industry.Healthcare and Life SciencesTop 5 expected dispute typesTop 5 external risks for disputesEnvironmental/social/governance(ESG)Cybersecurity/dataInsurancePublic lawTax59%57%36%

137、24%22%Economic cycleStock market volatilityCovidCompetitive environment Geopolitical issues41%37%29%24%23%23The Year Ahead|Global Disputes Forecast 2023Industry FocusOver two-thirds(70%)of industrial,manufacturing and transportation organizations say that ESG disputes present a risk in 2023.This was

138、 the highest figure of any industry sector in our survey.90%of such organizations report concern over class action risk in 2023.Again,this is the highest figure of any sector in our survey.Operators in the sector are facing significant ESG risks.The general backdrop is one of increasing enforcement

139、from public authorities,and attention from shareholder activists.The specific risks are many.Plastics and recycling claims are ballooning against all members of the supply chain,particularly in the US.Human slavery due diligence and disclosure requirements are also growing rapidly,increasing dispute

140、s and compliance risks.The focus on Covid-related disputes has receded from last year,but the longer-term impact of Covid is still felt.Many organizations are onshoring their manufacturing operations,driven by experiences from the pandemic and fears of trade wars.Production is moving from places lik

141、e China and India to be closer to home markets.Logistics are cheaper and simpler,and increased automation offsets higher labor costs.This has a disruptive effect on existing relationships,flowing through into disputes.This sector has also seen recent high-profile antitrust litigation,with more cases

142、 likely.Antitrust class actions are well-established in the US,and increasingly common in the UK,Netherlands and Italy.We also see Germany and Poland as growing centers for this type of litigation.Industrials,Manufacturing and TransportationTop 5 expected dispute typesTop 5 external risks for disput

143、esEnvironmental/social/governance(ESG)Cybersecurity/dataInsuranceConsumer/product qualityCommercial/contract70%62%32%22%21%Economic cycleStock market volatilityCovidCompetitive environment Geopolitical issues47%35%32%24%23%24The Year Ahead|Global Disputes Forecast 2023Industry FocusWhen we asked res

144、pondents if they expected the number of disputes to increase,decrease or stay the same,TMT was the only industry to show a slight bias toward decreasing numbers.This may reflect a heavy year for disputes in 2022.As with last year,cybersecurity and data disputes top the list of concerns:almost three-

145、quarters of TMT organizations are concerned about such disputes in 2023.ESG disputes rank second,with legal teams tackling a broad range of issues from repair and recycling obligations for products,through to fake news and protection of minors on technology platforms.In terms of disputes threats,TMT

146、 organizations are relatively less worried about geopolitical issues,and relatively more concerned about the economic cycle,compared to other industries.Whilst online activity brings some protection from on-the-ground issues,it creates other challenges.Disputes relating to the metaverse or any globa

147、lly accessible virtual environment can raise difficult issues of applicable law and jurisdiction.It can also be difficult to identify and trace defendants in the virtual world a current issue with cases of IP infringement by creators of non-fungible tokens.Nor have traditional disputes gone away.The

148、re has been significant convergence between the gaming,music and film sectors in recent years,resulting in new partnerships and new ways of working.Experience from other sectors shows this can often lead to disputes.Tax disputes are also likely to feature as tech corporations increasingly become the

149、 focus of tax authority scrutiny,and governments tackle issues such as digital services taxes and transfer pricing.Technology,Media and TelecommunicationsTop 5 expected dispute typesTop 5 external risks for disputesCybersecurity/dataEnvironmental/social/governance(ESG)InsuranceConsumer/product quali

150、tySecurities73%49%32%29%23%Economic cycleStock market volatilityCybersecurity/data privacyCovid Competitive environment48%31%29%25%25%25The Year Ahead|Global Disputes Forecast 2023Regional DevelopmentsHong KongStatutory framework for remote hearings to be introduced Hong Kong is expected to introduc

151、e a new statutory framework governing remote hearings this year.The government recently indicated its intention to introduce The Courts(Remote Hearing)Bill for the Legislative Councils consideration.Although the Hong Kong judiciary has been making continuous efforts to promote the use of remote hear

152、ings in the last few years,this is currently governed by common law principles and the various guidance notes of the judiciary,and stakeholders have previously expressed concerns about the lack of a statutory framework.It is hoped that the Bill,if passed,will provide a comprehensive legal framework

153、concerning the application,operation and effect of remote hearings for court proceedings,providing greater clarity for users.China/Hong KongExpanded reciprocal enforcement of judgments between Hong Kong and Mainland ChinaMainland China and Hong Kong are expected to implement a new law expanding the

154、scope of judgments granted by the Mainland courts to be recognized and enforced in Hong Kong.The legislation will also establish a comprehensive mechanism for the registration of Mainland judgments in Hong Kong.The Mainland Judgments in Civil and Commercial Matters(Reciprocal Enforcement)Bill was pa

155、ssed by the Hong Kong Legislative Council in October last year.The Bill will come into effect once Hong Kong and the Mainland have put in place the relevant implementation mechanism in their respective jurisdictions.Once in force,the measures will offer better protection and certainties to parties i

156、nterests,and further consolidate Hong Kongs role as a dispute resolution hub.AustraliaIncreased penalties for competition and consumer offenses,new prohibitions on unfair contract termsNew unfair contract terms provisions will come into force later this year,following the expiry of a 12-month grace

157、period.The Treasury Laws Amendment(More Competition,Better Prices)Act 2022,which came into force on 9 November 2022,introduced a civil penalty regime prohibiting the use of and reliance on unfair contract terms in standard-form contracts and increased the penalties that may be awarded for breaches o

158、f the civil penalty provisions under competition and consumer laws.The increased penalty regime applies to conduct engaged in from 10 November 2022.The legislation includes a 12-month grace period for the commencement of the unfair contract terms provisions,which will come into force on 10 November

159、2023.Regional Developments:Asia Pacific26The Year Ahead|Global Disputes Forecast 2023Regional DevelopmentsRegional Developments:Asia PacificSingaporeIncreased cross-border insolvency and cryptocurrency cases expected at the SICCAn increase in the number of cross-border insolvency,restructuring and d

160、issolution matters before the Singapore International Commercial Court(SICC)is anticipated this year.In October last year,the SICC introduced new rules that extend its jurisdiction to hear corporate insolvency,restructuring and dissolution proceedings under the Insolvency,Restructuring and Dissoluti

161、on Act 2018 that are international and commercial in nature.The new rules also provide processes for the transfer of proceedings commenced in the General Division of the Singapore High Court to the SICC.Additionally,we have seen an increase in cryptocurrency-related matters in the General Division,w

162、hich can be transferred to the SICC and also expect these types of matters to grow in 2023.IndonesiaNew beginning for protection of data privacy in IndonesiaAn increase in enforcement and compliance issues is expected following Indonesias landmark new data protection legislation,Law No.27 of 2022 on

163、 the Protection of Data Privacy.The new law was passed in October last year but provides for a two-year transitional period for personal data processors and controllers to bring their data processing into compliance.The law applies not only to parties located in Indonesia but also to offshore partie

164、s that manage personal data owned by Indonesian nationals.Additionally,the law creates a new Personal Data Authority,which will oversee data protection compliance,including enforcing administrative sanctions.Failure to implement data privacy protections,including unlawful use,collection or disclosur

165、e of personal data,is subject to criminal sanctions,such as fines and/or imprisonment.JapanNew online system for court documents to become operational in eight District Courts A new system for the online submission of court documents,known as“Mints,”is set to become operational in January.The system

166、,which was implemented last year but is not yet operational,is part of the IT orientation of civil court proceedings in Japan.Mints will be used in cases where both parties elect to do so,allowing the parties to submit documents to the court and receive documents from an opposing party through Mints

167、.Currently,certain documents relating to the filing of lawsuits are not covered by the system.The system will initially be rolled out across eight District Courts where High Courts are located,including Tokyo and Osaka,before gradually being extended to all District Courts.VietnamNew law on protecti

168、on of consumer rights expected this year The new law on protection of consumers rights is scheduled to be passed in May 2023.As of the time of writing,the draft law retains the existing key principles in the resolution of disputes involving consumers,such as the principle that the consumers need not

169、 prove the fault of the trading organizations/individuals.In addition,the draft law also clarifies various substantive issues and even provides that social organizations serving to protect consumers interests will not need to pay a court fee in advance in a representative action on behalf of the con

170、sumers.This has the potential to increase the number of litigation/arbitration cases relating to the protection of consumers rights in Vietnam,both this year and beyond.27The Year Ahead|Global Disputes Forecast 2023Regional DevelopmentsRegional Developments:EMEAEngland&WalesReform of Arbitration Act

171、 1996 The Law Commission of England&Wales is considering proposals to reform the Arbitration Act 1996,to ensure it remains“state of the art.”A consultation period ended in December last year,with the policy development and report set to follow this year.Proposals will be made by the Law Commission o

172、n textual changes to the Act,to reflect developments over the last 25 years since the current framework came into force.Areas likely to be reformed include confidentiality,independence of arbitrators,summary disposal,interim court measures in support of arbitration,jurisdictional challenges and the

173、appealability of points of law.The changes are intended to continue to support Londons leading role in international arbitration.BelgiumDigital database for all judgments and decisionsA new digital database of court judgments and decisions will come online later this year.The legal framework providi

174、ng for a publicly-available central online database of all Belgian case law was passed by the Parliamentary Chamber of Representatives last year.According to the draft law,from 30 September 2023,judges will be able to upload and view all judgments and decisions,and lawyers,defendants,civil parties a

175、nd judicial experts will be able to view the rulings relating to their own cases.From 31 December 2023,the database will be accessible to the general public,meaning that judges will no longer have to read out their rulings in court.However,to protect privacy,the judgments and decisions will be anony

176、mized.AustriaAmendments to law on consumer arbitration expectedThe provision of Austrias Civil Procedure Code governing arbitration agreements is expected to be amended this year.At present,Section 617 of the Civil Procedure Code states that an arbitration agreement between an entrepreneur and a con

177、sumer is only validly concluded for disputes that have already arisen.The changes,which have been under discussion for some time,are expected to exclude from the scope of this provision legal and natural persons,who formally act as consumers,but functionally as entrepreneurs.The amendment would stre

178、ngthen Austria as a place of arbitration for corporate disputes,especially where one party is a private foundation.28The Year Ahead|Global Disputes Forecast 2023Regional DevelopmentsRegional Developments:EMEAEuropean UnionCollective Redress Directive to be implemented by EU member statesThe EU Colle

179、ctive Redress Directive will take effect by June 2023,significantly bolstering consumer rights within the EU.The Directive requires all member states to allow qualified representative entities to be appointed that can bring collective actions on behalf of consumers in a wide range of areas.Members s

180、tates enjoy a significant degree of autonomy in how these collective proceedings will operate within their jurisdictions and are free to offer a more wide-ranging regime than required.The Directive was endorsed by the European Parliament in November 2020.The deadline for member states to translate t

181、his into national law was 25 December last year,and it is to be implemented and enforced by member states by June 2023.ItalyReforms to civil and criminal judicial systemNew rules governing Italys civil and criminal procedure and sentencing are expected to be implemented,following a decree in October

182、 last year.The reforms aim to improve the efficiency of the civil and criminal judicial systems,reducing the average length of civil trials by 40%and criminal trials by 25%by 2026.Key civil procedure reforms include(i)requiring parties to submit all claims and evidence before the first hearing,at wh

183、ich the court will attempt to settle the dispute;(ii)simplified and more efficient enforcement procedures;(iii)extended application of ADR mechanisms,including compulsory mediation;(iv)strengthened impartiality and independence requirements for arbitrators;and(v)the introduction of interim measures

184、in arbitration.The criminal justice reforms aim to make sanctions more effective and timely and incentivize early settlement and the use of restorative justice.European Union/UkraineHague Judgments Convention to enter into force The Hague Judgments Convention will come into force later this year.The

185、 Convention establishes an international agreement on the recognition and enforcement of court judgments across borders in civil and commercial matters and seeks to do for the enforcement of court judgments what the New York Convention does for arbitral awards.The Convention has been ratified or acc

186、eded to by the EU(binding all EU member states apart from Denmark)and Ukraine.It will enter into force for these jurisdictions on 1 September 2023.Other signatories that have yet to ratify the Convention include Costa Rica,Israel,Russia,the United States and Uruguay.KazakhstanNew insolvency laws pro

187、posed A new bill on insolvency is being considered by the Parliament of Kazakhstan.It aims to introduce a mechanism to restore Kazakhstani citizens solvency and tackle the issue of non-repayment of loans and other credit.The bill provides an out-of-court bankruptcy procedure for individuals with deb

188、ts of 1,600 monthly calculation indexes or less(approximately USD 10,200),and a bankruptcy court procedure for higher debts.The bill also provides for the possibility of concluding a settlement agreement.If adopted,the changes may affect several laws and codes including the Civil Code,Tax Code and C

189、ode of Administrative Offenses.It is also of significance for local banks and financial companies providing personal loans and finance.The bill is expected to be adopted by April 2023.29The Year Ahead|Global Disputes Forecast 2023Regional DevelopmentsRegional Developments:EMEALuxembourgIntroduction

190、of an ex-ante merger control regime with judicial reviewLuxembourg is considering introducing a domestic merger control regime.The regime would empower Luxembourgs Competition Council to carry out ex-ante control of certain mergers before their completion.It would also set out a procedural framework

191、 that would allow the companies involved to appeal the Councils decision to block the merger and permit competitors to challenge the Councils approval of the merger before the courts,ensuring independent judicial oversight.It is hoped that the new regime would allow for early detection of threats to

192、 competition,although there are concerns that it may prevent big companies from merging and becoming strong enough to compete with other global competitors.PolandChanges expected to corporate liability laws and sanctionsAmendments to Polands Law on Responsibility of Collective Entities are expected

193、to occur this year.According to the current draft,a prior conviction of an individual will no longer be required as a condition for the liability of a collective entity.Collective entities will be held liable for crimes committed to their benefit,regardless of the possibility of identifying the natu

194、ral person who is the perpetrator of the criminal act.The amendment will also introduce the possibility of voluntary submission to liability(with the courts consent),with a limitation of the fine to PLN 5 million(approximately USD 1.1 million)and tighten the sanctions,including fines of up to PLN 30

195、 million(approximately USD 6.4 million).South AfricaAppeal court poised to rule on legal privilege in context of national access to information legislation An appellate court is expected to rule on the scope of legal privilege in South Africa.The case relates to whether two media houses are entitled

196、,under South Africas Promotion of Access to Information Act,to access a copy of an independent investigative report into alleged accounting irregularities at a listed global retailer,or whether this could be refused on legal privilege grounds.The High Court said no,noting that the retailer had faile

197、d to place sufficient objective facts before the Court based on which it could“assess whether it could be said that objectively,litigation was in contemplation.”An appeal is expected this year and will determine the scope of legal privilege in this area.30The Year Ahead|Global Disputes Forecast 2023

198、Regional DevelopmentsRegional Developments:EMEASwitzerlandNew rules on corporate law arbitration proceedingsAs of 1 January 2023,Swiss corporations,limited partnerships and limited liability companies may subject corporate law disputes to a statutory arbitration clause that binds companies,their gov

199、erning bodies and shareholders.To account for the specificities of such corporate law disputes,the Swiss Arbitration Center has issued“Supplemental Swiss Rules for Corporate Law Disputes.”These new rules also implement the statutory requirements applicable to corporate law disputes that can have dir

200、ect legal effects not only for the parties but also others.Under the new law,affected third parties must be notified about the arbitration and are offered the opportunity to comment on the appointment of the arbitral tribunal and to participate in the proceedings.Trkiye Significant change in jurispr

201、udence regarding bankruptcy disputes A recent court decision is expected to result in an increase in creditors bringing bankruptcy proceedings to override arbitration agreements.Previously,a creditor would need to first initiate arbitration to get an award confirming its receivables,and based on thi

202、s award,the creditor could then request the bankruptcy decision from a Turkish court.However,last year,the Turkish Court of Cassation ruled that creditors do not need to initiate arbitration,even where there is a valid arbitration agreement,if they proceed with a bankruptcy request.Although not bind

203、ing,the decision offers a template for other creditors who wish to avoid arbitration.SwedenNew rules on document production in representative actions expected to enter into force Changes to the scope of document production in representative actions are expected to enter into force later this year.Ac

204、cording to the proposal,a defendant may be obliged to produce personal information of individuals that are potentially covered by the plaintiffs proposed action.These rules apply even if the information lacks evidential value,which is usually a criterion for document production in Swedish courts.Thi

205、s proposed change might have a significant impact since it will broaden the obligations for businesses to reveal information about their customers.The changes come as part of the Swedish governments proposals for implementing EU directive 2020/1828 on representative actions in consumer disputes.31Th

206、e Year Ahead|Global Disputes Forecast 2023Regional DevelopmentsRegional Developments:The AmericasMexicoApril 2023 deadline to arbitrate against Mexico under NAFTAThe deadline for investors to file claims with respect to investments established or acquired under the North American Free Trade Agreemen

207、t(NAFTA)will expire this year.On 1 July 2020,NAFTA was terminated and replaced by the United States-Mexico-Canada Agreement(USMCA).Any investments made after that date will not be susceptible to arbitration,as the investment chapter of the USMCA restricts access to international arbitration for most

208、 US companies investing in Mexico.However,USMCA permits legacy NAFTA claims(those relating to investments made or acquired before NAFTAs termination)to be filed for three years after NAFTAs termination,i.e.until 1 July 2023.NAFTA requires a notice of intent to be filed at least 90 days before the cl

209、aim is filed,so the true deadline for commencing a legacy NAFTA claim is 1 April 2023.PeruLegislative proposal to modify the State Procurement Law and the Arbitration Law The Peruvian government has presented a draft bill to Congress that would amend several aspects of arbitration under the State Pr

210、ocurement Law and Arbitration Law.The proposed changes relate to(i)the accreditation of arbitration centers;(ii)the granting of interim measures against the State;and(iii)the default mechanism for resolving disputes related to the State Procurement Law,which will be the national courts unless there

211、is an agreement referring to arbitration.These proposals could be approved and enter into force later this year.BrazilIncreased litigation to set aside arbitral awards expectedArbitration has been highly successful in Brazil and has become the preferred venue for dispute resolution in connection wit

212、h complex contracts.In principle,an arbitral award is tantamount to a final judicial award and the recourse against it is limited.Nonetheless,there has been an increasing number of judicial lawsuits trying to set aside arbitration awards,especially on grounds related to challenges to certain arbitra

213、tors,on the grounds that they lacked the proper independence/impartiality.United StatesNew CPRA expected to increase privacy litigation The California Privacy Rights Act(CPRA)became fully operative on 1 January 2023.The CPRA,which amends the California Consumer Privacy Act,significantly strengthens

214、many of the privacy protections offered to California-based consumers.As a result of these changes,privacy-related litigation will likely increase,in part because of the laws lookback period(access rights now go beyond 12 months),the expiration of the existing laws exceptions related to employee and

215、 business-to-business data,and the addition of numerous new obligations,including data subject rights being extended to the employment context and a new right to limit use and disclosure of sensitive personal information.32The Year Ahead|Global Disputes Forecast 2023Regional DevelopmentsRegional Dev

216、elopments:The AmericasVenezuelaIntroduction of oral proceedings for civil and commercial casesVenezuela is expected to reform the Civil Procedure Code of 1986 to permit oral proceedings in all types of civil and commercial judicial cases.At present,most cases proceed by way of written submissions.Th

217、e introduction of oral proceedings has been proposed on several previous occasions,mostly covering only specific areas,such as constitutional and labor,but even these limited measures were only partially successful.Now,however,a judicial commission,with the support of the National Assembly,is engage

218、d in implementing oral proceedings for all civil and commercial cases and the reforms are expected to pass and be in place by late 2023.It is hoped this will expedite the resolution of cases in areas constituting the bulk of judicial litigation in Venezuela.United StatesSupreme Court to clarify scop

219、e of attorney-client privilege in“dual-purpose communications”The US Supreme Court is expected to clarify the law around attorney-client privilege later this year.The decision will resolve a split among the federal circuits as to when attorney-client privilege protects“dual-purpose communications”-t

220、hose containing both legal and non-legal advice.The D.C.Circuit previously held that dual-purpose communications are privileged where one of the significant purposes is to obtain or provide legal advice.In contrast,the Seventh Circuit held that dual-purpose communications in connection with tax retu

221、rn preparation are never privileged.In the present case,the Ninth Circuit adopted the“primary purpose test.”The outcome,which is expected by the end of the Supreme Courts term in June,will have significant implications in both criminal and civil proceedings.33The Year Ahead|Global Disputes Forecast

222、2023ContactsAsia PacificNandakumar PonniyaPartner,SingaporeNandakumar.PConsumer Goods and RetailKatia Boneva-DesmichtPartner,ParisKatia.Boneva-DGlobal Dispute ResolutionClaudia Benavides Partner,BogotaClaudia.BEurope,the Middle East and AfricaSteve AbrahamPartner,LondonStephen.AInternational Arbitra

223、tionEd PoultonPartner,LondonEd.PThe AmericasPeter TomczakPartner,ChicagoPeter.TInvestigations.Compliance and EthicsWilliam DevaneyPartner,New YorkWilliam.DFinancial InstitutionsDaniela FonsecaPartner,MiamiDaniela.FonsecaPEnergy,Mining and InfrastructureAndy MoodyPartner,LondonAndy.MEnergy,Mining and

224、 InfrastructureNandakumar PonniyaPartner,SingaporeNandakumar.PFinancial InstitutionsChristoph KurthPartner,ZurichChristoph.KFinancial InstitutionsJonathan PeddiePartner,LondonJonathan.PeddieBIndustrials,Manufacturing and TransportationReagan DemasPartner,Washington,DCInvestigations,Compliance and Et

225、hicsJoanna LudlamPartner,LondonJoanna.LContactsThe AmericasLuis DatesPartner,Buenos AiresLuis.DConsumer Goods and RetailJennifer SemkoPartner,Washington,DCFinancial InstitutionsAmy GreerPartner,New YorkAmy.GFinancial InstitutionsHugh LyonsPartner,LondonHugh.LTechnology,Media and TelecommunicationsFr

226、ancesca RichmondPartner,LondonFrancesca.RTechnology,Media and TelecommunicationsTeresa MichaudPartner,Los AngelesTeresa.MHealthcareMaurice BellanPartner,Washington,DCIndustrials,Manufacturing and TransportationKate CorbyPartner,LondonKate.CIndustrials,Manufacturing and TransportationMarcio Polto*Par

227、tner at Trench Rossi WatanabeMarcio.P*Baker McKenzie and Trench Rossi Watanabe have executed a strategic cooperation agreement for consulting on foreign law.Country ContactsClick here34The Year Ahead|Global Disputes Forecast 2023ContentsSurvey methodology The study surveyed a total of 600 senior leg

228、al and risk leaders from large organizations(annual revenue greater than USD 500 million)based in the UK,USA,Singapore and Brazil.Fieldwork was completed in September 2022.Baker McKenzie“benefits from a strong network of offices worldwide,they have a high capacity to advise on cross-and multi-jurisd

229、ictional matters”Chambers Global 202235The Year Ahead|Global Disputes Forecast 2023Protecting your business in a global market takes lawyers who can dominate pivotal cases while maintaining broad perspective.Our dispute resolution team comprises battle-tested litigators with deep roots in their home

230、 jurisdictions drawing on the wisdom gained from local training,contacts and cultural understanding to drive your litigation strategy.As part of an integrated global team,we ensure that business objectives arent sacrificed to one-off wins,and that your reputation for fair dealing remains intact.Abou

231、t usGlobal Litigation Force#1Worlds strongest law firm brand 12 years running(most recent Thomson Reuters data)1,000+Dispute Resolution practitioners globally#1Most considered for multi-jurisdictional litigation(most recent Thomson Reuters data)74offices in 45 countries287for Dispute Resolution and

232、Arbitration than any other firm(Chambers Global 2022)of the Fortune 500RepresentsMore rankingsBaker McKenzie helps clients overcome the challenges of competing in the global economy.We solve complex legal problems across borders and practice areas.Our unique culture,developed over 65 years,enables o

233、ur 13,000 people to understand local markets and navigate multiple jurisdictions,working together as trusted colleagues and friends to instill confidence in our clients.2023 Baker McKenzie.All rights reserved.Baker&McKenzie International is a global law firm with member law firms around the world.In

234、 accordance withthe common terminology used in professional service organizations,reference to a“partner”means a person who is a partner or equivalent in such a law firm.Similarly,reference to an“office”means an office of any such law firm.This may qualify as“Attorney Advertising”requiring notice in some jurisdictions.Priorresults do not guarantee a similar outcome.Publication date:10 January

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