Litigation brief: crypto-assets, financial sanctions, and the future of dispute resolution
Published on 4th Apr 2022
The Master of the Rolls' vision for the future of dispute resolution; financial sanctions, force majeure and licences; crypto-assets; and contractual questions over the parties' intentions
Welcome to the latest edition of Osborne Clarke's Litigation Brief.
Recent developments covered in this edition focus on the Master of the Rolls' vision for the future of dispute resolution, contractual issues arising out of financial sanctions, the possible use of crypto-assets as part of the litigation process and how time can be of the essence in your contract even if you don't use that phrase.
The future of Dispute Resolution
Sir Geoffrey Vos, the Master of the Rolls (the most senior judge in England and Wales after the Lord Chief Justice), has recently set out his vision for how dispute resolution is likely to change in order to respond to the technological changes which our society is now undergoing. A "funnel with three layers" is currently in the process of being set up (and overseen by a newly formed Online Procedure Rules Committee): starting with a website and app signposting claimants to the pre-action protocols and encouraging settlement and then moving to an online justice process to resolve claims. But, wider than this, is a recognition that new technologies will lead to different types of disputes.
Financial sanctions: force majeure and licences
The imposition of financial and trade sanctions by the UK, EU, US and others following the war in Ukraine will have far-reaching consequences for businesses with ties to Russia. It has also generated a renewed focus on contractual clauses designed to deal with the impact of extreme external events on the performance of the contract.
One such clause, which came to the fore during the pandemic, is the force majeure (FM) clause. A recent sanctions-related case has examined what a requirement in an FM clause to use "reasonable endeavours" means.
Crypto-assets as security
In the speech mentioned above, the Master of the Rolls also noted that there has been a massive rise in litigation concerning a wide variety of crypto-frauds. Increasingly, issues concerning the nature of crypto-assets are beginning to affect the litigation process in England too. A recent case considered the suitability of providing crypto-assets as security for an opponent's costs.
Contracts: how judges decide disputes
Where contract wording is ambiguous, the courts will strive to give effect to the parties' intentions (as they objectively appear to the judge). How problems are handled after a dispute arises might also lead a judge to find that, objectively, one side has given up a contractual right. Both issues cropped up in recent cases.