Carlijn ten Bruggencate, perspectives on smart contracts and smarter resolutions
UNUM believes it is important to raise awareness about the benefits of arbitration or for solving disputes. In this edition of ‘Perspectives on alternative dispute resolution’ Carlijn ten Bruggencate, partner at Cox Ten Bruggencate (www.cxtb.nl), shares her views. Cox Ten Bruggencate is an ambitious boutique law firm, specialising in transport, trade, logistics, liability and insurance law.
Carlijn, which prevailing trends in the maritime industry, and in particular in your field of expertise, do you believe will have a substantial impact on doing business (and why)?
A trend that can be seen broadly is that many aspects of society, including running logistics operations and doing business with other companies, rapidly become more complex. Regulatory pressure increases with new legislation on both operational aspects as well as financial and administrative issues. Technology becomes more and more advanced. This opens many new opportunities, and it is fascinating to see to what concrete new machines and solutions this leads in the logistics industry.
At the same time, all these new regulations and opportunities entail potential problems and disputes that need to be anticipated in contracts, such as logistics agreements. The basics like price, volume and quality of service now share their place in a contract with privacy, data protection, sanctions, anti terrorism measures, sustainability, IT systems, property rights over expensive machines and financial constructions. Apart from that, technological solutions allow operations to grow bigger, meaning that the stakes in a potential conflict increase as well.
A good contract helps parties to avoid conflicts or to solve them efficiently, but unfortunately reality sometimes dictates otherwise. Contracts are often affected by the commercial reality of inequality of partners, and by lack of time or knowledge. And of course, not every conflict or problem can be avoided.
Which unforeseen areas of potential disputes between parties do you think might arise from these trends (and why)?
I think this trend will simply widen the scope of issues that parties can end up having a dispute over. ‘Classic’ disputes over calculated prices, the quality and timeliness of services, cargo damage and loss and policy coverage still form a large part of the issues we assist with and that will perhaps not change. But in addition to that, disputes arise over parts of the agreement that do not form the core of an operation, and this category may increase.
How can mediation, whether or not combined with arbitration, help to create to mutually beneficial results and competitive advantage for all parties?
Lawyers should always keep top of mind that companies and persons want solutions, not the dragging on of problems. Once a problem is so complex or high value that parties involve lawyers, the outcome is hardly ever a full win for the one and a full loss for the other. This is not different for court or arbitration proceedings. It means that lawyers should provide advice to their clients in an early stage that is as accurately as possible on the ups and downs of a matter. They should, where necessary, pave the psychological path towards an out of court solution. Mediation can be helpful where parties do this or intend to do this, but nevertheless fail to come within a common range that allows for a solution. As more and more different issues can and do arise between commercial parties, I think there is an increasing role for mediation.
What would be the main reasons for parties to choose to opt for dispute resolution through the Dutch system?
The Dutch legal system has a valuable reputation of high quality, impartiality and efficiency. This concerns both court proceedings and arbitration. We may take this for granted in The Netherlands, but every one who is involved in foreign proceedings regularly knows this is something to cherish. We also see that the court system and judges in some other countries are under severe political pressure at the moment or have been corrupted by the political system in the near past. This is a risk in every country, and it is therefore of extreme importance that the Dutch court system, judges and individual judgments receive the respect that they deserve.
What steps should companies take to be able to take full advantage of alternative dispute resolution?
Each problem has its own characteristics, and the package of them demands a specific solution. Some straight forward claims in the domestic sphere are best dealt with in the Dutch court system. But the advantage of arbitration is that it allows for a tailor-made process. This can either be a short route with seasoned logistics arbitrators towards a swift solution, or proceedings that include sufficient submissions, hearings and taking of evidence. It can also be mediation. The most important thing for parties to do is contemplate this well at the beginning of the process and instruct a lawyer that helps it to find a solution as efficiently as possible.
