In today’s global economy, organisations are faced with an increased risk of litigation and complex business disputes from every front. If not settled, disputes between business partners, competitors and shareholders may result in disruptive actions emerging, from breach of contract disputes to large-scale class action suits.
Our Disputes professionals can assist clients at different stages of a dispute as they assess the best approach, whether that be resolution through negotiations or mediation, or via subject matter and expert witness support.
How can we help?
Our team of specialists have extensive experience of advising clients and their legal teams in a wide variety of disputes. Drawing on our deep expert witness, financial analysis, damage quantification, and discovery capabilities, we give our clients insight and understanding at different stages of a business dispute
In addition to High Court disputes, we are regularly instructed to work with clients in relation to matters that are resolved under the auspices of arbitration institutions, such as the ICC, LCIA, ICDR, or other international administrative bodies.
The last few decades have seen substantial growth in the volume of international disputes as a result of several factors including the globalisation of the economy, expansion of cross border relationships and in foreign investment. As a result, international arbitration has enjoyed rising popularity with business and other users, with very substantial growth over the last ten years in particular.
At Deloitte we understand what it means to clients to resolve international disputes as effectively and efficiently as practicable, supported by reliable and independent expert advice.
Our teams are tailored to bring the client the right blend of industry expertise, coupled with technical skills, as well as our arbitration and testifying experience. We are also uniquely positioned to leverage on the experience of our local teams.
A particular area of focus for us is the Transactions / M&A sector where a significant percentage of a deal’s perceived value – often over 10% of the headline price - can be placed at risk in post-closing disagreements between buyer and seller over either the completion accounts struck at the date of completion or over warranties given prior to the sale.
Although a large proportion of deals are closed with minimal (or no) such disagreements, a noticeable proportion do result in hard-fought negotiations or even formal dispute resolution procedures. Such disagreements, on the occasions when they do occur, not only risk significant value leakage but can also tie up significant senior management time.
While there is no certain way to predict which deals may generate post-closing difficulties, amongst the factors that in our experience may increase the likelihood of disagreements occurring are: accounting complexities and judgements inherent in a deal; the target’s financial performance falling below expectations; ambiguity in the accounting policies within the SPA; unfamiliar accounting policies; and cultural differences between buyer and seller.
A successful outcome from a transaction-related dispute, whether centred on a set of completion (or earnout) accounts or a breach of warranty, will usually involve:
- An understanding of the acquired / sold business and its detailed accounting
- An understanding of the accounting policies mandated by the sale agreement
- Obtaining and collating the relevant evidence
- Clear analysis and assessment of that evidence
- Succinct, logical and supportable presentation of a position rooted in the sale agreement and/or technical accounting literature
- Timely and effective decision making by the principal and its advisors as the process evolves.
We provide dispute advisory services to our clients and assist them in protecting the value and reputation of business by addressing serious issues before they turn into crises.
The traditional approach to the case management process puts significant pressure on the time of senior stakeholders assessing the initial merits of a case and searching for relevant documentation.
With over 70% of General Counsel reporting that legal disputes are resolved out of Court, new methods are vital to timely assess the commercial impact on the business. Working directly with you and your legal advisors, our disputes and forensic technology experts can assist with the identification and extraction of critical documents, computer assisted review and assessment of evidence available in support of quantum claims. These capabilities mean organisations are better able to prioritise efforts and resources across cases at the early stage.
Working alongside your legal counsel as expert advisors, our disputes professionals can provide valuable insight into data and evidence sufficiency for quantum claims, alternative scenarios and assessment of realistic quantum, as well as participate in mediation and negotiated settlements avoiding costly legal proceedings.
Our industry expertise
Corporates are now increasingly involving external expertise before commencing litigation or/and dispute proceedings to strengthen their position.
Our team have worked on a wide variety of disputes across many different industries. Due to the frequency and
Construction & Infrastructure disputes
Environmental issues, increased regulations and narrow margins challenge construction and infrastructure projects. The causes of disputes in these projects can broadly be categorised in four ways:
- Owner related (i.e. change in scope, payment delays)
- Contractor related (i.e. financial failures, time delay)
- Project (i.e. contract, design)
- Related or external factors (i.e. weather, site conditions).
Irrespective of the cause of dispute, our broad experience in the sector enables us to assist our clients.
We have many years of experience of working in the following areas:
- Advisory – working with developers and funders to monitor major projects
- Business valuations – understanding the valuation of construction and infrastructure projects and companies
- Consequential loss of profits claims – across permitted jurisdictions
- CPO claims – loss of profits on relocation or valuation on extinguishment
- Delay analysis - additional costs of work and delay deductions, change orders, overage claims and defects rectification
- Forensic technology – data analytics, electronic disclosure
- Insurance claims – loss of profits following rectification work and similar
- Investigation work – cost verification work, contract reviews and bribery investigations
- Termination losses – losses in project values
Energy & Resources disputes
The Energy & Resources sector invests in large capital intensive projects that can take many years to generate a return on investment. During the life of a project, changes in technology, economic conditions, host governments and joint venture partners can often lead to disputes.
There are typically numerous high value contracts and business acquisitions/disposals, all of which have factors which are unique to the industry sector and require specialist industry experience and expertise to interpret.
In addition to providing expert opinion and advice on a range of quantification accounting issues, we have many years of experience of working with:
- Licence or concession agreements
- Production sharing contracts
- Service contracts
- Joint venture agreements
- Joint operating agreements
- Gas supply agreements
- Pricing agreements
- Tolling agreements
- Pipeline and processing tariff agreements
- Insurance contracts
- Sale and purchase agreements
Financial Services disputes
The Financial Services industry invests in large, complex structured transactions and as a consequence can be subject to contentious issues such as valuation, modelling and the commercial or economic rationale for transactions. In an industry continually influenced by complex economic and technological factors, this can often lead to dispute.
There are typically numerous transactions of high value and complexity, all subject to factors which are unique to the industry sector and require specialist industry experience and expertise to interpret.
In addition to providing expert opinion and advice on a range of quantification accounting issues, we have many years of experience of providing:
- Litigation support
- Dispute advisory services
- Restructuring support
- Asset valuation and protection
- Cash flow modelling of structured products
- Data extraction and analytic assistance
- Stakeholder management
Our integrated team have a wealth of experience in translating complex information and analysis into understandable and concise language for use in a wide variety of contentious matters. Our involvement in financial services disputes has ranged from assisting clients in assessing the commercial and financial merits of any potential claim, through to providing full dispute advisory services and expert witness appointments.
We combine familiarity with complex financial instruments with experience of litigation protocols. Underpinning our capability is our Forensic Technology team with experience of making sense of the systems and data available, applying advanced data analytic techniques to present the information in a format that can be analysed by our dispute teams and in court.
Due to the high levels of technical complexity, detailed licensing arrangements and often mutually dependent and tense relations between key players, disputes that arise in the Technology sector are critical to the ongoing success of individual businesses.
The Technology industries are rich in intellectual property, with significant levels of patent co-dependency between key players. The line between “standing on the shoulders of giants” and outright copying can be difficult to determine and both the technical complexity of the subject matter and the co-dependent nature of the industry means that a commercial agreement is often preferable to a formal dispute.
High value, mission-critical, technology implementations, particularly where there is a significant element of novelty to the technology involved, can be both high value and complex. These unique IT elements have consequences for contractual disputes, business acquisitions/disposals and intellectual property negotiations/disputes. All these factors mean that specialist industry experience and expertise is required to sit alongside the traditional Forensic skill set.
In addition to providing expert opinion and advice on a range of quantification accounting issues, we have many years of experience of working with many sector related issues, including:
- IT outsourcing and implementation contracts
- Complex IT systems
- Intellectual property (IP) licences and infringement related matters, including determining the extent of plagiarism in computer code
- Joint venture and sale and purchase agreements
To succeed in this environment we bring together dispute professionals, with relevant industry experience, who provide powerful financial analysis, convincing evidence and sophisticated tools.
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