EWJ 60 April 2025 web - Journal - Page 31
the words "Super" and "Dry" on Manchester City
football kits (which referred to the club's sponsor, Asahi
Super Dry). The Claimant, the owners of the
well-known brand Superdry, alleged that this caused
confusion with its brand.
governmental organisations. As at the date of this
article, it has 58 signatories (including the UK, the US,
and China), of which 15 have ratified it (albeit not yet
the UK), most recently Israel.
Perhaps more importantly, the Convention has seen
significant judicial support, most recently from Lady
Carr – the Lady Chief Justice and a member of the
Court of Appeal that decided Churchill – in the Presidents Circle Lecture 2025 that she delivered to the
British Institute of International and Comparative
Law in January 2025.
Relatively late in the proceedings, at the pre-trial
review, the Claimants applied for an order for compulsory mediation. The Claimants referred to the recent amendments to the CPR, and argued such an
order was appropriate because (i) the dispute was not
particularly complicated and was capable of resolution
by mediation; (ii) some issues in dispute could be more
readily resolved by solutions reached by compromise
rather than by court order (for example, in relation
to the form and size of the logo and lettering on the
sports kit and the timing of certain changes); and (iii)
the parties were about to incur hundreds of thousands
of pounds of further costs in the leadup to and during
trial.
In the lecture, Lady Carr noted the "shift in mindset" in
recent years from the view that litigation and ADR
were in tension, and towards the view that ADR is "an
essential element in a range of tools […] available to resolve
disputes". She considered that the Convention specifically, and the promotion of international mediation
more generally, would enhance the rule of law, and
signal the commitment of participating states to that
principle. She identified that this might include the
development of international commercial mediation
centres, the growing role of trained and skilled mediators, and the support of courts to assist international
mediation just as they do for international arbitration.
The Defendant argued that (i) mediation was only
likely to succeed in the context of a claim which had a
realistic prospect of success which, according to the
Defendant, this did not, and (ii) mediation would not
be appropriate because both parties wanted a judicial
determination of their rights. According to the Defendants, the fact that the Claimant had previously
stated that they would not allow the Superdry brand
to be associated with any football club's kit indicated
that mediation would not lead to a compromise. The
Defendant also raised concerns about the timing of
the mediation request, given the imminent trial and
the significant costs which had already been incurred.
In particular in relation to the UK, Lady Carr
speculated on the establishment of a London Dispute
Resolution Committee to make recommendations as
to how London could develop a "a more fully holistic
approach to the three forms of international dispute
resolution" (litigation, arbitration, and mediation), on
further amendments to the CPR, and on how the
Commercial Court might provide effective support for
international mediation.
Decision
The Court ordered the parties to mediate, recognising
the potential for mediation to crack "even the hardest
nuts" and emphasising the potential for mediation to
facilitate creative resolution of disputes in a manner
that "goes beyond the binary answer a court could provide".
the fact that the order for mediation had been sought
close to trial was not a bar to such order being granted,
and the fact that the parties' positions had been crystallised through pleadings and the service of witness
statements was likely to assist. The Court also did not
consider that mediation would significantly disrupt
the parties' preparations for trial.
These developments are ongoing, but the direction of
travel is now visible and distinct. Businesses engaged
in disputes, and those who see the advantages of
preparing for them, can reasonably expect the English
courts to support increasing efforts to encourage, and
where appropriate compel, parties to resolve their
disputes through negotiated dispute resolution in
parallel to pursuing litigation.
Practical takeaways
Amendments to the CPR, the decision in DKH Retail,
and recent commentary from senior members of the
judiciary emphasises the growing role of ADR in the
English judicial process.
The order clearly worked: somewhat pointedly, the
reported judgment now finishes with the postscript
"on 13 January 2025 the parties notified the court that they
had settled their Dispute".
Parties to litigation should consider proposing
mediation at the appropriate time in a dispute. This
might be not only at the outset of a dispute, when costs
have yet to mount up and parties' positions might not
have become entrenched, but also at later stages of
proceedings, when pleadings have been exchanged
and the parties' positions have crystallised, and the
merits might more readily be assessed.
The effect of the Singapore Convention
It is not just the English court that is adept at
resolving international disputes. The Convention is a
multi-lateral treaty establishing "a uniform and efficient
framework for international settlement agreements resulting
from mediation" aimed at supporting the direct crossborder enforceability of such agreements without the
need to bring proceedings for breach of contract. This
should afford contracting parties further assurance
that their counterparties will comply with mediated
settlement obligations. Its creation involved the
participation of 85 Member States and 35 nonEXPERT WITNESS JOURNAL
Parties should also recognise, and consider utilising (i)
the court's increased willingness to order mediation or
another form of ADR, and; (ii) the threat of an adverse
costs order for non-compliance, or even a failure to
participate in voluntary ADR. Even before disputes
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