So, what does the realm of dispute resolution look like in 2023 and beyond?
According to John B Quinn, Founding Partner at Quinn Emanuel Urquhart & Sullivan LLP, “Many people say that litigation is counter-cyclical with the economy and that there are more disputes when there’s an economic downturn. As a litigator for over 40 years, I have to say that I don’t think litigation correlates with the economy; certainly, in some areas, it does with litigation relating to insolvencies, bankruptcies and the like. But, when things are going well in the economy and companies are making money, they will pursue claims and enforce rights for they have the wherewithal to finance litigation that they, otherwise, wouldn’t have. Frankly, we’ve seen the growth of litigation both in good times and in bad times. I don’t think it correlates exactly with macroeconomic factors”.
And what are the kinds of litigation poised to fill the courts in 2023 and beyond?
Quinn remarks, “One thing that we’ve all learned coming out of the COVID-19 pandemic is the importance of intellectual property capital. Companies see their intellectual property, like their patents on inventions, as being so important to the protection of their businesses, moats around their businesses and protection from competition. So, we’re seeing more and more claims between major operating companies relating to patents and inventions. And there’s, also, antitrust, with developments of laws and regulations hostile to the aggregation of power in market-dominating companies. In the US, regulatory bodies make no bones about the fact that they’re going out and challenging mergers and behaviour they regard as anti-competitive, even if they’re tough cases or if they’re going to lose. This has had a chilling effect on the business environment with companies thinking twice about acquisitions, because they have to keep it in the back of their mind that it would be challenged by the government”.
“There’s, also, ESG: principally, the E. There’s increasing pressure on companies to come forward and adopt policies that are sustainable and demonstrate that they have policies and practices in place to show they can weather the storms. And we’re seeing private actions being brought for greenwashing of all kinds, where companies are claiming that their products or services are friendly for the environment when they’re actually not. We’re seeing challenges by shareholders for not having adopted policies that take into account environmental concerns. This is not going to go away: I think ESG particularly, environment-related litigation, is going to become more and more important. And we’re seeing claims relating to data privacy and breaches all the time in the US. At one point in time, we weren’t really sensitive to privacy issues, but with the evolution of Big Tech being seen as Big Brother, people understand that their data is being collected even when there are privacy settings”, adds Quinn.
What about in India?
According to Cyril Shroff, Managing Partner at Cyril Amarchand Mangaldas, “When it comes to India and having 75 years of independence, it’s moving from a relationship-based society to a more rules-based society. The policy and regulatory environment is becoming more masculine and activist. Our court system, being overburdened, is not the preferred primary source, where people resolve conflicts and the regulators and the State have come in to fill that gap. So, we’ve seen a dramatic rise in regulatory litigation… A third area of litigation we’re poised to see in India is public markets litigation in terms of securities, which we’ve seen a rise of as well. We’re, also, seeing trends in terms of investment treaty disputes”.
And what could generative AI mean for the legal process?
Quinn remarks, “While generative AI is changing at such a rapid pace that it would affect the legal profession, it, also, raises all sorts of new legal problems. In the US, there are novel issues being raised, like whether the dataset for the AI programme includes copyrighted material owned by someone else and more. With the process of litigation, there are a lot of documents and questions that could be asked to AI systems where they could sift through evidence and give responses with citations. This sort of thing could take weeks for young lawyers to comb through and read. But, there may be hallucinations, where the existing systems may not be perfect, but in a couple of years, the systems we’re looking at now may be regarded as rudimentary”.
Shroff declares, “At some stage, there will be a tipping point, where the ability of these machines would exceed that of the human mind. There will be guardrails built to protect against some of the errors. But, even the work that human beings do is not perfect and there are lots of human errors as well. At some point, the reliability of the outputs we get from machines would be less error-prone. There’s going to be an impact on knowledge-based organizations, like law firms, management consultants, architects, journalism and more. One distinct long-term trend would be the reduction in junior associates. And mid-level or senior associates hired would significantly require more technology skills and that doesn’t necessarily mean coding skills, but the ability of lawyers to have a skillset to harness technology, ask the right questions, join the dots and put together a use case would go up”.
“We’re living through one of the most transformative moments of humankind. It’s scary, but, at the same time, it’s exciting, because all predictions in the past of humanity have become irrelevant, when major technological changes have proved it all wrong”, quips Shroff.
Watch the full interaction here:
