“As a litigator I would prefer if they were more predictable because that’s how you end disputes, but they are fairly predictable," he observes.
Primacy of detail
“What the judges try to do is to give effect to commercial bargains between people so that primacy of detail and control over the commercial bargain, that a lot of you invest huge energy in, is well worth it,” Black says.
Key points for dispute management
- organisational clarity around your objective
- organisational clarity around what you will accept less than your objective
- lawyers get obsessed about documents but cases are usually won by witnesses.
Witnesses are crucial Black believes. Can they carry a narrative, are they credible , are they loyal, will they turn up?
Second in importance is documents.
What are the key documents, what are the bad documents, do you understand the likely documents which will exist in the hands of other parties?
Thirdly, cost. Have you done an economic analysis. What is the likely outcome in economic terms of a win, of a loss, and what are the intermediate possibilities.
Other key factors in Black’s mind are the risk to reputation, win or lose, and the risk of contagion which could impact other areas of business.
A decision around contractual interpretation could have systemic effect around other contracts, a decision in relation to corporate structure could have tax implications, he says.
MHC partner Gareth Steen says “Aircraft leasing companies, I suspect, don’t realise quite how relevant the Irish courts are.
"This is primarily because the governing law of their documents is likely to either be New York or English law and in those circumstances it’s understandable why you would think the Irish courts aren’t particularly relevant but an enormous number of aircraft leasing companies are incorporated in Ireland.
“They have Irish employees. Irish law security must be taken over Irish assets.
"The relevant international registry is located in Ireland and irrespective of what your contractual documents say, in respect of forum or governing law, you can’t prevent somebody from issuing spurious litigation against you in Ireland in any event so it is inevitable that the Irish courts will be of relevance.”