Author: Dr. Loukas Mistelis*
Published: June 2006
I. INTRODUCTION – THE CONTEXT OF THE SURVEY
Disputes are an inevitable occurrence in many international commercial transactions and a consequence of increased globalisation and further market liberalisation. Different commercial and legal expectations, cultural approaches, political ramifications and geographic situations are all sources for disagreement and dispute between contracting parties. Genuine differences can concern the meaning of contract terms, the legal implications for a contract, and the respective rights and obligations of the parties. Sometimes parties agree to reform a contract where performance is just not possible. Extraneous factors and human frailties, whether through mismanagement or over-expectation, will also interfere with contractual performance. A major area of dispute is the failure to pay money due under a contract; this may be because of an inability to pay or a wish not to pay and therefore one party is seeking an excuse or a justification to refuse to pay all or part of the contract price.
*LLB (Hons, Athens), MLE (magna cum laude), Dr Iuris (summa cum laude) Hanover, MCIArb, Advocate, Clive Schmitthof Professor of Transnational Commercial Law and Arbitration; Director, School of International Arbitration, Centre for Commercial Studies, Queen Mary University of London. I am grateful to Professor Julian D. M. Lew, QC and to Gerry Lagerberg, James Parker, Melanie Vaughn and Amanda Philips, of PriceWaterhouseCoopers LLP, for their comments and criticism on earlier drafts of this report. I am also thankful to PriceWaterhouseCoopers for funding this research, without which this research would not have been possible. Errors of fact, judgment, and taste are, of course, mine.