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Discover thought leadership and legal insights by our legal experts from across CMS. In our Expert Guides, written by CMS lawyers from across the jurisdictions where we operate, we provide you with in-depth legal research and insights that can be read both online and offline. You can also find Law-Now articles with focused legal analysis, commentary and insights to help you anticipate future challenges and much more.



Media type
Expertise
11/03/2024
AI: When it pays to work smarter
How AI can unlock value and spot hidden IP traps in M&A transactions | 6 min read Imagine you’re looking to acquire or invest in an IP-rich business which has a portfolio of patents. How do you know if those patents are actually worth anything? Do you know if they are valid? Do you know if anyone is infringing them – thereby eating into the target company’s technology exclusivity? Do they even secure the company’s core in­nov­a­tions?Ar­ti­fi­cial intelligence (AI) driven solutions that are now on the market can help you identify key value opportunities and identify potential hidden skeletons. Key contacts   Joel Vertes, Intellectual PropertyToby Sears, Intellectual PropertyLouis Glass, Technology M&A and VC
01/03/2024
Deciphering dispute values in arbitration - A call for consistent reporting
Hypothesis: The total sum in dispute spiked and settled in line with arbitration caseloads[1]  In our first report exploring arbitration topics as part of our ‘data driven disputes’ campaign, we saw arbitration caseloads spike in 2020 and 2021 due to the COVID pandemic and other international geopolitical issues. The numbers have since settled back down. In this third report, we look at whether the Total Sum in Dispute[2] followed the same trajectory as the Arbitration Caseloads, with a spike in 2020 and 2021 before stabilising. We also considered whether the average value of an arbitration dispute (the Mean and Median Sum in Dispute) changed in response to those same global dynamics and, if so – how? Our starting point was to consider whether fire-fighting the effects of COVID-19 and the financial crisis may have forced many small and medium sized-en­ter­prises (with correspondingly small and medium-sized disputes) not to pursue arbitrations when they otherwise might have done. This could have artificially inflated the Mean Sum in Dispute for arbitrations registered in 2020-2021, given that only large and more financially stable organisations would be in a position to bring their typically (albeit not always) larger disputes. In the process of testing our hypotheses, we discovered that there was a noticeable lack of data on disputes values published by arbitral institutions, and where data is available, there is a significant lack of uniformity in terms of what is reported and how it is reported. In our view, this is a cause of concern, as institutions should be striving for transparency and accountability, not only as an end in itself, but also to helps arbitration users when selecting an institution to administer their disputes. Greater transparency would also allow institutions to consider global trends and identify how best to position themselves and their services. Research and methodology In order to conduct our analysis, we carried out desk research and qualitative interviews: Trajectory of total sum in dispute vs arbitration caseloads – regional disparities As noted above, there was a significant discrepancy in the amount of data that was publicly available in relation to the Total Sum in Dispute as compared with the institutions’ caseloads. However, we did observe that despite the overall increase in arbitration caseloads globally, the Total Sum in Dispute did not follow the same trend globally, only in Europe. As shown in the graph below, most of the major European institutions saw the Total Sum in Dispute increase (for instance, the ICC’s Total Sum in Dispute increased from USD 37bn in 2017 to USD 101bn in 2022). However, in the APAC region, the statistics show an overall decline in the Total Sum in Dispute over the past five years (with the exception of CIETAC, which consistently saw growth over the last five years from USD 10 bn to USD 17 bn, save for a slight dip in 2020). Given that APAC was the best performing market in terms of the number of arbitrations filed in 2022, one might have expected a correlating increase in the Total Sum in Dispute. However, as shown on the graph below, both SIAC and HKIAC, the two major institutions in APAC, did not see any significant growth in the Total Sum in Dispute overall. The SIAC did see a spike in 2019-2020, and this may be due to increased cases as a result of the COVID-19 pandemic, which has since stabilised. Unfortunately, there is not enough data available from institutions from other regions to discern a trend in terms of dispute values outside of Europe and Asia. The ICDR-AAA publishes data on Total Sum in Dispute and this has been fluctuating, at USD 8.2bn in 2018, dipping to USD 4.8bn in 2019, increasing to USD 6.1bn in 2020, and dipping to USD 4.2 bn in 2022. Largest players In terms of arbitral institutions with the highest dispute values, ICC is at the top of the table with a Total Sum in Dispute of US$ 37 bn – US$ 112 bn over the period 2017 to 2022, followed by CIETAC with US$10.11 bn – 17.85 bn over the period 2017 to 2022. ICDR, DIS, HKIAC, and SIAC make up the next category of institutions, with Total Dispute Values falling in the US$ 4bn – US$ 8bn range over the period 2017 to 2022. Most other institutions have a Total Sum in Dispute Value of US$ 2bn or less, such as SCC, VIAC and SAC. Impact on SMEs and average dispute values Only five of the institutions that we analysed report the Mean Sum in Dispute, while only two report the Median Sum in Dispute. Due to the scarcity of data on the Mean or Median Sum in Dispute, we were not able effectively to test our second hypothesis on whether average dispute values did indeed spike alongside caseload numbers in 2020/2021 and then settle back down. However, in APAC, the fact that (a) there was an increase in case numbers and (b) the Total Sum in Dispute declined suggests that the Mean Sum in Dispute in APAC fell, contrary to what we hypothesised. Scarce and inconsistent data on dispute values As is evident from our analysis above, our ability to identify trends around dispute values has been limited by the fact that many arbitral institutions do not publish data on dispute values, and where such data is publicly available, there is a lack of consistency across institutions in how this data is reported. Most institutions that publish data on dispute values provide the Total Sum in Dispute[3], a handful provide a breakdown of those administered by the institution[4] and some include counterclaim amounts[5]. Some institutions only report on the Median Sum in Dispute[6], while others indicate the percentage of cases within different ranges[7]. Only five of the institutions we analysed report the Mean Sum in Dispute[8], whereas only two report the Median Sum in Dispute[9]. Bodies such as the International Federation for Commercial Arbitration Institutions[10] are exploring the possibility of institutions harmonising the way they arrive at and report their statistics. Such standardisation would certainly help users, though it does not yet seem to have gained much traction with the arbitral institutions. A call to action for arbitral institutions The broader conclusion from our analysis is that institutions should strive towards greater transparency and consistency in reporting the Total, Mean, and Median Sum in Dispute, as well as the general spread of cases.
01/03/2024
Digital Assets
Does your business have or is it ready for digitalisation and digital assets? Digital assets are transforming the world of business. Not just technologies in the news, like AI and crypto currencies, but a whole world of technological advances, from digital twins and extended reality to smart contracts and token­isa­tion. For tech businesses and those already using such technology to develop and market new products, much of this is core activity and relatively well understood – although legal and regulatory uncertainties remain, and potential pitfalls still exist for the unwary. But other business leaders, often less familiar with the territory, have to manage an increasingly complex assortment of issues that never troubled their predecessors, ranging from protecting their brand in the metaverse to deciding whether they should tokenise their shares or accept payments in crypto currencies. This section of Bandwidth looks at issues around the development and regulation of a wide variety of digital assets, and discusses how businesses can embrace them to innovate and evolve.
28/02/2024
On Point: Insight paper series
Navigating the business landscape in Scotland and beyond presents numerous challenges. From escalating costs to talent scarcity, evolving regulations, and technological advancements, alongside political uncertainties. At CMS Scotland, we are committed to working with our clients to support them with these complexities.
27/02/2024
Highlights of our experience in PPP/ PFI Operational Support in the UK
Healthcare: a portfolio of healthcare projects We currently advise on over 40 acute healthcare PPP/PFI projects in their operational phase in­clud­ing: Alder Hey Children’s Hospital, Liverpool; QEH Birmingham...
21/02/2024
Introduction to Planning Law (Episodes 1-3)
In this series of Planning Ahead, we address Heritage & Conservation within the Planning System. Over three episodes, Nicola Insley introduces the key concepts planning law, discusses conditions vs s106 obligations and provides an overview of what you might expect from planning decisions, appeals and call-ins.
21/02/2024
Renewable energy consenting series
In this series of Planning Ahead, we discuss the process of consenting for Renewable Energy Developments. Over the course of three episodes, Nicola Insley, and later on Robert Garden, provide an overview of the different Consenting Regimes in the UK, with a particular focus on NSIPs and DCOs as well as key points to keep in mind to avoid application challenges and refusal.
21/02/2024
Environmental Impact Assessments (EIA)
In this series of Planning Ahead, we discuss Environmental Impact Assessments (EIA). Nicola Insley and Kathryn Nolin provide an overview of EIAs, the typical problem areas (including how to address them) and the crucial information that is needed in any given impact assessment.
21/02/2024
Green belt
In this series of Planning Ahead, we focus on the Green Belt. Over three episodes, Nicola Insley and Josh Risso-Gill discuss the purpose of the Green Belt, the controls on development within these areas and provide details of what developers can achieve with Green Belt developments.
21/02/2024
Use Classes
In this series of Planning Ahead, we focus on Use Classes. Over three episodes, Nicola Insley and Mark McMurray provides an overview of Use Classes in England post-2020 and the current Use Classes & Permitted Development Rights in Scotland & England.
21/02/2024
Heritage and conservation
In this series of Planning Ahead, we address Heritage & Conservation within the Planning System. In particular, Nicola Insley and Josh Risso-Gill discuss the regulatory restrictions placed on listed buildings and conservation areas, amending listed building statuses and what is involved when seeking planning permission where listed buildings are impacted. 
21/02/2024
Changing planning permissions
In this series of Planning Ahead, we look at amending Planning Permissions. In particular, Nicola Insley looks at how you might amend a permission and is joined in the final episode by Charles Banner KC to discuss how the recent Hillside judgement has changed case law on this topic.