Litigation or Arbitration? Choosing the Right Forum for a Cross-Border Commercial Dispute

Where a dispute is heard shapes its cost, its speed and whether the result can be enforced abroad.

This article compares litigation and arbitration and the questions clients most often ask when choosing between them.

The key points

The right forum depends on your counterparty, your contract and where the other side’s assets are located. These factors are best weighed when drafting the contract, or as soon as a dispute begins.

• Enforcement: arbitral awards are enforceable in most countries under the New York Convention, while court judgments rely on more limited treaties and local rules
• Confidentiality: arbitration is usually private, while court hearings and judgments are generally public
• Neutrality: arbitration avoids either party’s home courts and lets you choose decision-makers with relevant expertise
• Cost and finality: arbitration fees can be higher, but limited appeal rights often mean a faster final result
• Urgent relief and third parties: courts can act quickly and bind non-parties in ways an arbitral tribunal cannot
• Your existing clause: check what your contract already says, as it may decide the question for you

What to do next

Choosing a forum is easiest at the drafting stage, but parties can often agree on a different route after a dispute arises. Talk to us to review your dispute resolution clause or to assess your options before positions harden.