Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INITIALLY

Why is it that managers and directors in big corporations seem to distance themselves from disputes when they become litigious? While, at best, a top level hand is firmly holding on to top level negotiations to arrive at a business solution in a corporate dispute, the hand lets go when a party to the dispute has instituted arbitral or court proceedings. Why does corporate strategy in the Nordic Countries not seem to include, at least not in practice, a discernible litigation strategy or legal policy proper? Could it be argued that a company’s brand, policy statements and declarations (such as CSR statements) really should also indicate the manner in which retained outside counsel is expected to act in the name of the corporation? It would seem that many northern European corporations allow disputes, once formally pending, to cut some of their contact to the corporate body. Normally, the aim and rationale of a dispute is—or should be—to be resolved. Why is it then that the predictability of a known corporation’s behavior is allowed to disappear in a dispute thereby making it impossible to assess the kind of arguments that the corporation will take to heart in order to maybe settle the dispute?

It will take experts in other sciences to analyze why dispute management is often so totally outsourced today, especially when foreign elements are involved. Maybe business people tend to give up control of business matters when they are being dealt with by the law on the assumption that non-lawyer contribution is no longer needed other than as requested by the legal team.