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24 9월 2026
Insight
Global
Disputes can erode value long before they reach a courtroom. Regulatory scrutiny, class actions and public investigations can affect reputation, investor confidence, and business performance.
Legal and compliance frameworks are evolving faster than many businesses can adapt, enforcement by regulators is intensifying, and the consequences of getting it wrong are amplifying across jurisdictions simultaneously.
Globally investigations are increasingly giving rise to related litigation, including class actions. For example, a regulatory position adopted in the UK or US on vehicle emissions can effectively trigger similar claims in Australia and other markets, underscoring the global nature of litigation risk.
Leading organisations are identifying risks earlier, anticipating how disputes may emerge, and taking proactive steps to minimise disruption before issues escalate.
Where dispute risk is emerging
While the pressures vary by industry, they are particularly evident in three areas where dispute activity is accelerating:
1. Technology: innovation outpacing governance
Organisations are deploying AI and digital products faster than governance frameworks are evolving. The convergence of AI regulation, cyber security obligations, platform regulation and consumer protection requirements is creating a widening gap between innovation and risk management.
2. Energy and infrastructure: the hidden risks in major project delivery
The time pressures to deliver major projects is compressing project timelines and increasing reliance on new technologies. These conditions are creating fertile ground for cost overruns, contractor claims and potential third-party liabilities.
3. ESG: when sustainability claims become disputes
Across industries, businesses increasingly face a dual-threat environment where regulatory scrutiny and civil litigation can arise from the same sustainability claim, disclosure or governance decision.
Being first to market can be a major advantage, but if you don't properly assess and test the risks, that advantage quickly disappears and can leave you falling short of your organisation’s corporate objectives and expectations."
Ante Golem
Partner, Head of Disputes, Australia
How leading organisations stay ahead
Moving from reactive to proactive dispute management requires deliberate systems and a forward-looking mindset. The most effective organisations undertake a horizon-scanning exercise: assessing where regulation, enforcement and market expectations are heading, and identifying how the business needs to adapt to address emerging risks.
The starting point for general counsel is a clear-eyed assessment of exposure. That means understanding where the next dispute is likely to arise, where the business is most vulnerable, and which issues have the greatest potential to affect reputation or enterprise value. Looking backwards is equally important. In our experience, recurring themes in complaints, investigations, near misses and delivery failures often provide the clearest indicators of potential future investigations or disputes.
A critical but often underestimated aspect of proactive management is early engagement. Whether responding to a customer complaint, a regulator's initial inquiry or an emerging operational issue, organisations that act early have a greater ability to shape the outcome. Early engagement allows businesses to preserve evidence, maintain control of communications, protect privilege where appropriate and explore commercial resolutions before positions become entrenched. Once a matter escalates into formal proceedings, many of those opportunities narrow significantly.
Put simply, early engagement puts the organisation in a stronger position to shape outcomes rather than react to them.
Closely linked to early engagement is crisis preparedness, particularly the coordination of legal and communications strategy from the outset. Organisations in high-exposure sectors are increasingly expected to have response plans in place before an incident occurs, covering decision-making, document preparation, stakeholder communications and media engagement. The first 24 to 48 hours can significantly impact on regulatory scrutiny, public perception and stakeholder confidence, making it essential to have the right internal infrastructure already in place:
- early warning systems
- investigation protocols
- document preservation processes
- escalation mechanisms
- clear guidance around privileged communications.
Organisations that have planned and tested their response in advance are better positioned to act decisively, manage legal, commercial and reputational risk in parallel, and minimise the disruption that disputes can cause.
Managing the PR and communications strategy can be as important as managing the legal risk from day one because, if it gets out of hand, it increases the probability you'll be targeted by claimants."
James Baily
Partner
Building organisational readiness before issues arise
For general counsel and business leaders, the call to action is clear: identify where the organisation is most exposed and ensure the right systems, processes and governance are in place to respond proactively. The goal is not to predict every dispute, but to be prepared for the ones most likely to arise.
While every organisation's risk profile is different, the following checklist provides a practical starting point for building a more proactive approach to dispute management.
Know where your next dispute is likely to come from. Identify the risks that could materially affect your reputation, operations or business value, and ask yourself whether you're prepared to respond proactively, not reactively.”
Simon Chapman KC
Managing Partner, Disputes, Asia and Australia
Key contacts
James Baily
Partner, London
Simon Chapman KC
Managing Partner, Disputes, Asia and Australia, Hong Kong
Ante Golem
Partner, Head of Disputes, Australia, Perth
Kerri Ann Law
Partner, Head of Litigation, US, New York
Legal Notice
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills Kramer 2026