Parties who bring a commercial dispute to arbitration are rarely arguing about the law alone. They are arguing about a business that did not perform as expected, a contract that meant different things to different people, and decisions taken under pressure, often with imperfect information and a board waiting for an answer. The legal analysis is indispensable, but on its own it rarely explains why a transaction unravelled or why two experienced counterparties read the same clause so differently.
A tribunal member who has sat on the other side of those decisions — negotiating the deal, integrating the acquisition, reporting to a board on a delayed project — reads the record differently. That perspective does not replace legal analysis; it sharpens it. It changes which questions get asked of a witness, which documents are treated as central rather than peripheral, and how much weight is given to what was actually said in a meeting room against what was later written down for the file.
That range of experience matters because commercial disputes rarely arrive in a single shape. A construction delay claim, a technology contract that failed to deliver, and a real estate joint venture that broke down all turn on different facts, but they share a common requirement: a decision-maker who can follow the commercial reasoning as closely as the legal one.
Reading the commercial record
Correspondence, board papers and project reports tell a story that is only partly written down. Commercial organisations do not always minute their true reasoning, and the most consequential decisions are sometimes made in a short conversation rather than a formal paper. Understanding how organisations actually make decisions — who is consulted, what gets escalated, what gets quietly absorbed at project level — helps a tribunal ask better questions of witnesses and weigh documents in their proper context rather than at face value.
- What was the commercial objective when the contract was signed, and did it survive contact with reality?
- Where did the risk genuinely sit, and who priced it — the party who accepted it, or the party who should have flagged it?
- Which decisions were taken at board level, on what information, and which were left to project teams to manage alone?
These are not substitutes for the applicable law or the terms of the contract. They are the lens through which that law and those terms are properly understood, particularly in disputes where the written record is incomplete or was never designed to be read by a tribunal years later.
Good judgement in a dispute begins with understanding the business the dispute came from.
Ayesha Sultan
Proportion and pace
Commercial parties value certainty and proportion more than most arbitration practice acknowledges. Procedural choices — the scope of document production, the length of hearings, the number and use of experts — should reflect what is genuinely at stake in the dispute, not simply what the rules or the parties’ advisers make available. A construction dispute over a delayed handover and a shareholder dispute over control of a business call for very different procedural instincts, even where the amounts in issue are similar.
Proportion also has a commercial cost dimension that is easy to lose sight of once a dispute is under way. Every additional round of document production, every additional expert report, is time and cost that a business could otherwise be spending on the problem the dispute is actually about. A tribunal that has run a P&L understands that calculus instinctively, and can use case management to keep a process moving without sacrificing either party’s right to be properly heard.
Where mediation fits
Not every dispute needs an award. Where the commercial relationship still matters — a long-standing supply arrangement, a joint venture that both sides want to preserve, a construction contract with further phases still to come — a well-timed mediation can settle in weeks what years of pleadings cannot. Knowing when to suggest that path, and when a dispute genuinely needs a determination, is part of the same commercial judgement that shapes how a case is managed once it is under way.
The aim, in either forum, is always the same: a process the parties trust because it was proportionate and well run, and an outcome that holds because it was reasoned from the commercial record, not despite it.
