Dispute Resolution in the Cloud

1. Riders on the Storm:
Dispute Resolution in the Cloud
Andrew Tibber
Senior Associate
IP & Technology Team
Burges Salmon LLP

2. Key Areas
Limitation/exclusion of liability
Liquidated damages
Limitation periods
Indemnities
Governing law
Jurisdiction
Choice of dispute resolution
Riders on the Storm:
Dispute Resolution in the Cloud

3. Limiting/Fixing Liability
Enforceability
- UCTA
Types of loss covered:
- Direct loss
- Indirect loss
Extent of limitation
Restrictions on limitation periods
Liquidated damages v penalty
Riders on the Storm:
Dispute Resolution in the Cloud

4. Indemnities
A promise to be responsible for another’s loss
Back-to-back warranties
Mitigation
Customer’s indemnities to supplier
- Use of service
Supplier’s indemnities to customer
- IPR
Riders on the Storm:
Dispute Resolution in the Cloud

5. Governing Law and Jurisdiction
Law and jurisdiction are separate considerations
Express provisions: convenience v enforcement
No express choice of law:
- Rome I Convention
- Service provider’s habitual residence
No express choice of jurisdiction:
- Brussels Regulation
- Provider can be sued in any EU Member
State where it provides services to customers
Riders on the Storm:
Dispute Resolution in the Cloud

6. Dispute Resolution Clauses
Familiarity
Enforceability
Speed
Cost
Confidentiality or PR value?
Ongoing business relationship?
Formal or flexible?
Evaluative or non-evaluative?
Riders on the Storm:
Dispute Resolution in the Cloud

7. Methods of dispute resolution
Negotiation
Consensual/non-evaluative
Mediation
Expert Determination
Arbitration Adversarial/evaluative
Litigation
Med-Arb/Arb-Med Hybrid
Riders on the Storm:
Dispute Resolution in the Cloud

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Dispute Resolution in the Cloud