Before the case: Baptiste Rigaudeau on The Neutral Voice
Baptiste Rigaudeau, partner at Lead up Avocats, was the guest of Episode 22 of The Neutral Voice, the podcast of The-Neutrals.ORG hosted by Samung Deb Barma. The episode looks at dispute avoidance and the stage of conflict that receives little attention: what happens before a disagreement becomes a formal case. It is available on YouTube and Spotify.
When a disagreement becomes a dispute
For Baptiste, the turning point is behavioural before it is legal. “A disagreement usually starts to turn into a dispute the moment the parties stop talking to solve the problem and start talking to protect a position.” The early signs are concrete: operational correspondence suddenly copied to legal or senior management, notice periods counted carefully after years of indifference, “without prejudice” appearing in routine emails, and phone calls replaced by written exchanges. In a mining concession matter between a foreign investor and a State, the operational contacts on the government side stopped answering directly well before any request for arbitration was filed.
Who is still in the room
A disagreement remains manageable as long as the people who understand the project, engineers, project managers and technical staff at the ministries, still talk to each other. Once they are replaced by lawyers or officials with no knowledge of the project, escalation has usually begun. Baptiste added two caveats. On large mining projects, some issues such as tax interpretation may require a formal process while the rest of the project runs normally. And with State entities, formal written communication is often necessary because officials and administrations can change quickly.
Acting early, and asking the hard questions
In a construction dispute in Northern Europe, early involvement in the pre-arbitral phase allowed the team to build a claim letter backed by delay and disruption analysis. “Everything was clear on paper, backed up by numbers, no hyperbole.” The parties settled. A counter-example showed the other side of early work: without access to the project sites or the people involved, the team relied on internal reports and only later discovered that some employees were close to the opposing party. The lesson is to bring in outside counsel early, able to challenge internal assumptions before a strategy is built on them.
Choosing the right forum
Before choosing between negotiation, mediation and arbitration, Baptiste recommends checking the dispute resolution clause, limitation periods and any preconditions, then assessing the economics with a financial expert who knows the sector, if need be. A strong legal position can be a poor commercial decision, especially if the other side has no assets to satisfy an award. His experience in multi-jurisdictional asset tracing and recovery shows that the hardest part is often not proving the claim but finding something to collect against.
Settlement as a design problem
Settlement is too often treated as a discount on a legal claim. Parties may value certainty, timing, confidentiality, a continued relationship, avoiding a precedent or closing before a given date. “Once you understand that, a settlement conversation stops being a tug of war and starts being a design problem.”
What clients should know before starting a case
Formal proceedings do not only resolve a dispute, they also freeze it: narratives and positions become locked in. Having practised in five jurisdictions, Baptiste sees the same pattern in common law and civil law systems. “The real decision isn’t whether to pursue your rights. It’s whether you are ready to give up the flexibility that only exists before a case starts.”
FAQ
What is dispute avoidance? The set of steps taken before formal proceedings to identify tensions early, preserve the commercial relationship and keep negotiated outcomes available.
When should outside counsel be involved? As soon as communication becomes defensive, so that the facts can be established and options assessed while settlement is still flexible.
Why does this matter in mining and infrastructure? These projects run for decades and involve States and long-term partners, so the parties must keep working together after any single dispute ends.
About Lead up
Lead up Avocats is a Paris-based boutique dedicated to international arbitration, commercial litigation and mediation. Baptiste Rigaudeau, MCIArb, is Global Vice Chair of Young Mining Professionals and co-chair of the Mining Arbitration Taskforce of the Chambre Arbitrale Internationale de Paris.