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Resolving International Business Disputes, Conflict of Laws - Coggle…
Resolving International Business Disputes
Avoiding Disputes
Long term business relationships
Built on trust
Most Profitable
Disputes threaten trust
Good legal councel
Alternative Dispute Resolution
Arbitration
Disadvantages
Relaxed procedural rules
Limit rights to approach court
Limited Discovery
Selection of arbitrator
Losing party limited appeal
No precedential value
Still Expensive
Courts recognise and enforce awards
Advantages
Rules of the arbitrating organisation
Procedural advantages
Arbitrator may be chosen
Cost effective
Permits resolution by third party
Right to appeal limited
Privacy, not public
Many contracts contain
arbitration clauses
Mediation
Disadvantages
Parties can still opt for litigation
Litigation
Differences in Legal Systems
Procedural Rules
Trial by jury
Issue of damages
Discovery of evidence
Rights to appeal
Role of judge
Substantive Law
Choice of law clause
Stipulate country or jurisdiction
Must be reasonable and just
Not fraud or overreaching
Jurisdiction?
In rem
Subject matter
Territorial
In Personam Jurisdiction
EU - determined by defendant domicile
China - defendant meaningful connection
Service of Process
Forum Non Conveniens
Forum selection clause
Venue of court?
Not binding
Parties can still opt for arbitration
Impartial Mediator
Advantages
Privacy, not public
Alternative to litigation
Voluntary on both parties
Cheaper and Faster
Cultural attitudes towards disputes
Differences in negotiation
Conflict of Laws
Contracts - Factors
Place of contract performance
Location of subject matter
Place of contract negotiation
Domicile of parties
Place of contracting
Torts/Delicts - Factors
Place where conduct occurred
Domicile of parties
Place of injury
Place of relationship
Commercial disputes with Nations
Sovereign immunity, except
with profit intention
Law closest to relationship
transaction applied
Enforcement of judgements