Please enable JavaScript.
Coggle requires JavaScript to display documents.
Resolution of Commercial Disputes - Coggle Diagram
Resolution of Commercial Disputes
1
Alternative dispute resolution
Mediation
Voluntary, nonbinding, conciliation process
Final decision to settle rests with the disputing parties
Impartial third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques.
Private
No public court records
Reserve all rights to resort to binding arbitration or litigation
Arbitration
Define:
A more formalized process resulting in a binding award that the courts of law in many countries will enforce
disputing parties agree to appoint an impartial arbitrator based on his expertise and reputation to decide a commercial dispute by means of a final and binding award.
Advantages
Less biased as it permit the resolution by third neutral party
Choose arbitrator
Right to appeal is limited
Use of rules of the arbitrating organisation
Cost effective -compared to litigation
Procedural advantages
Disadvantages
Limit rights to approach court
Relaxed procedural rules
Discovery is limited
Limited experience in the selection of
an arbitrator by parties
Losing party has limited rights to appeal
No precedential value to an arbitration decision
Still expensive
Private no public records you can avoid negative publicity
Once parties have agreed, they cannot withdraw
Arbitration clauses
Requires a dispute to be submitted to arbitration
Doing so removes much of the uncertainty in the event of a breach of contract or other dispute
3
Conflict of laws
Choice of clause
Are contract provisions that stipulate the country or jurisdiction whose laws will apply in interpreting the contract or enforcing its terms
As long as there is a reasonable relationship between the transactions and the jurisdiction chosen, the choice of law selection will be upheld
They are often used in conjunction with the forum selection agreement
Restatement of conflict of laws
Contracts- Factors considered-
the place of the contract
the place where the contract
was negotiated
the place where the contract
will be performed
the location of the subject
matter of the contract
the domicile, residence
nationality, place of
incorporation and place of
business of the parties
Torts: Factors considered
the place where injury occurred
the place where the conduct casing the injury occurred
the domicile, residence, nationality, place of incorporation and place of business of the parties
the place where the relationship between the parties is centered
Define
the rules by which courts determine which courts determine jurisdiction's laws apply to a case and how to reconcile differences between laws
Enforcement of foreign judgement
If there is a bilateral treaty between the two countries, foreign judgements may be recognised and enforced in another jurisdiction
Commercial disputes with nations
Sovereign Immunity
Its doctrine states that the courts of one country cannot hear cases brought against the government of another country and that the courts cannot involve themselves in the affairs of a foreign country
Commercial activity exception:
foreign government can be sued when they enter the commercial fields engaging in business profit
Abstention doctrines
Comity:
refers to the willingness of one court or department of government to respect the rules or decisions of another or grant it some privilege or favor
Act of state
Is a principle of domestic law that prohibits the courts of one country from inquiring into validity of legislative or executive acts of another country
Political question
requires the court to consider six different factors before dismissing a lawsuit on political question
2
Litigation
Jurisdiction
Define:
The power of court to hear and enforce decision of a case
Different meanings:
Territorial Jurisdiction
-the power of criminal courts to hear cases involving crimes committed within their
territory
.
In rem jurisdiction
refers to a court’s power over property within its geographical boundaries
Subject matter jurisdiction
refers to the court’s authority to hear a certain type of legal matter, such as torts or delict cases or breach of contract.
In Personam Jurisdiction
Is the court’s power over a certain
individual or corporation
The basic idea of In Personam Jurisdiction is that, unless that person has some connection that country, then one should not be hauled
into a court in some distant place
It is not limited to people physically present in the court’s territory
but broader to allow jurisdiction over people who are not present within the court’s geographical territory, but who, for reasons of justice and fairness, should be held to answer a complaint there
Jurisdiction in the European Union
Cases between parties of two or more European Union Countries is determined by the EU Council Regulation 1215/2012.
The domicile of the defendant determines jurisdiction
For corporations they consider where they are incorporated, where they have their primary
administrative offices, or where they have their principal place of business.
Jurisdiction in China.
For Chinese courts to exercise jurisdiction over non-resident defendants who are merely present in China, the defend must have a meaningful connection to China which provides sufficient ground warranting the exercise of the court’s power
Jurisdiction in the Internet age.
The principle of
minimum contacts
is now adapting to the rise of the Internet age.
Obtaining jurisdiction by service of process
Any judgment that might be taken will not be enforceable without proper service.
It will be a problem when attempting to enforce judgment internationally
Forum non conveniens
The legal doctrine of forum non conveniens refers to the discretionary power of the court to refuse to hear a case even though jurisdiction and venue are otherwise proper, because a court in another jurisdiction or location would be more convenient
and justice would be better served
According to this doctrine, whenever a case could be properly heard in more than one jurisdiction, it should be heard in the jurisdiction that is more convenient and has the closer connection to the cause of action that led to the case
Forum shopping:
it may occur in order to avoid resolution of a dispute in a country where judicial system suffers from a perceived lack of integrity
It may also be encouraged by provisions affecting the compensation of attorneys
The availability property that may be readily attached may lead some litigants to select specific forums
Define:
is a case that is brought before a court of law that’s suitable empowered (which means it has the jurisdiction to hear the case) by the parties involved for resolution
Venue
Is the geographical location of a court of competent jurisdiction where a case can be heard
Forum selection clause
Is a provision in a contract that fixes in advance the jurisdiction in which any disputes will be arbitrated or litigated
In the event of a breach, it provides certainty because parties know where and how a dispute will be resolved
It get rid of the last minute attempt by lawyers to go forum shopping by filling suits in jurisdictions that offer the best law for their cases
Cultural attitudes towards disputes
Cultural factors will influence a parties' attitude toward a dispute