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Resolving international disputes - Coggle Diagram
Resolving international disputes
Avoiding disputes and ADFR
Avoiding business disputes
Long term relationships with clients = Trust
Disputes can threaten the trust between clients
Cultural attitudes toward disputes
USA = win or lose
Asia = amicable settlement
Different times of negotiations for different countries and cultures
ADR
Arbitration
Advantages
Rules of the arbitrating organization
Procedural advantage
Arbitrator may be chosen
Cost effective
Permits the resolution by 3rd party
Right to appeal is limited
Disadvantages
Relaxed procedural rules
Limit rights to approach court
Discovery is limited
Selection of arbitrator
Losing party has limited right to appeal
No precedential value
Still expensive
More formal resulting in binding award which can be enforced in court of law
If parties agree on arbitration they cannot withdraw from process
Private = no public records or negative publicity
Enforcement of arbitration
New York Convention (1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards)
www.newyorkcovention.org
"Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute." (What is Arbitration?, 2021)
Mediation
Voluntary, nonbinding, conciliation process
Final decision lays with parties
Non public record of mediation or negative publicity
Parties reserve the right to switch to binding arbitration or litigation
"Mediation is a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person who assists them in reaching a settlement." (What Is Mediation And How Does It Work? - FindLaw, 2016)
"Any method of resolving disputes without litigation" (Esmaili, 2017)
Some are formal and some informal
Conflict of laws
Application to contracts
Place of contract performance
Location of the subject matter
Place where the contract was negotiated
Domicile, residence, nationality, place of incorporation, and place of business of the parties
Place of contracting
Commercial disputes with nations
Sovereign immunity = protect foreign governments from suit when acting as political entities
Exception = foreign government operates businesses with intention to make profit, they may be sued in court as a corporation
Law clause
Clauses in which parties stipulate the country or jurisdiction whose law will apply in interpreting the contract or enforcing its terms
Court may not enforce where enforcement is unreasonable or invalid fraud and overreaching
Enforcement of foreign judgement
Application to torts/delicts
Place where conduct causing injury occurred
Domicile, residence, nationality, place of incorporation, and place of business of the parties
Place where injury occurred
Place where the relationship between the parties is centred
Mechanics of law
Jurisdiction
Service of process
Courts can only obtain jurisdiction by proper service process
Defendant must have knowledge of proceedings
In Personam
Jurisdiction over a person
Based upon a notion of ''fairness''
Many other countries have similar concepts
Literally, "against the person." In personam refers to courts' power to adjudicate matters directed against a party, as distinguished from in-rem proceedings over disputed property. (In Personam, 2021)
EU community
General rule = jurisdiction determined by the domicile of defendant
Internet age
Elayaan v Sol Media (2008 case)
"Managing transborder online spaces poses systemic difficulties for the existing international system; existing mechanisms for legal interoperability often fall short in diffusing tension and resolving conflict. Three such tools being employed at present are:" (Fehlinger and Fehlinger, 2016)
Bilateral agreements
Informal interactions between public and private actors across borders.
Multilateral efforts
China
Non resident defendant must have a meaningful connection to China
Venue = geographical location of a court of competent jurisdiction
Forum
Discretionary power by the court
Union Carbide Gas Plant disaster at Bhopal
Forum selection clause = provision in a contract that fixes in advance jurisdiction in which disputes will be arbitrated/litigated
"A court of justice where disputes are heard and decided; a judicial tribune that hears and decides disputes; a place of jurisdiction where remedies afforded by the law are pursued." (forum, 2021)
Procedural law
Discovery of evidence
Trail by jury
Role of the presiding officer
Issue of damages
Right to appeal
Substansive law
Avoid difference = choice of law clause
"Law which governs the original rights and obligations of individuals. Substantive law may derive from the common law, statutes, or a constitution. For example, a claim to recover for breach of contract or negligence or fraud would be a common law substantive right." (Substantive law, 2021)
Litigation
A case is brought before a court of law by the parties involved in the resolution