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Resolving International Commercial Disputes, Litigation, Litigation in the…
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Litigation
Venue for dispute resolution: Considerations include forum non conveniens; forum shopping (Create certainty in advance to avoid forum shopping)
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Litigation in the Courts; Leave it to chance or choose appropriate governing law & jurisdiction for dispute resolution (choice of law clause in contracts is key)
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Be careful of role of judges in Civil Law v/s Common Law Jurisdictions. In the former, judges are more activist and may independently investigate and take active role in discovering the truth. In common law, judges are more impartial arbiters who don't enter the ring. The parties drive the truth discovery process using established rules of procedure and law of evidence
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Written contract: Best to plan for worst & have solid contract that caters for dispute resolution in event of differences
Forum selection clause: Fix in advance the jurisdiction in which disputes will be arbitrated or resolved
Enforcement of Foreign Judgment: Can an award or a judgment issued in a foreign jurisdiction be implemented in losing party's primary country
The New York Convention: Prescribes that an arbitral award made in 1 country ought to be enforced by courts of another country if both countries are signatories to the convention
Conflict of laws: Courts generally apply the law in force in their jurisdictions to the cases before them
Conflict of laws rules: they determine which country's laws apply to a case and how to reconcile differences between conflicting laws
Determines whether a court has jurisdiction, the rights and liabilities of parties, and how to enforce a judgment or monetary award
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