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Week 10: Dispute Resolution - Coggle Diagram
Week 10: Dispute Resolution
The resolution options
Negotioation / Conciliation / Mediation: "informal" dispute settlement (cheapest, quickest)
Litigation (courts) and arbitration (often more expensive) (typically longer)
Litigation
One country's court system
Possibility of bias, do you trust the integrity of the system?
Variations in rules, remedies, etc.
Variations in the quality and specialization of judges
Court systems generally overburdened (delays) (higher expenses)
Multiple jurisdictions (which countries courts?)
Enforcement limitations
A courts power is limited to its own (geographical) jurisdiction
Usually can not enforc a judgement against a foreign person / assets
Reciprocal recognition of court award is very limited (eg. foreign judgements act australia)
Foreign Judgements act 1991
Provides a regime for the registration and enforcement of foreign superior court judgements where there is "substantial reciprocity" in the enforcement of judgements between Australia and other countries
The regime currently applies to 24 countries including Singapore, Uk, HK, Korea, Japan, Italy, Germany, France and some Canadian provinces.
Does not apply to China or US
Arbitration
Non judicial method of dispute resolution - although described as quasi judicial and increasingly technical
Parties can select the procedure of arbitration (i.e. written proceedings, oral hearings, rules of evidence). Standardised under the uncitral Model Law)
Parties can select own arbitrators: Allows for expertise in tribunal.
Private and confidential unlike open court proceedings
not necessarily "cheaper". Lawyer fees, venue and arbitrator fees, but avoids delays in litigation
Removes the dispute from courts where there may be national bias and one party is likely disadvantaged due to unfamiliar procedure and system
Awards will be enforced across the world by domestic courts and will be set aside on limited grounds (new york convention 1958)
ICA in Australia
Framework for enforcement of international commercial arbitration (ICA) agreements and awards under Australia. Implements Australia's obligations under the New york convention (1958)
The framework for ICA arbitration conducted in Australia
Adopts UNCITRAL Model Law (s16 IAA)
Model law an international instrument
83 countries have incorporated it into domestic law
Under the IAA s16, the Model Law provides a procedure for the conduct of the ICA under Australian LAw unless parties opt out or select alternative
The IAA also provides the Australian courts with supervisory functions over ICA
ie. Power to award interim measures (eg. to hear challenges for removal of arbitrator, freeze assets, specific performance)
IAA also provides further opt in rules for conduct of arbitration
ie. s23C IAA disclosure of confidential information
Agreement to arbitrate
For an ICA to take place, there must be an agreement to arbitrate (in the contract or after dispute has arisen)
Agreement sets up arbitration; as minimim will specify the place (seat) of arbitration and procedure
Institutional arbitration: specialised in institution handles administration (rules, arbitrators, venue). can be expensive
Australian Centre for International Commercial Arbitration (ACICA)
Ad Hoc: not administered by institution. Parties handle everything. More flexible / tailored, may be cheaper.
Parties can chose model law as procedure for Ad Hoc ICA
In Australia, if parties do not opt out of model law or select an alternative procedure, the Model Law will apply (s16 IAA)
Agreement under Model Law
What international commercial arbitration is covered by the model law?
The model law applies to the International commercial arbitration (article 1)