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Resolution of commercial disputes, lady of justice - Coggle Diagram
Resolution of commercial disputes
Alternative dispute resolution
Mediation
Definition
Voluntary and non-binding conciliation process
Impartial mediator assists with solutions
Private, no public court records
Parties reserve legal rights
Litigation
Arbitration
Arbitration
Definition
Formalized process
Binding awards enforceable by courts of law
Popular in international business
Impartial expert arbitrator assists with resolution
Advantages
Private, no public records or negative publicity
Arbitrator may be chosen
Permits resolution by a third neutral party
Rules of the arbitrating organisation
Procedural advantages
Cost effective
Right to appeal is limited
Disadvantages
Losing party has limited right to appeal
Still expensive
Discovery is limited
Relaxed procedural rules
Limit rights to approach court
Selection of arbitrator
No precedential venue
Arbitration bodies
Organisations worldwide providing arbitral services
International Centre for the Settlement of Investment Disputes
Permanent Court of Arbitration at The Hague
Enforcement of arbitration awards
Most courts of nations enforce arbitral rewards
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral awards
Arbitration clauses
Included in contracts
Requires disputes be submitted for Arbitration
Litigation
Definition
Final alternative for dispute resolution
Can be in front of jury or different in civil law countries
Jurisdiction
In Personam Jurisdiction
Definition
Courts power over certain individual or corporation
Jurisdiction obtained through serving summons
Defendant must have knowledge of proceedings
Requirements
Based upon a notion of “fairness”
Jurisdiction in the EU
General rule: jurisdiction determined by domicile of defendant
Definition
Power of a court to hear and decide a case
Knows as a competent court
Types
In rem
Courts power over property within geographical boundaries
Subject matter
Authority to hear certain type of legal matter
Territorial
Power of a Court to hear and decide a case is said to be a “competent” court
Jurisdiction in China
Nonresident defendant must have a meaningful connection to China
Venue
Forum non conveniens
Discretionary power of a court to refuse to hear a case
Definition
Geographical location of a court of competent jurisdiction
Forum shopping
Attempt to find favourable laws for case
Forum selection clauses
provision in a contract that fixes in advance the jurisdiction in which any disputes will be arbitrated or litigated
Conflict of Laws
Definition
Rules by which courts determine which jurisdiction’s law applies to a particular case
The restatement of conflict of laws
Definition
Contracts
Place where contract was negotiated
Place of contract performance
Location of the subject matter
Residence of the businesses of the parties
Place of contracting
Choice of law Clauses
Clauses in which parties stipulate the country or jurisdiction whose law will apply in interpreting the contract or enforcing its terms
Enforcement of foreign judgements
Winning party can obtain judgment for damages or other award
Commercial disputes with nations
Sovereign immunity
Protects foreign governments from suit when they are acting as political entities
Abstention doctrines
Act of state
Domestic law
Prohibits courts of one country from enquiring into valitity of legislature of another country
Political question doctrine
Provides factors for grounds of disnissal of political cases
Comity
Willingness of one court to accept the judgements of another
