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Resolving International Commercial Disputes - Coggle Diagram
Resolving International Commercial Disputes
Avoiding Business Disputes
Long- term business relationships are built on trust and are more profitable. This means that any dispute can influence future business opportunities.
Cultural Attitudes toward Disputes
Cultural factors will have an influence on a party's attitude on how to settle a dispute.
Alternative Dispute Resolution
Mediation
A voluntary and conciliation process that assists parties in reaching a solution.
Arbitration
A formalized process resulting in a binding award that courts of law in many countries will enforce
Advantages:
Neutrality
Arbitration and lawyer fees are less than similar fees in the court of law
Rules for evidence admissibility are more flexible.
the party's right to appeal is more limited
Disadvantages:
Still expensive
Limited discovery
Procedure rules are relaxed
4.Losing party has limited right to appeal
Litigation
The final alternative for resolving a dispute in a court of law.
Jurisdiction
The power of a court to hear and decide a case
Territorial: A power of a court to hear and decide if a case is said to be a "competent" court
In rem : power over property within its geographical boundaries
Subject Matter: Jurisdiction over certain types of cases like contracts
Forum Non Conveniens
Discretionary power of a court to hear a case
Forum Selection Clauses
A provision in a contract that fixes in advance the jurisdiction in which any disputes will be arbitrated or litigated
Conflict of Laws
The rules by which courts determine which jurisdiction's law applies to a particular case
Application to contracts factors;
Place of contracting
Place where the contract was negotiated
Place of contract performance
Location of subject matter
Residence, Nationality place of business
Choice of Law Clauses
Clauses in which parties have stipulated the country whose law will apply in enforcing the terms
Commercial Disputes with Nations
Sovereign Immunity: Protects foreign governments from suit when they are acting as political entities.
Exception: occurs when foreign governments operate business with an intention to make a profit, this may result in the corporation getting sued in court.
In personam Jurisdiction
Based on a notion of fairness