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Resolving International Commercial Disputes - Coggle Diagram

- - - - Alternative Dispute Resolution
        
        Offers faster , cheaper and more
        efficient alternative to resolving international commercial disputes
        than litigation
        
        Parties MUST voluntary submit to
        the resolution process
        
        Mediation- Voluntary, nonbinding, conciliation process
        
        Parties agree on an impartial mediator
        
        Final decision to settle rests with the parties
        
        Private - no public records or negative publicity
        
        Parties reserve rights to resort to binding arbitration or litigation
        
        Arbitration - More formalized process resulting in a binding award that
        the courts of law in many countries will enforce
        
        Parties agree on arbitration, but once they do, they may not withdraw
        
        Frequently used in International Business
        
        Private - no public records or negative publicity
        
        Arbitration: Advantages
        “levels the playing field”
        
        Permits the resolution by a third “neutral” party/country
        
        Arbitrator may be chosen
        
        Rules of the arbitrating organisation
        
        Procedural advantages
        
        Cost effective
        
        Right to appeal is limited
        
        Arbitration: Disadvantages
        
        Still expensive
        
        Losing party has limited right to appeal
        
        Discovery is limited
        
        Relaxed procedural rules
        
        Selection of arbitrator
        
        No precedential value
        
        Limit rights to approach court
        
        Arbitration clauses
        Many contracts contain arbitration clauses
        Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of [insert state in which parties agree to arbitrate] or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees.
        
        Enforcement of arbitration awards
  - - - Substantive law
        Avoid differences: 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.
      - Procedural law ( process that must follow)
        
        role of the presiding officer
        
        discovery of evidence
        
        trial by jury
        
        Issue of damages
        
        Right to appeal
        
        Procedural law is the set of rules by which courts in the United States decide the outcomes of all criminal, civil, and administrative cases. Substantive law describes how people are expected to behave according to accepted social norms.
      - Jurisdiction - Power of a court to hear and decide a case
        
        Territorial: power of a Court to hear and decide 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
        torts or contracts
        
        Requirement for In Personam
        Jurisdiction -
        
        Based upon a notion of
        “fairness”
        
        Many other countries have
        similar concept
        
        In Personam Jurisdiction -
        A court with jurisdiction over a particular location may exercise in personam jursidiction over a person who resides, maintains connections, or is served notice of legal proceedings in that location. It may also exercise jurisdiction over a person who consents to be subject to it.
        Jurisdiction over the person
        
        Jurisdiction in China - Nonresident defendant must have a meaningful
        connection to China
        
        Jurisdiction in the Internet Age Internet & Jurisdiction is the global multistakeholder policy network addressing the tension between the cross-border Internet and national jurisdictions. It facilitates a global policy process to enable transnational cooperation and preserve the global character of the Internet.
        
        Jurisdiction in the European Community- General rule: jurisdiction determined by domicile of
        defendant
        
        Obtaining Jurisdiction by Service of
        Process-
        
        Courts can only obtain jurisdiction by proper service of process
        
        Defendant must have knowledge of proceedings
        
        Forum Non Conveniens - Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case. This dismissal does not prevent a plaintiff from re-filing his or her case in the more appropriate forum.
        
        Forum Shopping - Forum shopping refers to the practice of choosing the court or jurisdiction that has the most favorable rules or laws for the position being advocated. A party can forum shop when more than one court has jurisdiction over the dispute, choosing the court that gives it an advantage over the opposing party.
        
        Forum Selection Clauses - A forum selection clause is a provision in a contract that fixes in advance the jurisdiction in
        which any disputes will be arbitrated or litigated
      - Venue: geographical location of a court of competent
        jurisdiction
  - - - Conflict of Laws - Application to Torts/Delicts. Factors:
        (1) place where injury occurred;
        (2) place where conduct causing injury occurred
        (3) domicile, residence, nationality, place of incorporation, and
        place of business of the parties; and
        (4) place where the relationship between the parties is centered.
        
        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
        
        In some cases a court may not
        enforce where“enforcement would
        be unreasonable and unjust,” or
        “invalid for fraud and overreaching”
        
        Enforcement of Foreign Judgments - In order to be enforceable, the foreign judgment must be final and the court of first instance must not be able to alter it in any way. The fact that a foreign judgment is subject to appeal does not affect this requirement. 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
        
        Exception: When foreign governments operate businesses with an
        intention to make a profit, they may be sued in court as a corporation