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The Resolution of Commercial disputes - Coggle Diagram
The Resolution of Commercial disputes
Alternative dispute resolution
voluntarily submit to the resolution process
Mediation
o it’s a voluntary, non-binding conciliation process
o The parties agree on an impartial mediator
o final decision actually rests with the parties
o private, so there’s no public records and therefore you can avoid any negative publicity
o the parties still reserve their right to resort to a binding arbitration or litigation should they not resolve the issue.
Arbitration
o formalised process
o parties must agree, but cannot withdraw
o private so there are no public records and you can avoid negative publicity.
o used in international business
Advantages
• it permits the resolution by a third party
• choose the arbitrator
• The rules of the arbitrating organisation are used
• many procedural advantages –
• no public knowledge of this dispute
• cost-effective
• the right to appeal is limited
Disadvantages
• still expensive
• Limited right to appeal
• Discovery is limited
• Relaxed procedural
• Limit right to approach court
• the selection of an arbitrator
• no precedential value
Disputes
• threatens the bond of trust can threaten future business opportunity
• time-consuming and costly
•physically and mentally exhausting
• friendly and amicable settlements are usually the best outcome
Contract
• negotiating and drafting business contracts is the most important
• seek good legal advice
• terms of the contract provide the basis for dispute resolution.
• always hope for the best but plan for the worst
Cultural factors
Litigation
case brought before a court of law that’s suitable empowered
• litigation is the final step in attempting to resolve a dispute
Differences in legal systems
countries have different procedural rules for litigating cases
• determine which court to approach
• Jurisdiction is the power of a court to hear and decide a case
• Personam jurisdiction -refers to the court’s power over a certain individual or corporation. No court can enter a judgment against an individual or corporate defendant unless they have such jurisdiction.
• When a defendant is not physically present, a court can obtain jurisdiction only if the party has had sufficient minimum contacts with the territory of the forum such that it is fair for the defendant.
• the Internet is leading to new jurisdictional issues.
• Whenever a case can be properly heard in the courts of more than one jurisdiction, it should be heard in the jurisdiction that will most serve justice.
Jurisdiction should not be confused with the concept of venue. Venue refers to the geographical location of a court.