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Unit 6: Resolution of commercial disputes (mind map) - Coggle Diagram
Unit 6: Resolution of commercial disputes (mind map)
2.) Arbitration
More formalized
Cannot withdraw once decided
Third "neutral' party permitted to resolve dispute
Arbitrator chosen by parties - arbitrator bodies worldwide
Arbitration awards recognized by most nations
Advantages:
Limited and faster pretrial discovery
Less expensive
Private, not publicly available
Limited right to appeal
Procedural advantages
Disadvantages
Losing party -> limited right to appeal
Discovery = limited
Cannot be relied on for future references
Arbitration clauses might limit right to initiate litigation
No precedential value
Arbitration clauses with all details in case of dispute for example location, rules, right to appeal or not ect.
1.) Mediation
Third party mediator chosen by parties
Voluntarily, non-binding
Mediator gives solutions to help solve the problem/dispute.
Private, not publicly recorded
Parties = final decision
Legal rights to consider arbitration or litigation
Alternative Dispute Resolution = to help solve disputes in faster and cheaper manner.
3.) Litigation
In court; judge
Formal
Costly and timely
Judge = impartial arbitrator of fairness and procedure
Choice of law = control over choice of substantial law or procedural law
Right to appeal = less limited
Country's legal system has an affect on litigation
Forum selection clause = control over where litigation takes place
Jurisdiction
- "Power of the court to hear and decide a case" (area)
Difference between jurisdiction vs venue (geographical location of court)
Territorial
-> court with power to hear and decide case = "competent"
In rem
-> power over property within geographical boundaries
Subject matter
-> authority to hear jurisdiction over certain types of cases
In Personam
-> the jurisdiction over a person, requires fairness
Jurisdiction of European community = determined by domicile of defendant
Jurisdiction in China = may not exercise jurisdiction over nonresident defendants
Jurisdiction in Internet Age
Obtaining jurisdiction by Service of Process = personal jurisdiction, provide proceeding information to defendant
Forum non convenience ("inconvenient forum") = discretionary power of court to hear a case
Forum Shopping = "shopping around" to find better legal deals/favorable laws for cases
Forum Selection Clause = "Provision in a contract that fixes in advance the jurisdiction in which any disputes will be arbitrated or litigated.
Eliminate last minute forum shopping by lawyers.
Often not open for negotiating
Commercial disputes with nations
Sovereign immunity -> foreign governments protected from suit when acting as political entities
Except when they operate with intention to make profit