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COMMERCIAL DISPUTE RESOLUTON - Coggle Diagram
COMMERCIAL DISPUTE RESOLUTON
ADR
(Alternative Dispute Resolution)
Offers faster ,cheaper and more efficient alternative to resolving disputes than litigation.
Parties must voluntary submit to the resolution process.
Types of ADR
Arbitration
-
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.
"Levels the playing field"
Advantages
Permits the resolution by a third "neutral" party/country.
Arbitrator may be chose.
Rules of the arbitrating organization.
Procedural advantages.
Cost effective.
Right to appeal is limited.
Disadvantages
No precedential value
Limited experience in selection of arbitrator.
Limits rights to approach court.
Relaxed procedural rules.
Still expensive
Losing party has limited right to appeal.
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.
Litigation
- A case (
called suit or lawsuit
) is brought before a court of law suitably empowered (
having the jurisdiction
) to hear the case, by the parties involved (
the litigants
) for resolution (
the judgment
).
Final step in attempting to solve a dispute.
Jurisdiction
- Power of a court to hear and decide a case.
In rem
- Power over property within its geographical boundaries.
Subject matter
- Jurisdiction over certain types of cases like torts or contracts.
Territorial
- Power of a court to hear and decide a case is said to be "competent" court.
In Personam Jurisdiction
- Jurisdiction over the person based upon a notion of "fairness".
Party must have sufficient minimum contact with the territory of the forum such as it is fair for the defendant.
Service of process Jurisdiction
Courts can only obtain jurisdiction by proper service of process.
Defendant must have knowledge of proceedings.
Forum Non Conveniens
- Discretionary power of a court hear a case.
Case should be heard in the jurisdiction that is more convenient and has the cause of action that led to the case when it can be properly heard in more than one court.
May lead to
forum shopping
(looking for laws more favorable to a case or jury more sympathetic to a side.
Forum selection clause
- A provision in a contract that fixes in advance the jurisdiction in which any disputes will be arbitrated or litigated.
DIFFERENCE IN LEGAL SYSTEMS
Procedural law
(process that must follow when presenting a case).
Role of the presiding officer
Discovery of evidence
Trial by jury
Issue of damages
Right to appeal
Substantive law
(law of the case)
Choice of law clause
-control over choice of substantive law and Procedural rules.
Conflict Of Laws
- Rules by which courts determine which jurisdiction's law applies to a particular case.
Absent a
choice of law clause
, generally the court will apply the law of the country or jurisdiction that has the closest relationship to the transaction.
Application to
contracts
. factors:
Place of contracting
*Place where the contract was negotiated
Place of contract performance
Location of the subject matter
Domicile, residence, nationality, place of incorporation and place of business of the parties.
Application to
Torts/ Delicts
. Factors:
Place where the injury occurred
Place where conduct causing injury occurred
Domicile, residence, nationality, place of incorporation, and place of business of the parties
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".
Commercial Dispute with Nations
Sovereign Immunity
: Protects foreign governments from suit when they are acting as political entities.
Exception
: When foreign governments operate business with an intention to make a profit, they may be sued in court as a corporation.
Enforcement of foreign judgements
winning party can obtain judgment for damages or other award.