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resolution of commercial disputes, References: - Coggle Diagram
resolution of commercial disputes
Avoiding business disputes & alternative dispute
resolution (ADR)
friendly and amicable settlements are usually the best outcome and offer the best hope for salvaging a business relationship.
alternative dispute
resolution (ADR)
Offers faster, cheaper and more efficient alternative to resolving international commercial disputes than litigation
Parties MUST voluntary submit to
the resolution process
Arbitration
"A procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute."
More formalized process resulting in a binding award that
the courts of law in many countries will enforce.
It is private so there will be no negative publicity.
ADVANTAGES
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
DISADVANTAGES
Still expensive
Losing party has limited right to appeal
Discovery is limited
Relaxed procedural rules
Limit rights to approach court
Selection of arbitrator
No precedential value
Mediation
he intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict
Voluntary, nonbinding, conciliation process
It is private so there will be no negative publicity.
The final decision rests with the parties.
ADVANTAGES
1, Greater control. since refusal is allowed
Less expensive than Ligistation.
Offers greater privacy.
Can help preserve relationships
DISADVANTAGES
Greater control by parties.
Can possibly lead to no solution
Cost of mediation and can still possibly not end in a solution.
Privacy concerns the expectations of the aggrieved party.
Long term relationships are the best and are based on trust.
Litigation
"The actions between two opposing parties working in the interest of enforcing or defending a legal right."
DISADVANTAGES
1) Certain legislation abridges the rights of individuals and are referred to Judicial Review.
2) It results in the amendment to the constitution and leads to conflict between legislature and judiciary.
3) No scope for judicial discretion -
4) Rigidity
5) Lack of clarity
ADVANTAGES
1) Legislation is the best and most reliable source of law
2) Statutory law is rigid and applicable irrespective of the crime
3) The modern States give more importance to the legislation.
4) Legislation makes new law to the society.
5) By legislation, social control is possible
Conflict of Laws
"Refers to a difference between the laws of two or more jurisdictions with some connection to a case, such that the outcome depends on which jurisdiction's law will be used to resolve each issue in dispute."
Application to Contracts
(2) place where the contract was negotiated
(3) place of contract performance,
(4) location of the subject matter
(5) domicile, residence, nationality, place of incorporation, and place of business of the parties.
(1) place of contracting,
Application to Torts/Delicts
(3) domicile, residence, nationality, place of incorporation, and place of business of the parties
(4) place where the relationship between the parties is centered.
(2) place where conduct causing injury occurred
(1) place where injury occurred;
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”
Jurisdiction
Power of a court to hear and decide a case
References:
https://www.wipo.int/amc/en/arbitration/what-is-arb.html#:~:text=Arbitration%20is%20a%20procedure%20in,instead%20of%20going%20to%20court
.
https://www.commerce.gov/cr/reports-and-resources/eeo-mediation-guide/what-mediation#:~:text=Mediation%20involves%20the%20intervention%20of,explore%20a%20variety%20of%20solutions
.
https://thebusinessprofessor.com/en_US/criminal-civil-law/mediation-pros-cons
https://www.upcounsel.com/meaning-of-litigation-in-law#:~:text=a%20legal%20right.-,The%20meaning%20of%20litigation%20in%20law%20refers%20to%20the%20actions,judge%20determine%20the%20final%20resolution
.
https://www.law.cornell.edu/wex/conflict_of_laws#:~:text=Conflict%20of%20laws%20refers%20to,resolve%20each%20issue%20in%20dispute
.
https://www.srdlawnotes.com/2018/03/legislation-source-of-law-advantages.html
https://uj.blackboard.com/ultra/courses/_54141_1/cl/outline?legacyUrl=~2Fwebapps~2Fblackboard~2Fexecute~2Fannouncement%3Fmethod%3Dsearch%26context%3Dmybb%26course_id%3D_54141_1%26individualAnnouncementId%3D_614766_1