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AVOIDING BUSINESS DISPUTES, A Flag 1, C Flag, Resolution, Mediation,…

- - - - METHODS OF RESOLUTION
        
        ALTERNATIVE DISPUTE RESOLUTION
        
        Usually offers a faster, cheaper and more efficient alternative to resolving international commercial disputes than Litigation. Parties voluntarily submit to the resolution process.
        
        ARBITRATION
        
        Arbitration is a more formalized process resulting in a binding award that the courts of law in many countries will enforce. The parties must agree to arbitration, and once they do, they may not withdraw. Arbitration is frequently used in international business because it “levels the playing field” since the case may be heard in a more impartial tribunal. First, arbitration may permit the resolution of the case in a third “neutral” country, rather than in the country of one of the parties.
        Secondly, the arbitrator may be chosen by the
        parties from a roster of impartial industry experts or distinguished lawyers, who may also be from a third country. Finally, the case may be resolved using the impartial and straightforward rules of the arbitrating organization, rather than the procedures buried in the statutes or rules of a court of the country of one of the parties.
        
        ARBITRATION RULES
        
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        MEDIATION
        
        Mediation is voluntary, non-binding, conciliation process. The parties agree on an impartial mediator, who helps them reach a solution amicably. The final decision to settle rests with the parties themselves. It is private and there are no public court records or glaring articles in the local press to influence local opinion about the firms. The parties reserve all legal rights to resort to binding arbitration or litigation
        
        LITIGATION
        
        Litigation in a court of law is the final alternative for resolving a dispute. 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)
        
        JURISDICTION
        
        Jurisdiction, one of the key concepts of jurisprudence, is the power of a court to hear and decide a case. A court that has jurisdiction is said to be a “competent” court. The term has different meanings depending on how it is used.
        
        Rem Jurisdiction refers to a court's power over property within its geographical boundaries
        
        Subject Matter Jurisdiction refers to the court's authority to hear a certain type of legal matter, such as tort cases or breach of contract.
        
        Territorial jurisdiction refers to the power of criminal courts to hear cases involving crimes committed within their territory.
        
        In Personam Jurisdiction
        or "jurisdiction over the person" refers to the court's power over a certain individual or corporation.
        
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        Diversity Jurisdiction refers to the Federal court's jurisdiction over cases involving a controversy between citizens of different States or between citizens of a State and of a foreign nation.
        
        JURISDICTION IN THE EUROPEAN UNION
        
        Jurisdiction in civil and commercial cases between parties domiciled in two or more European Union (EU) countries is determined by EU Council Regulation No. 1215/2012. This law was implemented in 2015 and replaced Regulation No. 44/2011 and the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. The general rule is that jurisdiction is determined by the domicile of the defendant, specifically, his or her habitual or ordinary residence. Corporations are domiciled in the Member State (i.e., member country of the EU) where they are incorporated, where they have their primary administrative offices, or where they have their principal place of business.
        
        JURISDICTION IN CHINA
        
        Chinese courts may not exercise jurisdiction over nonresident defendants who are merely present in China. Rather, the nonresident defendant must have a meaningful connection to China which provides a "sufficient ground" warranting the exercise of the court's power. The Civil Procedure Law of 1991 grants jurisdiction to Chinese courts based upon a non-resident defendant's conduct or property
        
        JURISDICTION IN THE INTERNET AGE
        
        As electronic commerce brings the world closer together, there will likely be more disputes between parties in distant countries. How will the courts fashion rules for deciding when a party must defend itself against litigation in foreign courts? Just as the meaning of "minimum contacts" adapted to the rise of interstate commerce in the United States over 70 years ago, it is now adapting to the rise of the Internet age.
        
        OBTAINING JURISDICTION BY SERVICE OF PROCESS
        
        Courts can only obtain jurisdiction by proper service of process
        
        Defendant must have knowledge of proceedings
        
        LETTER ROGATORY : A letter of request send through via diplomatic channels that results in personal service on the defendant by the courts of the country in which he/she is found
        
        VENUE
        
        Jurisdiction is often confused with the concept of venue. Venue refers to the geographical location of a court of competent jurisdiction where a case can be heard. While the courts of several different states or countries may have proper jurisdiction, the concept of venue helps decide which one of these should actually hear the case. For instance, in some civil lawsuits between citizens of different states, we know that the federal courts may have jurisdiction. But in which federal districts should the suits be tried?
        
        FORUM NON CONVENIENS
        
        The legal doctrine of forum non conveniens (mean- ing "inconvenient forum") refers to the discretionary power of a court to refuse to hear a case, even though jurisdiction and venue are otherwise proper, because a court in another jurisdiction or location would be more convenient and justice would be served better.
        
        FORUM SHOPPING
        
        It is not unusual that requests to transfer on the basis of forum non conveniens are in truth attempts by counsel to "shop around" for a better legal deal. They may be looking for laws that are more favorable to their cases or for juries that might be more sympathetic to their sides. After all, in federal lawsuits between residents of different states, such as in tort cases, the federal courts apply the laws of the states in which they sit.
        
        FORUM SELECTION CLAUSES
        
        A forum select clause is a provision in a contract that fixes in advance the jurisdiction in which any disputes will be arbitrated or litigated. It provides certainty because the parties know where and how a dispute will be resolved in the event of a breach. One of the major advantages of these clauses is that they eliminate the last-minute attempt by lawyers to go "forum shopping" by filing suits in jurisdictions that offer the best law for their cases. The last chance for forum shopping may very well be during contract negotiations.