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Resolution of Commercial Disputes, written into contract, written into…
Resolution of Commercial Disputes
Avoid Conflict
maintain relationships
build trust
beware cultural differences
"hope for the best; prepare for the worst"
CONTRACTS!
Alternative Dispute Resolution (ADR)
1) Mediation
private = no bad publicity
Voluntary
faster
cheaper
non-binding
reserve right to aberration / litigation
impartial mediator
2) Arbitration
formal
binding
may NOT withdraw
often used in business
:check: Pros
cross-border co-operation
neutral 3rd party makes decision
choose arbitrator
based on skill / knowledge
more cost effective
set rules
1957 New York Convention
set procedures
limited appeals
:red_cross:Cons
if lose
limited discovery
possible delays
still costly
lack transparency
Litigation
court of law
Jurisdiction
Who has power?
referred to as "competent" court
A) Territorial
criminal case
B) In Rem
property related
C) subject matter
type of legal matter
Procedural law
differences depending on country
role of judge?
process?
discovery?
damages?
number of appeals?
jury?
Substantive law
law of the case
vary wildly by counrty
choice of law clause
in Personam Jurisdiction
courts power over
people
corporations
not solely based on physical presence
case-by-case nature
is it fair?
connections to country?
burden to defendant?
presence in country?
headquarters
sales reps
businesses in country?
fairness to plaintive?
interest to state?
Forum
Non Conveniens
court refusal of a case
another forum/court is more appropriate
:red_flag: Forum shopping
Forum selection clause
Conflict of laws
reconcile conflicting laws from different jurisdictions
court/forum with closest relationship to case
Torts / Delicts
place of business?
place of injury?
place injury causing conduct?
place of relationship between parties?
contracts
place of contract?
place of negotiations?
place performance of contract?
subject's location?
place of business?
choice of law clause
written into contract
written into contract
written into contract