Resolutions of Commercial disputes

Alternative Dispute Resolution

Mediation

Arbitration

Advantages

Disadvantages

Offers faster, cheaper and more efficient alternative to resolving international commercial disputes than litigation

Avoid Business Disputes

Litigation

Definition

Difference in Legal Systems

Jurisdiction v Venue

Forum Non Convenience

Conflict of Law

Choice of LAW Clauses

Application to CONTACTS: some factors

Application to TORTS/DELICTS: some factors

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Long-term business relationships

Any dispute threatens the bond of trust and impacts the future business opertunities

most profitable

Build on Trust

Voluntary, non-binding, conciliation process

Parties agree on an impartial mediator

Private: no public records or negative publicity

*

More formalized process resulting in a binding award that the courts of law

Parties agree on arbitration, but once they do, they may not withdraw

Private: no public records or negative publicity

  1. Permits the resolution by third party
  1. Arbitrutor may be chosen

Rules of the arbitrating organization

  1. Procedural advantages
  1. Right to appeal is limited
  1. Still expensive
  1. Losing party has limited right to appeal
  1. Discovery is limited
  1. Relaxed procedural rules
  1. Limited rights to approach court
  1. Selection of arbitrator
  1. No precedential value

Enforcement of arbitration awards: Courts of most nations recognize and enforce them

New York Convention (1958 UN convention on the recognition and enforcement of foreign arbitral awards

A case is brought before a court of law suitably empowered to hear the case, by the parties invoved for resolution

Procedural law

Substantive law

role of the presiding offer

discovery of evidence

Trait by jury

Issue of damage

Right to appeal

Law of the case

Jurisdiction

Venue

Geographical location of a court of competent jurisdiction

Power of court to hear and decide a case

InPersonam Jurisdiction

Jurisdiction over a person.

It is based on the notion of fairness

You do not need to be present, they will decide

Jurisdiction in European community

Jurisdiction determined by domicile of defendant

Jurisdiction in Chine

Non resident defendant must have a meaningful connection to Chine

Jurisdiction in the Internet Age

discretionary power of a court to hear case

Refer to 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 of the transaction

  1. Place of contracting
  1. Place where the contract was negotiated
  1. Place of contract performance
  1. Location of the subject matter
  1. Domicile, residence, nationality, place of incorporation and place of business of the parties
  1. Place where injury occurred
  1. Place where conduct causing injury occurred
  1. Domicile, residence, nationality, place of incorporation and place of business of the parties
  1. Place where the relationship between the parties is centered

Clauses in which parties stipulates the country or jurisdiction whose law will apply in interpreting the contract or enforcing terms

Commerciap Disputes 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 used in court as a corporation

In some cases a court mat NOT enforce where enforcement would be unreasonable and unjust, or invalid for fraud and over reaching