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Resolutions of Commercial disputes - Coggle Diagram
Resolutions of Commercial disputes
Alternative Dispute Resolution
Mediation
Voluntary, non-binding, conciliation process
Parties agree on an impartial mediator
Private: no public records or negative publicity
Arbitration
Advantages
Permits the resolution by third party
Arbitrutor may be chosen
Rules of the arbitrating organization
Procedural advantages
Right to appeal is limited
Disadvantages
Still expensive
Losing party has limited right to appeal
Discovery is limited
Relaxed procedural rules
Limited rights to approach court
Selection of arbitrator
No precedential value
*
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
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
Offers faster, cheaper and more efficient alternative to resolving international commercial disputes than litigation
Avoid Business Disputes
Long-term business relationships
most profitable
Build on Trust
Any dispute threatens the bond of trust and impacts the future business opertunities
Litigation
Definition
A case is brought before a court of law suitably empowered to hear the case, by the parties invoved for resolution
Difference in Legal Systems
Procedural law
role of the presiding offer
discovery of evidence
Trait by jury
Issue of damage
Right to appeal
Substantive law
Law of the case
Jurisdiction v Venue
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
Venue
Geographical location of a court of competent jurisdiction
Forum Non Convenience
discretionary power of a court to hear case
Conflict of Law
Choice of LAW Clauses
Clauses in which parties stipulates the country or jurisdiction whose law will apply in interpreting the contract or enforcing terms
In some cases a court mat NOT enforce where enforcement would be unreasonable and unjust, or invalid for fraud and over reaching
Application to CONTACTS: some 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: some factors
Place where 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
*
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
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