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
- Permits the resolution by third party
- Arbitrutor may be chosen
Rules of the arbitrating organization
- Procedural advantages
- Right to appeal is limited
- 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
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
- 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
- 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
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