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RESOLVING INTERNATIONAL COMMERCIAL DISPUTES - Coggle Diagram
RESOLVING INTERNATIONAL COMMERCIAL DISPUTES
Conflict of Laws
The Restatement of the conflict of laws
Types of actions
Contracts
Factors to consider
Place of contacting
Place where the contact was negotiated
Place of contract performance
Location of the subject matter
Domicile, residence, nationality, place of incorporation and place of business of the prties
Torts
Factors to consider
Place where injury occurred
Place where conduct causing injury occurred
Domicile, residence, nationality, place of incorporation and place of business of the prties
Place where the relationship between the parties is centred
Choice of law clauses-contact provisions stipulating the country or jurisdiction whose law will apply
Used in conjunction with with a forum selection agreement
Enforcement of foreign judgements
Uniform Foreign Money Claims Act
Commercial disputes with nations
Sovereign immunity-supreme and absolute power that governs an independent state
Commercial activity exception- foreign governments can be protected from suit when they are acting as political entities
Abstension Doctrines
Comity-willingness of one court to respect rules of another
Act of state-principle of domestic law that prohibits the court of one country from enquiring into the validity of the legislative acts of another country
Political question Doctrine
Avoiding Business Disputes
Cultural Attitude towards disputes- cultural factors influence a party's attitude on settlement of disputes.
Litigation
-final alternative for resolving a dispute
Jurisdiction- the power of court to hear and decide a case
In Personam Jurisdiction- Jurisdiction over the person
Jurisdiction in the internet age-obtaining obtaining jurisdiction by service of process
Jurisdiction in the European union
Jurisdiction is determined by the domicile of the defendant
Jurisdiction in China-Chinese courts may not exercise jurisdiction over nonresident defendantss
Venue-geographical location of a court of competent jurisdiction
Forum Non Conveniens- discretionary power of a court to refuse to hear a case
Forum shopping
Forum selection clauses- fixes in advance the jurisdiction in which any disputes will be arbitrated
Alternative Dispute Resolution
Mediation- voluntary, non-binding, conciliation process
Final decision to settle rests with the parties
No public records or negative publicity
Parties agree on an impartial mediator
Parties reserve rights to resort to binding arbitration or litigation
Arbitration- more formalized process resulting in a binding award
Advantages
Permits resolution by a third party
Arbitrator may be chosen
Procedural advantages
Cost effective
Limited rights to appeal
Disadvatages
Still expensive
Dicovery is limited
Relaxed procedural rules
No precedential value
Losing party has limited right to appeal
Selection of arbitrator