This preview has intentionally blurred parts. Sign up to view the full document

View Full Document

Unformatted Document Excerpt

Running 1 Head: ARBITRATION Arbitration Kenneth Christian Argosy University Arbitration Arbitration has, for some time, been the standard form of dispute resolution for international disputes. The increasing acceptance of arbitration is reflected in a number of traits typical of mature markets; namely, efforts to improve existing products rather than create new ones and a corresponding increase in competition between players in the market. The Supreme Court of Arbitration of the Russian Federation is the court of final instance in commercial disputes in Russia. Additionally, it supervises the work of lower courts of arbitration and gives interpretation of laws and elucidations concerning their implementations, which are compulsory for lower courts. The Russian Federation is a civil law jurisdiction with a written constitution that lays down the fundamentals of Russian state governance and its regulatory framework. However, the Russian Federation (as successor to the USSR) is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In addition, Law No. 5338-1 dated 7 July 1993 "On International Commercial Arbitration" provides for the possibility of enforcement of foreign arbitral awards in the Russian Federation. Consequently, an arbitral award obtained for instance in New York, Paris or London should be recognized and enforced by a Russian court. The enforcement is subject to the qualifications provided for in the Convention and the Arbitration Law as well as compliance with procedures established by Russian legislation. We note, however, that in practice reliance upon international treaties may meet with resistance or a lack of understanding on the part of a Russian court or other officials. The Federal Arbitration Act (FAA) "embodies a national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts." As interpreted by the Arbitration Supreme Court, the FAA creates a uniform "'body of federal substantive law'" regulating the enforceability of agreements to arbitrate that applies to all contracts involving interstate commerce in both state and federal court. Given the broad interpretation of interstate commerce adopted by the Supreme Court, the FAA will apply to most every contract. However, the FAA does not necessarily dictate the procedural rules governing how arbitration itself is conducted. Rather, the parties to a contract are free to elect whether the FAA, state law, or other rules such as those promulgated by an independent ADR provider will govern their arbitration. Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a mandatory decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. Its principal characteristics are Arbitration is consensual Arbitration can only take place if both parties have agreed to it. In the case of future disputes arising under a contract, the parties insert an arbitration clause in the significant contract. An existing dispute can be referred to arbitration by means of a submission agreement between the parties. In contrast to mediation, a party cannot separately withdraw from arbitration. The parties choose the arbitrator(s) Under the WIPO Arbitration Rules; the parties can select a sole arbitrator together. If they choose to have a three-member arbitral tribunal, each party appoints one of the arbitrators; those two persons then agree on the governing arbitrator. On the other hand, the Center can suggest potential arbitrators with relevant expertise or directly appoint members of the arbitral tribunal. The Center maintains a broad list of arbitrators ranging from seasoned dispute-resolution generalists to highly specialized practitioners and experts covering the entire legal and technical spectrum of intellectual property . Arbitration Arbitration is neutral In addition to their selection of neutrals of appropriate nationality; parties are able to choose such important elements as the applicable law, language and venue of the arbitration. This allows them to ensure that no party enjoys a home court advantage. Arbitration is a confidential procedure. The WIPO Rules specifically protect the confidentiality of the existence of the arbitration, any disclosures made during procedure, that and the award. Arbitration is most often used to settle contractual or commercial disputes. Rather than going to court or mediation, the parties can agree in the contract that Arbitration will be used to settle any disagreements. Many lawyers can, and will, differ strongly on Arbitrations merits. If the underlying agreement provides for Arbitration, one of the parties to the contract must file a request for Arbitration and pay the required fee to a group that provides Arbitration services. Often the Arbitration service will suggest an arbitrator or arbitrators to which the parties must agree. The arbitrator may be an attorney, judge, CPA, or businessperson. After the parties have defined their dispute, there will be a hearing, often in the arbitrator's office, at which the parties present evidence and witnesses in a fairly informal manner without the formal rules of evidence used in court litigation. After the evidence has been presented, the arbitrator reaches a decision and usually later sends the parties a written opinion more like an order. Arbitration is usually quicker, simpler, and cheaper than litigation, but to many there is one perceived disadvantage, no appeal. With a few narrow exceptions, like fraud, there is no way to appeal an arbitrator's decision. Like litigated judgments, and unlike mediated settlements, an Arbitration order can be enforced in court under laws that allow an Arbitration decision to be entered in the court system and then become a judgment. The prevailing party can collect on the Arbitration order using all Arbitration available legal collection methods, such as levies on property. The ability to collect an Arbitration monetary judgment through the legal system is one the main distinguishing factors between Arbitration and mediation. As stated in the contract signed by Monarch Associates and Vladir, legal and non-legal disputes will be handled in Russia. This is a disadvantage for Monarch Associates as Vladir could choose the Arbitrators from the panel maintained by the Russian Arbitration Institute . Vladir gets the home court advantage. To be fair to both the parties Monarch Associates and Vladir should have chosen a third party to settle disputes. Like for example; United Nations or The Word Bank. The United Nations Convention on the Recognition of Foreign Arbitral Awards reassures use of arbitration agreements and awards. The World Bank's International Center for the Settlement of Investment Disputes (ICSID), created in 1965 by treaty (the Washington Convention), offers to disputants' arbitration rules as well as experienced arbitrators, and the International Chamber of Commerce offers a permanent arbitration tribunal. Monarch Associates or for that matter any other business or company entering into partnership or business with any foreign entity should state in the Arbitration clause that a third arbitrator association or party to solve any legal or non-legal disputes. It would safer and fair to both the parities entering in to the contract to do so. If the panel is from a country of any one of the party member there is a chance of being favored by the panel of the same country. It is like playing a football game at home and the referees for the game are from your hometown. Monarch associates should keep on mind their mission and vision by applying proven international models for Business Excellence with respect to Safety, Environmental Arbitration Consciousness, and Quality Products and Services, the associates will lead and coach your business leadership with planning, implementing, monitoring, and improving your Workplace Safety, Environmental Stewardship, and Business Processes to levels of sustainable excellence to foreign companies. Reference List Khrenov, A. (n.d.). The european arbitration review. Retrieved from Arbitration Russian European Chamber of Commerce (n.d.). Principal Laws Governing Business Operating in Russia. Retrieved 19 November 2012 from Russian European Chamber of Commerce: Kubasek (). Legal Environment of Business [5] (VitalSource Bookshelf), Retrieved from Smerek , S. (n.d.). Preemption and the federal arbitration act. Retrieved from ... View Full Document

End of Preview

Sign up now to access the rest of the document