LGST 219 - Class 4 Notes

LGST 219 - Class 4 Notes - Lecture 4 Sept 19 ICC...

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Lecture 4, Sept 19 ICC -International Chamber of Commerce -OR International Criminal Court NOTE: -If an institution is “international”, it will deal with ONLY international disputes (not local). - Conversely , national courts are perfectly well equipped to deal with BOTH domestic and international disputes. Arbitral panels are outside the court system. NOT set up by the national government. Relationship? -National court systems -Arbitral panels When u have arbitration problems, can you appeal to the courts for assistance?? i.e. are they completely insulated from the court? Or are there ways that courts can intervene/ interfere? 2 ways of classification (* Better way ) 1. Arbitration binding (Adjudicative type of dispute resolution) 2. Alternative dispute resolution not binding (e.g. mediation is not binding – coordination type of dispute resolution) OR Alternative dispute resolution all dispute resolutions outside of regular court systems – could include arbitration ADR - flexible - inexpensive - covered by UNCITRAL rules (arbitration and ADR rules) - **Need to watch the statue of limitations o court room doors are only open for a limited period of time o need to think in view of possible court proceedings if ADR falls through Mediation -Evaluative mediation: more assertive -Negotiations -Mini-trial (not in a court) o If afterwards, brings it to court and court affirms, the loser has to pay a penalty
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Arbitration - A lot of advantages if you make the right selection - Should be faster than court proceedings (in general, if set up right) - Good if you want to keep what is disputed secret - Good way to get around the sovereign immunity defense (party is government/ government agency) - Could save a lot of money if set up right (e.g. ICSID is rather inexpensive) **Setting up terms at initial contract is more advantageous than once dispute arises. -goodwill disappears when tension arises -difficult to come to a resolution if both parties are trying to manipulate the situation to their advantage -Setting up early might not be the most IDEAL, but it would make resolution more efficient -Worst is duplicate litigation in 2 different countries -Need to work out a concrete dispute litigation mechanism at the outset Bargaining power : in a contract, very often one party would have superior bargaining power -The superior party can usually choose choice of forum. Usually inconveniences the other party such that it gives up bringing it to court Germans seem to have the most modern court. Inexpensive, so people don't see the need to depend on arbitration, just go to court. Japan imported the German legal system. But, there’s a different business culture, and people do not like to go to court. Hypothetical situation:
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LGST 219 - Class 4 Notes - Lecture 4 Sept 19 ICC...

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