LGST 219 - Class 5 Notes

LGST 219 - Class 5 Notes - Lecture 5 Sept 21 UN Commission...

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Lecture 5, Sept 21 UN Commission on International Trade Law = UNCITRAL - does not just deal with trade law - has also drafted important rules on international arbitration (and other alternative dispute resolutions) - might substitute trade with business (broader) One important factual issue in litigation: -DAMAGES. -Turn to jury to decide how much money for damages -Submit damages to jury because it is a matter of judgment (cannot rely on judge) -American juries tend to be really generous - Juries are part of US procedural law (part of the forum, regardless of choice of law) WRT fundamental policies, even in international case, a US court can use US law Downsides of US courts - no confidentiality - US proceedings can be very expensive - Can face great delays, depending which part of the US you are in - Profoundly adversarial (makes both sides deeply antagonistic) In international business disputes, arbitration tends to be the medium of choice Voluntary arbitration is essential— both sides must agree to arbitration (unless contract was signed beforehand) BUT, you can force someone to go to court . If the other party does not turn up, he is subject to the default judgment if it is deemed that the court has personal jurisdiction. Arbitrations are final. You can’t review it. If you want to review, should not go for arbitration, but go for trial in court. However, what was said in arbitration will apply to the court case proceeding. Arbitration helps to conciliate as you can see the other side better. Courts might be too antagonistic. In an international case, much easier to enforce an arbitration award than a court one . No rules to collect award in court case. Discussion of IBM and Fujitsu (1987 Arbitration) -perfect for arbitration because technical issue -good because they wanted to continue working together amicably
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Arbitration moves cases off the ‘radar’. Does not become a precedent. Especially tricky because US uses common law. Arbitration no public policy controls (unlike judiciary in court system) - is this good for society as a whole? - Is the judiciary losing control of important areas of decision? - Esp in areas of securities (arbitrators biased towards bigger institutions?) BIT = Bilateral Investment Treaty -Arbitration might apply in international disputes if country A and B have signed a BIT and stipulated how conflicts should be resolved Why do people like the ICC? - huge background of experience. High profile, high prestige. Proved it knows how to organize and oversee international business disputes that go into arbitration - award tends to be very readily enforceable because of the ICC name - it also oversees final award with supervisors (they double-check) - disadvantage: ICC is one of the more expensive venues “arising under this contract” wording in the arbitration clause under this contract tricky wording because the arbitration clause would not hold if the contract is deemed invalid better wording… “in connection with this contract”
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LGST 219 - Class 5 Notes - Lecture 5 Sept 21 UN Commission...

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