chapter 3 - 3: Dispute Resolution in the Global Marketplace...

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Unformatted text preview: 3: Dispute Resolution in the Global Marketplace 21:50-contract is the basis of any bargain. If and when a dispute arises, the terms of the contract provide the basis for dispute resolution-Americans are notorious litigators, quickly turning to the courts to redress grievances-Asians go to great lengths to seek an amicable settlement Alternative Dispute Resolution (ADR) Usually offers a faster, cheaper and more efficient alternative to resolving international commercial disputes than litigation Requires that the parties voluntarily submit to the resolution process Mediation Voluntary, nonbinding, conciliating process Parties agree on an impartial mediator who helps them amicably reach a solution Final decision to settle rests with the parties themselves Private, no public court records Not used so much in international contracts Arbitration Non-government trial; 1 or 3 that act as the judge and the jury conducting a hearing on the facts and issue orders relative to the law Results in a binding award that will be enforced by courts of law in many countries Parties must agree to arbitrate, but once they do, they may not withdraw May permit the resolution of the case in a third neutral countryparties are generally free to choose a location that is mutually convenient Arbitrator may be chosen by the parties from a roster of impartial industry experts or distinguished lawyers, who may also be from a third country Case may be resolved using the impartial and straightforward rules of the arbitrating organization, rather than the procedures buried in the statutes or rules of the country of one of the parties Arbitration Rule Rules of arbitral tribunals that address issues such as the qualification and appointment of arbitrators, the conduct of proceedings, procedures for finding the facts and applying the law, and making of awards Advantages: Pretrial discovery is faster and more limited, resulting in less expense and delay Cheaper and faster than going to court Forum is neutral Process is private, less adversarial sit around big table Arbitration and attorney fees are far less than similar fees in a court of law Rules for evidence admissibility are more flexible Problems with Arbitration Discovery (procedure you use to learn about other partys case) is limited Rights of appeal are very limited once award is made there isnt an appeal on award; are allowed to appeal on the enforcement of the award National Arbitral Laws Most commercial nations have laws permitting arbitration and specifying the effect of an arbitral award The British Arbitration Act The Arbitration Law of the Peoples Republic of Chinaprovides that arbitrations must have 8 years prior legal experience Russian arbitration lawprovides that arbitration may be conducted in Russia in any language agreed upon by the parties These laws were patterned after the 1985 Model Law on International Commercial Arbitration of the United Nations Commission on International Trade Law (UNCITRAL)...
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This note was uploaded on 02/15/2012 for the course BLS 464 taught by Professor Humbauch during the Spring '11 term at Miami University.

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chapter 3 - 3: Dispute Resolution in the Global Marketplace...

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