Evolution of dispute resolution clauses and mechanisms in the international business contracts of China’s enterprises—a forward look

The impacts of the Coronavirus disease otherwise known as the Covid-19 pandemic on the human race cannot be overemphasised. The outbreak of the Covid-19 pandemic has not only led to a paradigm shift from the old order to a new norm but also increased the deployment of Information and Communication Technology (ICT) to almost all spheres of human endeavour, including the administration of justice and Alternative Dispute Resolution (ADR) mechanisms. Most of the measures adopted by stakeholders to fight the scourge otherwise referred to as Covid-19, protocols such as social distancing, restriction of movements, restriction of physical gatherings, travel bans and total lockdown among others, stall dispute resolution proceedings thereby affecting access to justice. Hence, Online Dispute Resolution (ODR) was adopted and applied in many jurisdictions to complement, strengthen and serve as an alternative to the conventional litigation and ADR mechanisms during the Covid-19 pandemic. Although ODR existed before the outbreak of the Covid-19 pandemic as a dispute resolution mechanism, it was not as pronounced and widely utilised as it has been during and after the Covid-19 pandemic in Nigeria. This article adopts the doctrinal methodology and the qualitative approach to examine the significance and benefits of ADR and ODR mechanisms in the resolution of disputes, the effects of the Covid-19 pandemic on the world order and the administration of justice and dispute resolution mechanisms in Nigeria as well as the legal and technological responses to it. The article finds that prior to the outbreak of the Covid-19 pandemic, the existing legal framework for dispute resolution in Nigeria did not make any clear and express provisions for the use of ODR, and argues that the outbreak of the Covid-19 pandemic and advancement in ICT necessitated the application of ODR to complement and serve as an alternative to ADR mechanisms and litigation. The article concludes by suggesting legal and policy reforms for the effective application and operation of ODR in Nigeria.

[T]he student of law and the student of politics … purport to be looking at the same world from the vantage point of important disciplines. It seems unfortunate, indeed destructive, that they should not, at the least, hear each other. (Henkin 1979: 4) Only about one out of every two agreements in the COIL sample has any dispute resolution provision whatsoever. This empirical observation begs for an explanation, and which half needs explaining depends on where one is sitting. The standard IR realist perspective tells us that the dispute resolution provisions in those agreements that have them are simply cheap talk – just like the entire agreements. As Mearsheimer (1994: 7) argues, institutions “have minimal influence on state behavior.” A variant of this view is that international law does not change behavior because states enter into only those agreements that already align with their interests (Downs, Rocke, and Barsoom 1996). Consequently, it is irrelevant whether international agreements contain dispute resolution mechanisms. So the puzzle is why states bother putting such provisions in half of their agreements. From many IL perspectives, the puzzle is why only half of the agreements have these provisions. Helfer and Slaughter (1997: 283), for instance, regard international tribunals as an integral part of “a global community of law.” Brunnee and Toope (2011: 308), coming from a constructivist perspective, emphasize not only that a perception of legitimacy and legality must exist, but that “the obligatory effect of international law must be generated and maintained through practices that sustain legality over time.” Based on the premise from the legalization literature that “courts and tribunals represent a key dimension of legalization” (Keohane, Moravcsik, and Slaughter 2000: 457), one could straightforwardly conclude that the existence and usage of dispute resolution mechanisms impart a more law-like character to international agreements, thereby enhancing their legitimacy and effectiveness. Thus, we would expect to see the inclusion of dispute resolution mechanisms in most, if not all, international agreements. Indeed, Henkin's quote about the two very different vantage points of IR and IL is aptly illustrated by the disagreement over which half needs explaining: the half of the COIL sample that contains dispute resolution provisions or the half that does not.

An often-overlooked feature of international climate change agreements is their dispute resolution provisions. An effective dispute resolution framework is essential for holding States to account and ensuring compliance with treaty obligations. However, many of the dispute resolution mechanisms in international climate change agreements were never brought into existence. These include arbitration, conciliation and non-compliance procedures. This article analyses the dispute resolution mechanisms of the United Nations Framework Convention on Climate Change (1992) (‘UNFCCC’), the Kyoto Protocol (1997), and the Paris Agreement (2015) with a view to establishing which are missing, which have been successful in keeping States in check, and which should inform future amendments or treaties. Notably, a non-compliance procedure was never introduced under the UNFCCC, a successful one came into existence under the Kyoto Protocol, and a watered-down version is being discussed under the Paris Agreement. Further, although the treaties refer to an arbitration annex and a conciliation annex, none of these ever materialized. The article compares and contrasts the various procedures and their different successes, including through the use of case-studies, and makes a number of recommendations for future amendments or treaties.

The typical governing law and dispute resolution provisions in oil and gas contracts in Nigeria is examined as well as the usual forum for the resolution of disputes, the applicability of governing law and jurisdiction clauses as well as the judicial attitude in respect thereof. It is observed that under Nigerian law, parties to a contract, including oil and gas contracts, are generally free to agree their dispute resolution mechanisms. With a few exceptions, such as oil and gas contracts which involve the Federal Government of Nigeria, the attitude of Nigerian courts to the choice of dispute resolution mechanism by contracting parties is to generally enforce such mutual understanding; including local dispute resolution mechanisms and international commercial arbitration. The chapter further examines the current legal state of governing law and dispute resolution clauses in oil and gas contracts in Nigeria, identifies the problems with the current legal regime and proffers recommendations on the way forward.

If disputes are not resolved promptly, they tend to become prolonged and escalated, creating a more complicated and less manageable scenario. Therefore, in this study, we formulated a mechanism for dispute resolution in the Iranian construction industry based on alternative dispute resolution methods. The formulated mechanism could aid disputing parties in the construction industry to settle their disputes more effectively and enhance dispute resolution methods in construction standard forms. To achieve this goal, we collected qualitative data using semi-structured interviews with 30 experts who were selected via purposive sampling method. We used MAXQDA software to manage and organise complete interview transcripts and facilitate the qualitative data analysis process. The proposed mechanism and guidance were finally validated using the survey questionnaire. Negotiation has equal potential for dispute resolution with different sources, and it is recommended as the first step in dispute resolution with any source. According to the results, we recommend a three-step resolution mechanism as follows: negotiation, a method based on sources of disputes and a hybrid method of adjudication and arbitration (Adj-Arb), as the appropriate mechanism for dispute resolution in the Iranian construction industry. Replacing arbitration with Adj-Arb in construction standard forms will have satisfactory results in resolving construction disputes and reply to growing criticism that arbitration is becoming more like litigation.

ARTICLES RESOLUTION OF CIVIL DISPUTES IN CHINA Vai lo Lo* In the late 1970s, China launched both economic and legal reforms, intending to introduce market mechanisms, open its door to foreign investors, and maintain social order based on le- gal norms. Accordingly, in the past twenty years, voluminous literature has been published on the Chinese legal system, dis- cussing its basic ingredients and noting discrepancies between theory and practice. 1 The topic of dispute resolution, in particu- lar, has received much attention. Numerous books and articles have been written about the resolution of commercial disputes, 2 especially on disputes between Chinese and foreign parties. With respect to civil conflicts between and among Chinese citi- or in- zens, literature has concentrated on the use of extralegal formal means, notably the various types of mediation. J.D., Ph.D.; Visiting Scholar, Harvard Law School, 1996-97. Some materials for this article were collected during my research residence at Harvard Law School. I would like to thank the East Asian Legal Studies Program at Harvard for facilitat- ing my research there. In addition, I am grateful to Daniel H. Foote and Kazuo Sugeno for reviewing an earlier draft of this article. With the aforementioned said, the responsibility of this article remains with me. 1. Over the years, articles on various issues of the Chinese legal system have often noted its lack of enforcement, especially due to local protectionism. See, e.g., Luming Chen, Some Reflections on International Arbitration in China, J. INT'L ARB., June 1996, at 121, 154-55. See, e.g., SHENG CHANG WANG, RESOLVING DISPUTES IN THE PRC: A (1996); Freder- ick Brown & Catherine A. Rogers, The Role of Arbitration in Resolving Transna- tional Disputes: A Survey of Trends in the People's Republic of China, 15 BERKELEY J. INT'L L. 329 (1997); Guiguo Wang, The Unification of the Dispute Resolution Sys- tem in China: Cultural, Economic and Legal Contributions, J. INT'L ARB., June 1996, PRACTICAL GUIDE TO ARBITRATION AND CONCILIATION IN CHINA at 5. 3. See, e.g., Donald C. Clarke, Dispute Resolution in China, 5 J. CHINESE L. 245 (1991); Hualing Fu, Understanding People's Mediation in Post-Mao China, 6 J. CHINESE L. 211 (1992); Eric J. Glassman, The Function of Mediation in China: Ex-

A study of individual public legal mechanisms for alternative dispute resolution was carried out. The content of the concept of alternative dispute resolution is revealed, a conclusion is formulated about the need to develop public legal mechanisms for al-ternative dispute resolution as the obligation of the state to ensure adequate protection of rights and legitimate interests in the context of these mechanisms. The content and features of individual public mechanisms for resolving disputes are revealed using the example of adjudication, dispute resolution by the state ombudsman, as well as courts of aksakals and councils of biys. The conclusion is made about the admissibility of the reception of foreign models of public legal mechanisms for alternative dispute resolution through the prism of the established practice of dispute resolution and the use of alternative methods of dispute res-olution, as well as, taking into account ethnic and cultural aspects, the compliance of public legal mechanisms for alternative dis-pute resolution with the values of society and the presence of potential the demand for such procedures among citizens.

Dispute resolution mechanisms in the project finance context are a means of enforcing the allocation of risksamong a project’s many participants. Swift, flexible, final, and enforceabledispute resolution mechanisms allow a project’s intended risk allocations to be maintained. This chapter identifies various dispute resolution mechanisms available to project participants. Much of the chapter is devoted to exploring the advantages and disadvantages of two dispute resolution regimes—litigation and international arbitration—including looking at enforcement. It considers how investment treaties provide additional protection against political risk factors faced by cross-border projects and describes typical dispute resolution fora(such as ICSID)for investor–state disputes. The chapter also provides a ‘toolkit’ for drafting dispute resolution provisions designed to achieve participants’ goals.

Any international commercial agreement has the potential to be the subject of a dispute. In resolving international commercial disputes, parties to a contract are at liberty to choose any dispute resolution mechanism that best serves and meets their commercial interests. Generally, parties to an international commercial contract may resort to courtroom litigation or choose an alternative dispute resolution (ADR) mechanism as a method of resolving their transnational disputes. Underlying almost every international commercial contract, therefore, is a very primary question about where, by whom and how the parties prefer their disputes to be litigated. The response to this question depends on whether parties prefer traditional courtroom litigation, or an ADR mechanism. In most instances, countries put in place dispute resolution regimes that seek to afford contracting parties the liberty to submit their disputes to a foreign forum or an arbitral tribunal for legal redress and/or a remedy. However, while the efficacy of resolving international disputes through arbitration has garnered immense international and domestic support, the submission of disputes by parties to a foreign forum through a forum selection agreement is regarded with much ambivalence in most countries. This article assesses the efficacy of forum selection agreements in Commonwealth Africa. It appraises the judicial approach of courts in Commonwealth African countries relative to the essence and effect of forum selection agreements. This article argues and calls for a higher degree of judicial commitment to the juridical choices of private individuals who are party to an international commercial contract, especially with regard to forum selection agreements.

The cross-border commercial relationship between China and Malaysia has continued to grow over the years, with China being Malaysia’s largest trading and business partner and a major source of foreign direct investment. However, the relationship has not been without issues and challenges within the realm of cross-border business, trade and commercial formation of contracts and agreements and its implementation between both contracting parties. Holistic dispute resolution mechanisms are therefore crucial towards harmonising compliance in cross-border commercial relations between China and Malaysia. Alternative dispute resolution (ADR) mechanisms such as negotiation, mediation, arbitration, online dispute resolution, and expert determination can be used to overcome contractual issues and legal comprehension challenges such as the language barrier, cultural differences, in view of differing legal systems within historical and contemporary legal norms and developments. These mechanisms can provide parties with a cost-effective, efficient, and flexible means of resolving conflicts while preserving long-term cross-border business inter-relationships between two unique jurisdictions comprising China and Malaysia. Alternative dispute resolution mechanisms can strengthen business, trade, and commercial engagements at many levels-both public and private ventures- and thus considerably enhance cross-border compliance, and foster a more stable ease of doing business environment. Alternative dispute resolution mechanisms can facilitate harmonious compliance in cross-border commercial relations between China and Malaysia. The use of these mechanisms could overcome commercial and business disputes and uphold bilateral business integrity and build long -term commercial interests in the long run. By adopting ADR mechanisms, China and Malaysia can strengthen their trade and business ties and foster a more stable and holistic business environment at both ASEAN and global environment.

The rapid proliferation of e-commerce has revolutionized consumer transactions and economic growth in India. This paper delves into the pivotal role of legal consumer protection systems in fostering digital economic growth within the Indian e-commerce landscape, utilizing the Web Performance Monitoring (WPM) method as a foundational framework. The surge in online transactions has necessitated robust mechanisms to safeguard consumers' rights and in still trust in digital marketplaces. The study begins by elucidating the multifaceted challenges faced by Indian consumers in e-commerce transactions, ranging from deceptive advertising practices and counterfeit products to privacy breaches and unfair contract terms. Subsequently, it highlights the indispensable role of effective legal frameworks in addressing these challenges and facilitating seamless digital economic growth. The Web Performance Monitoring (WPM) method is introduced as an innovative approach to assess and enhance the efficacy of consumer protection systems in the digital realm. By analysing real-time data on website performance, transaction security, and dispute resolution mechanisms, the WPM method enables policymakers and stakeholders to identify gaps, optimize processes, and ensure a favourable environment for both consumers and businesses. Drawing on empirical research and case studies, this paper demonstrates the tangible impact of robust consumer protection measures on boosting consumer confidence, encouraging cross-border transactions, and nurturing a conducive ecosystem for digital economic expansion. Furthermore, it emphasizes the need for continuous adaptation and evolution of legal frameworks to keep pace with the dynamic nature of e-commerce. this study underscores the imperative of establishing and fortifying Enhancing consumer protection mechanisms within the realm of e-commerce has the potential to drive digital economic advancement in India. The integration of the Web Performance Monitoring method offers a strategic pathway to continually enhance consumer safeguards, foster trust, and drive sustainable progress in the evolving landscape of online commerce. The alternatives are Self-Regulation by E-Commerce Platforms (A1), Consumer Ombudsman System (A2), Statutory Warranty Requirements (A3), Online Dispute Resolution (ODR) Mechanism (A4), Mandatory Product Liability Insurance (A5), Transparent Return and Refund Policies (A6), Cross-Border Consumer Protection Cooperation (A7) and Digital Signature Authentication (A8). The evaluation parameters are Effectiveness of Dispute Resolution (C1), Consumer Trust and Confidence (C2), Reduction in Fraudulent Transactions (C3), Implementation Cost (C4), Legal Complexity (C5), and Adaptability to Emerging Technologies (C6). The Legal Consumer Protection Systemsresult of Digital Signature Authentication is got first rank and Cross-Border Consumer Protection Cooperation is got lowest rank.

Conflict Aftermath: Dispute Resolution and Financial Performance in Franchising

Generally, encountering conflicts/disputes in Supply Chain (value chain/network) Management (SCM) are unavoidable/inevitable owing to the contractual complexities and empirical eventualities (including incidental contingencies) and their efficient resolution through Alternative Dispute Resolution (ADR) mechanism (viz, Arbitration, Mediation, Conciliation, and Negotiation) in India is ubiquitous across all the Industries/Sectors. The alternative dispute resolution (ADR) methods and mechanism (viz, Arbitration, Mediation, Conciliation, and Negotiation) are always preferred to conventional Court-Litigation in business world owing to the impregnated propitious proposition with the ADR techniques. However, arbitration and mediation are the most preferred ADR techniques for supply chain dispute resolution not only in India but also in the World. In India, the Arbitration and Conciliation Act, 1996 (including amendments in 2015, 2019, and 2021) has been enacted to entrust necessary governing framework for dispute resolution through Arbitration and Conciliation mechanism or techniques of ADR across the business landscape including Supply Chain.
 This study primarily endeavours to elucidate the fundamental framework of ADR methods and mechanism efficacy vis-à-vis the empirical framework of Supply Chain (value chain/network) dispute resolution in India.

The trend in managing construction disputes is to design the most appropriate dispute resolution (DR) mechanism to be incorporated into the contract, thus avoiding disputes or quickly resolving them when they do arise. In addition to traditional arbitration, many new, alternative dispute resolution (ADR) mechanisms have been developed. Most construction contracts have either one of the DR mechanisms, or a combination of them in the form of a multi-tiered DR mechanism, incorporated into their contracts, particularly for large international construction projects. Such development has been acknowledged as the "disputology" in all construction activities. For disputes in international construction projects, there are more than just rights and interests of the parties to be considered. It is proposed that previous studies on pattern of disputes relating to "interests-rights" could be extended to consider other factors including politics, law and cultural compatibility in international construction projects.

The author discusses the new Agreement on Internal Trade, a multilateral trade agreement to which the federal government and all the provincial governments in Canada are parties. The Agreement can also extend to municipal governments and any qualifying 'persons' in certain circumstances. The object of the Agreement is to remove barriers to the free movement of persons, goods, services and investment within Canada. This article concentrates on the dispute resolution provisions of the Agreement The article is organized into three parts: the main characteristics of these provisions, how they operate for different entities and an assessment of the provisions. The Agreement prescribes alternative dispute resolution in an effort to avoid the length and cost of traditional court settlements. It has dispute resolution provisions in two places: for each industry in its respective sector chapter and for general application in chapter 17. While the provincial and federal governments may use the dispute resolution provisions directly as needed, non-parties to the Agreement who wish to make use of the provisions may do so only if a government with which they have a "substantial connection" initiates proceedings on their behalf, or after passing a screening process. The article reviews each step of the process that must be made in order to resolve disputes under the Agreement, both for government-to-government and person-to-government disputes. The article ends with an assessment of the dispute resolution provisions and some suggested improvements to them that may have improved and streamlined the provisions, especially for person-to-government disputes.