Commercial Dispute Resolution Research Articles

To Sue or Not to Sue: How Afghan Merchants Strategically Choose to Use or Avoid Courts

AbstractThis article explores how and why Afghan merchants choose to use courts or informal dispute resolution methods. It goes beyond the common corruption and inefficiency arguments, which maintain that Afghans do not use courts because they are corrupt and inefficient. It leverages rich, original data on variation of dispute resolution practices across provinces and types of disputes to gain insights into Afghan merchants’ dispute resolution decisions. In so doing, I reveal a more complex picture of commercial dispute resolution in Afghanistan. In this article, I demonstrate that Afghan merchants do choose courts when courts enforce the parties’ expectations and courts’ judgments are necessary and effective. Moreover, while Afghan merchants do prefer informal dispute resolution methods, they do so because informal methods hold important advantages over courts in the context of Afghanistan where the formal property rights system is a failure, and the business climate is highly volatile.

International Commercial Courts: Similarities and Disparities

Among the leading jurisdictions, there is an increasing realization that something has to be done to arrest the alarming decline in litigation before the courts. State-funded courts, too, have to innovate and adapt if they wish to remain relevant players in transnational commercial dispute resolution. And so we will see the rise of international commercial courts. (V. K. Rajah, W(h)ither Adversarial Commercial Dispute Resolution, 33(1) Arbitration International 17, 26 (2017).)

'One-Stop' Commercial Dispute Resolution Services: Implications for International Investment Law

Many newly-created international commercial courts are supporting integrated commercial dispute resolution services, which blur lines between litigation, arbitration, and mediation services. Such “one-stop” commercial dispute resolution services will affect international arbitration generally and investment arbitration specifically. This chapter examines the likely impact of integrated international dispute resolution services on the investment arbitration regime in three respects: institutionalization, transparency, and enforcement. The chapter reaches the following conclusions. Regarding institutionalization, integrated dispute resolution services likely will contribute to the building momentum for greater institutionalization within the investment arbitration regime. Regarding transparency, integrated dispute resolution services likely will give rise to additional transparency gains within the regime by placing even greater attention on the need for coherent development of law, which requires public access to decision-making. Regarding enforcement, integrated dispute resolution services likely will narrow the existing enforceability gap between arbitral awards, on the one hand, and court judgments and mediated settlement agreements, on the other. A narrower enforceability gap would reduce the significance of one of the key advantages of international arbitration: an unmatched global enforcement regime. The diminished significance of that advantage likely would place additional pressure on the investment arbitration regime to address key vulnerabilities, notably recurrent perceptions of incoherent jurisprudence and arbitrator conflicts of interest.

The Emergence of International Commercial Courts in India: A Narrative for Ease of Doing Business?

The liberal globalised order has brought increased focus on the regulation of international commerce, and especially dispute resolution. Enforcement of contracts has been a concern largely owing to the insufficiencies of the legal systems, especially relating to the institutional structure, and it holds true for India as well. The commercial courts mechanism – international and domestic – with innovative features aimed at providing expedited justice is witnessing much traction. India, similar to many other jurisdictions, legislated in favour of specialized dispute resolution mechanisms for commercial disputes that could help improve the procedures for enforcement of contracts. This research attempts to critique the comparable strengths and the reform spaces within the Indian legislation on commercial courts. It parses the status of commercial dispute resolution in India especially in the context of cross-border contracts and critiques India’s attempt to have specialised courts to address commercial dispute resolution.

The Singapore International Commercial Court: The Future of Litigation?

The Singapore International Commercial Court (‘SICC’) was launched on 5 January 2015, at the Opening of Legal Year held at the Singapore Supreme Court. What prompted the creation of SICC? How is the SICC model of litigation different from litigation in the Singapore High Court? What is the SICC’s track record and what does it tell us about its future? This article seeks to answer these questions at greater depth than existing literature. Importantly, it examines these questions from the angle of reimagining access of justice for litigants embroiled in international commercial disputes. It argues that the SICC’s enduring contribution to improving access to justice is that it helps to change our frame of reference for international commercial litigation. Hybridisation, internationalisation, and party autonomy, the underpinning values of the SICC, are likely to be the values of the future of dispute resolution. International commercial dispute resolution frameworks – typically litigation frameworks – that unduly emphasise national boundaries and formalities need not and should not be the norm. Crucially, the SICC co-opts a refreshing public-private perspective to the resolution of international commercial disputes. It illuminates on the public interest element of the resolution of such disputes which have for some time fallen into the domain of international commercial arbitration; at the same time, it introduces greater scope for self-determination in international commercial litigation.

Análisis de algunos aspectos del juicio oral mercantil a tres años de su entrada en vigor en nuestra Entidad

Breve análisis de ciertos aspectos de la oralidad en materia mercantil derivada de la reforma al Código de Comercio al que se le adiciona el TÍTULO ESPECIAL denominado "DEL JUICIO ORAL MERCANTIL"(Artículos 1390 BIS y del 1390 BIS-1 al 1390 BIS-50) preceptos que estructuran esta modalidad en la resolución de ciertas controversias mercantiles, el cual entró en vigor al año siguiente de su publicación, en el DOF (Diario Oficial de la Federación) el día 27 de enero de 2011

The Role of Mediation in International Commercial Disputes: Reflections on Some Technological, Ethical and Educational Challenges

The purpose of this piece is to reflect on the role currently played by mediation in the resolution of international commercial disputes. This objective is both broad and ambitious and the chapter benefits from the fact that this book contains over a dozen contributions from prestigious authors in the mediation sector who adroitly address a broad range of aspects of international commercial mediation. The chapter’s main focus is consequently the outlining and discussing of a specific series of issues that aim to complement the analysis developed by the other contributors in this edited volume. Section II therefore explores the new meaning that some scholars have attached to the widely used acronym ADR (alternative dispute resolution). Considering mediation an important part of the ‘appropriate dispute resolution’ mechanisms available to commercial disputants suggests that a new light is shining through this important sector and the principles that it embraces, such as access to justice. This central idea is developed in Section III, which addresses various highly topical issues in the framework of commercial mediation: the dilemma of compulsory mediation in non-family contexts; the impact of developments in information and communication technology on the mediation milieu; the role of ethics in the contemporary mediation world, and the structure and main objectives of training schemes in international commercial mediation. Section IV concludes the discussion and leads on to the thematic studies of international commercial mediation.

Reimagining the Framework for Resolving Intra-African Commercial Disputes in the Context of the African Continental Free Trade Area Agreement

AbstractThis article examines the effectiveness of the framework for the resolution of intra-African cross-border commercial disputes, arising from the projected increase in intra-African trade in goods, services, and investments under the African Continental Free Trade Area. It examines the peculiar nature of intra-African trade and of the participating entities to provide the context to discuss the three major processes adopted in commercial dispute resolution (litigation, mediation, and arbitration) in Africa. It then argues for the promotion of arbitration as the dispute resolution process of choice for such disputes. It reimagined the framework for arbitration at the continental level and made two proposals targeted at the greater efficiency of the process: the designation of Regional Arbitration Centres across the African Union's eight recognized Regional Economic Communities, to administer such references; and the establishment of an African Commercial Court as a one-stop court for the enforcement or annulment of the final award.

Current Issues in International Commercial Mediation: Short Note on the Nature of Agreement Resulting from Mediation in the Light of the Singapore Convention

This paper deals with the present debate in the context of the current mediation scene within the scope of international commerce. Recently we have witnessed a number of initiatives aimed at improving and increasing the use of mediation. Various prominent organizations, traditionally providing the background for international arbitration adopted mediation rules reflecting the growing demand for mediation services. In EU, the Directive on certain aspects of mediation in civil and commercial matters was adopted and various subsequent steps to increase the use of cross-border mediation were taken. International commercial disputes often tend to be high-value cases with a considerable level of complexity and therefore more time and cost consuming compared with domestic commercial disputes. Despite the fact that arbitration remains indisputably the most preferred mean of international commercial dispute resolution, it also faces a strong criticism. It´s said that international commercial arbitration became too costly, slow and too formalized. Parties to the complex commercial disputes therefore look for new dispute resolution mechanisms that would be easier, faster and less expensive. It would seem that nothing prevents mediation from taking the place of the most popular method of resolving international commercial disputes and therefore becoming a successor of arbitration. However, serious doubts exist whether mediation can serve as an adequate substitute for arbitration, in particular within the scope of international commerce. One of the most common complaints is that mediation lacks the international legislative framework, such as international arbitration may benefit from. This view is based on the claim, that parties to the cross-border commercial conflicts would find mediation more appealing if the settlements resulting from mediation were subject to legal regime providing for direct enforceability. This paper further discusses this issue with particular focus on the nature of agreement resulting from mediation in the light of the proposal of the new international legal instrument prepared by UNCITRAL Working Group II, i.e. the Singapore Convention. It is argued that by granting the settlement agreements, that fall within the scope of this new legal instrument, a specific legal status, behavioral pattern of the parties involved in the international commercial disputes may change dramatically.

Causes of Delay in the Resolution of Commercial Disputes Via Litigation: Arbitration as a Way out withn Ohada Laws

Causes of Delay in the Resolution of Commercial Disputes Via Litigation: Arbitration as a Way out withn Ohada Laws

Arbitrating Harmony: Med-Arb and the Confluence of Culture and Rule of Law in the Resolution of International Commercial Disputes in China

Culture can profoundly affect a dispute resolution process. For indeed, far from merely a function of practical and procedural efficiency contemplated by disputing parties, the choice of a dispute resolution mechanism-whether mediation, arbitration or litigation- within the forum of a certain society is strongly influenced by the peculiarities of tradition, culture, and legal evolution of that society. Such is the case in China. A heightened awareness of the theoretical and practical issues found in cross-cultural negotiations and arbitrations has taken hold among legal practitioners and the business elite, as the worldwide community increasingly interacts through commercial globalization and economic integration, and diverse societies at variegated levels of legal development confront each other with commercial disputes. Especially in China, disputing parties from different cultures now face a critical balancing act, weighing the positives and negatives when deciding between mediation or arbitration. Of course, within the context of cross-cultural commercial dispute resolution, selecting a particular mechanism to resolve a dispute need not be an either-or choice. A blended approach (i.e., combining mediation and arbitration into one distinct process with two phases) can be a viable option for parties, depending on whether the lex arbitri or the institutional arbitration regime allows for such a blending. Allowing this blending to occur (and truly benefiting from it) will depend, inter alia, on the nuances of tradition, culture, and legal evolution.

China and International Commercial Dispute Resolution, edited by Qiao Liu, Wenhua Shan and Xiang Ren

China and International Commercial Dispute Resolution, edited by Qiao Liu, Wenhua Shan and Xiang Ren

Enforcement Of International Mediated Settlement Agreements In Asia: A Path Towards Convergence

In 2014, the United Nations Commission on International Trade Law (‘UNCITRAL’) first considered a proposal for the development of a multilateral convention on the enforceability of international commercial settlement agreements reached through conciliation (defined to include mediation). The goal of this project was to encourage international mediation in the same way that the New York Convention facilitated the growth of arbitration. The work of UNCITRAL Working Group II has resulted in two instruments – the Singapore Convention on Mediation; and Model Law on International Commercial Mediation and International Settlement Agreements Resulting from Mediation. In Asia, where continued growth of cross-border trade is expected, the potential for these UNICTRAL instruments to facilitate the resolution of cross-border commercial disputes and support economic growth is immense. With a focus on jurisdictions such as China, India, Hong Kong and Singapore, this article discusses the convention and amended model law, and examines how far down Asia is on the path towards convergence in the enforcement of international mediated settlement agreements.

Arbitration and Other Alternative Dispute Resolution for Commercial Dispute (Reviewed from the Strengths of ADR and Decision of Arbitration)

Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award . This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.

Development of Non-Litigation Civil Dispute Settlement Model Based on Madurese Local Wisdom to Reduce Cases Accumulation in Court

Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award. This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.

국제 상사분쟁의 새로운 경향 : 중국, 싱가포르, 미국의 Med-Arb(조정-중재) 하이브리드의 출현과 함의

국제 상사분쟁의 새로운 경향 : 중국, 싱가포르, 미국의 Med-Arb(조정-중재) 하이브리드의 출현과 함의

The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution

New legal hubs (NLHs) are “one stop shops” for cross-border commercial dispute resolution, in financial centers, promoted as an official policy by nondemocratic or hybrid (i.e., democratic and authoritarian) states. NLHs address the problems of the legitimacy deficit of host states and also insufficient economic growth. They do so by optimizing conflict of law rules, namely choice of forum and efficiency of procedure, attracting international parties to the hub venue. Further, they suggest a novel heuristic in the study of transnational law, particularly during a period of geo-political and ideological flux. This article is based on empirical fieldwork over a period of two years in six NLHs in four countries across “Inter-Asia,” including in Hong Kong, China, Singapore, Dubai, and Kazakhstan. It analyses legal hubs at two levels: their impact on host states and interhub connections as a form of transnational ordering. This article finds that, first, legal hubs are engines of doctrinal, procedural, and technological experimentation, but they have had limited impact on the reform of the wider jurisdictions within which they are embedded. Second, through relationships of competition and complementarity, legal hubs function to enhance normative settlement. However, many of the innovations (e.g., intrahub cross-institutional mechanisms between courts and arbitration institutions and interhub soft law such as memoranda of understanding) are untested, vulnerable to state politics, or even unlawful. Consequently, NLHs demonstrate the potential and fragility of “rule of law” in nondemocratic states that promote globalization against trends in the West. The article begins with an introduction that defines NLHs, identifies their significance as jurisdictional carve-outs to otherwise weak legal systems of host states, and proposes an anthropology of legal hubs. Part I sets the analysis of NLHs against the backdrop of a partially deglobalizing Euro-American liberal legal order and a globalizing Inter-Asian one. Part II describes the methodology of “para-ethnography.” Part III provides a theory of NLHs. Part IV builds on this theory to generate a continuum of NLHs. Part V assesses how NLHs and their host states affect each other, including hubs’ positive spillover effects and host state pushback. Part VI examines the possibilities for interhub ordering.

"One-Stop" Dispute Resolution on the Belt and Road: Toward an International Commercial Court With Chinese Characteristics

On July 1, 2018, China’s Supreme People’s Court published the “Provisions on Several Issues regarding the Establishment of International Commercial Courts.” The Provisions followed on the heels of a January announcement from the Central Leading Group for Comprehensively Deepening Reforms alluding to plans to establish a dispute settlement mechanism dedicated to China’s Belt and Road Initiative. The Provisions confirmed that what the press had swiftly branded the “Belt and Road Court” (BRC) will comprise three international commercial courts. Regardless of analysts’ discipline or affiliation, the response to the initial proposal, and now to the framework laid out in the Provisions, has been predictably binary, reflecting a longstanding division in interpretations of China’s commercial dispute resolution policies.One branch, call it the sociological school, explains China’s policies with reference to the country’s history and culture. It contends that a direct line may be drawn from the Chinese people’s traditional aversion to litigation to their government’s preference for informal and private mechanisms for dispute resolution. With reference to the BRC, the causal narrative this school presents is one of continuity, contending that to understand the BRC, the basic explanatory trajectory must proceed from China outward to the international arena. An alternative branch, call it the political-economy school, argues that China’s policies toward international commercial dispute resolution respond to the same goals and imperatives as any other state. China’s policies are viewed as a self-interested response to factors such as commercial flows, security considerations, and development goals. Insofar as such matters are subject to constant flux, China’s dispute resolution policies are understood to be commensurately fluid. Here, the basic explanatory trajectory proceeds from the international arena inward into China.As with all binaries, there is a middle way—an approach that interprets China’s commercial dispute resolution policies generally, and the newly established BRC in particular, as a product of continuity as well as change, influenced as much by internal dynamics as external imperatives. This Article adopts this middle way in order to identify and assess the principal tensions that have confronted, and will continue to challenge, the designers of what will amount to an international commercial court with Chinese characteristics.

Governance from Below? Lessons from Transnational Commercial Dispute Resolution

Governance from Below? Lessons from Transnational Commercial Dispute Resolution

Commercial Dispute Resolution: Has Arbitration Transformed Nigeria’s Legal Landscape?

The adoption of arbitration in the light of its well established attributes promotes confidence levels in the general businesses environment, enhances institutional trust, whilst also developing practical compromise resolution mechanisms. However, Nigeria, a developing economy has not matched policy intent with commercial realities, particularly in terms of broad based integration and utilization of arbitral tools. This trend is not sustainable in the light of the renewed efforts to promote enhanced justice delivery; lower administrative costs and the urgent need to optimize the capabilities of the judicial arm of government. The paper assessed specific arbitral provisions of selected, State High Court Civil Procedures Rules, and on this basis critiqued the arbitral visibility and incorporation relative to established legal processes. Amongst other salient issues, a robust application of arbitration is recommended especially in view of the peculiarities of Nigeria’s legal processes, judicial institutions, evolving political and social-economic indicators.