Cross-border Commercial Disputes Research Articles

MEDIATION – THE OFTEN-MISSED OPPORTUNITY!

Parties have the opportunity to regulate the dispute, and during mediation, an acceptable solution for the dispute resolution can be seen, which will strengthen the personal or business relationship between the parties in the future. One of the key functions of a mediator to successfully mediate business disputes is to focus on the interests of the parties and be able to separate them from the positions of the parties. International mediation is seen as the amicable process of the resolution of cross-border commercial disputes, which helps parties to preserve commercial relationships. The mediator should individually analyze every case before a mediation meeting is planned. The mediator should decide whether to start with a general joint meeting or conduct individual meetings. The above-mentioned has a great impact on future processes and results. The implementation of general mediation standards in national law is a big challenge. Standards on applying enforcement and refusal mechanisms in International business disputes are general, vague, and more evaluative. States should work on the development of national guidelines and case law regarding the evaluation process of mediation by court. Digital assets from Blockchain Technology can be inherited, and because of the specificities (different territories, internet space, and different tech companies) of currency, disputes may arise in transacting inheritance. It is debatable why the Singapore Convention should not apply to settlement agreements raised from cryptocurrency.

Transnational res judicata in international commercial disputes and potential influences for BRI dispute resolution

Res judicata plays an important role in the management of complex cross-border commercial disputes. Courts and tribunals are increasingly required to grapple with the application of res judicata on the basis of a prior determination from a different, and potentially unfamiliar, legal system. These considerations come even more alive in the context of the ambitious transnational project of the Belt & Road Initiative. This paper critically examines the Singapore Court of Appeal’s decision in Merck Sharp & Dohme Corp v Merck KgGA, which offers a cooperative vision of transnational res judicata that strikes a balance between comity and mutual trust between national legal systems, and each system’s own sovereign and constitutional responsibilities and interests. The paper also considers the potential influences of Merck’s unique transnational vision for the BRI dispute resolution ecosystem.

Research on the Reform and Development of International Commercial Arbitration in China

International commercial arbitration is the preferred way to resolve cross-border commercial disputes. Facing new situations and challenges, the government should strengthen the training of international commercial arbitration talents, actively participate in international arbitration rule-making, promote the integration of modern technology with commercial arbitration, improve the laws and regulations on international commercial arbitration, and enhance the publicity to raise the awareness of arbitration. Hence, this can establish a sound international commercial arbitration system in line with China’s national conditions and international standards to further optimize the business environment in China and better promote international economic and trade exchanges.

The ‘Arbitralization’ of Courts: The Role of International Commercial Arbitration in the Establishment and the Procedural Design of International Commercial Courts

Abstract International commercial arbitration is the most preferred dispute resolution method in cross-border commercial disputes. It has been, however, claimed that arbitration has lost its flexibility by becoming increasingly formal and by incorporating litigation practices. In academic literature, this trend has been termed the ‘judicialization’ of international commercial arbitration. This article argues that while arbitration is becoming progressively judicialized, international commercial courts evidence an opposite, less studied trend; namely, the ‘arbitralization’ of courts. Through a comparative analysis of different international commercial courts, the article explores how the competition with arbitration has prompted the establishment of these courts, and how arbitration has served as the inspiration for some of their most innovative features. The article concludes that while the incorporation of arbitration features could improve court proceedings, some of international commercial courts’ arbitration features undermine procedural justice and the role of courts as public institutions and therefore hit the limits of arbitralization.

South Africa's jurisdictional challenge with the under-development of cross-border commercial litigation: Litigation v Arbitration

Private international law is a globally established field of law however, its pre-eminence in Africa is insignificant and this has been as a result of its relevance, which according to many scholars is arguable. It follows logically therefore, that it is underdeveloped in Africa, and as this article posits, specifically in South Africa. This article advocates for the development of South African private international law by endorsing South Africa as a viable neutral jurisdiction venue for cross-border commercial disputes, in future. According to this article, this is to be achieved by the recognition of neutral jurisdiction clauses in South African courts. This can only be done by developing an effective and just system of cross-border/trans-national litigation. The proposed sound cross-border jurisdictional rules will supplement the newly established transnational arbitration regime. In order to achieve this, this research reflects an integrated comparative approach by establishing comparative perspectives mainly from the UK, USA, Brazil, Kosovo and South Africa.1 Based on its constitutional values of inalienable human rights and access to courts (justice), South Africa stands to gain immensely from incoming commercial arbitration and commercial litigation as forms of dispute resolution. This will establish the country as the preferred venue for arbitration and litigation on the African continent and beyond.

Challenges of Nigeria as a Preferable Seat of International Commercial Arbitration

Arbitration has over the years gained prominence as a preferred method for dispute resolution especially for cross-border commercial disputes. One of the reasons is that the parties want to resolve their dispute in privacy and obtain an enforceable award as soon as possible. The choice of the arbitral seat during the negotiation of any international commercial arbitration agreement is perhaps one of the most overlooked influential aspects over the course of the arbitral procedures. The importance of a wise choice of an arbitral seat generally has two aspects, one of logistical convenience and the other is of a legal effect. For reason of the crucial legal effects of the place of arbitration, the parties have to be sure that they have chosen the best suitable jurisdiction as the seat of arbitration. The article will further analyse the concept of the seat of arbitration, its role, and importance in international commercial arbitration. It will also examine by reviewing the drawbacks of Nigeria as a preferred seat of international arbitration, particularly on the arbitration legislation and the respective judicial supervision and support in effectively conducting arbitration within the jurisdiction.

Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit

Brexit raises a whole range of legal issues in multiple areas. The consequences on the EU framework for jurisdiction, recognition and enforcement of judgments are of particular interest for private parties involved in cross-border commercial agreements. This paper explores the legal basis for the jurisdiction of courts and the enforcement and recognition of judgments between the UK and EU-27 courts after Brexit. In addition, it broadly contrasts the main differences of the proposed solutions compared to the EU system. The paper argues that international conventions can provide answers to some of the questions as they set out rules for the jurisdiction, enforcement and recognition of judgments. However, there are factors that can have an impact on possible legal outcomes, such as the framework of the future deal between the UK and the EU-27, the moment of the commencement of proceedings by the parties in the transition period, or the fact that the parties did not opt for exclusive jurisdiction in their agreements. The Withdrawal Agreement provides for some clarity on which EU law provisions apply during the transition period. In addition, the EC Notices and the UK Brexit legislation provide for guidelines as to the rules applicable in and immediately after the transition period. Nevertheless, as the paper analyses, there is still a need for further clarification. Therefore, other methods of dispute resolution proposed in the article such as moving to arbitration instead of English court jurisdiction could provide legal certainty for private parties. Keywords: EU law, Brexit, art 50, withdrawal agreement, recognition and enforcement of judgements, EU civil justice and judicial cooperation, cross-border commercial disputes. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: M Kulinska, ‘Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit’ (2020) 16 CYELP 279.

The Settlement Agreement as a Means of Resolving Cross-Border Commercial Disputes in the Light of the Singapore Convention on Mediation and Russian Law

In December 2018 the United Nations adopted the Convention on International Settlement Agreements resulting from Mediation, also known as the Singapore Convention on Mediation” (the “Convention”). It applies to international settlement agreements resulting from mediation (“settlement agreements”). It establishes a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement. The Convention is open for signature since August 2019. However, many States, including Russia and the EU, have not signed the Convention. This paper analyses whether it makes sense for Russia and other States with a similar legal and economic system to take part in such international convention or to adopt legislation following the amendments to the amendments to the UNCITRAL Model Law on the International Commercial Conciliation.

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.

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.

The Singapore convention on enforcement of mediated settlement agreements (mediation): from dream to reality?

On 26th of June, 2018, at its 51th session, the UN Commission on International Trade Law (UNCITRAL) announced the completion of two important documents — a draft United Nations Convention on International Settlement Agreements Resulting from Mediation, as well as the draft amendments to the UNCITRAL Model L aw on International Commercial Conciliation (2002) that, to a large extent, repeats the provisions of the draft Convention. It is expected that after its approval by the UN General Assembly on August 1, 2019, the Convention will be open for signature and, if ratified by a significant number of States, will play an important role in increasing the attractiveness of this method of dispute settlement to the international business community, allowing it to compete with international commercial arbitration.In this regard, the article attempts to analyze the main provisions of this Convention and to assess the feasibility of accession to it of the Russian Federation, taking into account the fact that currently in Russia this method of settlement of cross-border commercial disputes is not widespread. According to the results of the analysis, the author comes to the conclusion that the adoption of this Convention will create a basis for the enforcement of international agreements reached as a result of mediation and acceptable for States with different legal, social and economic conditions, while maintaining the inherent flexibility of this method of dispute resolution. This, in turn, will reduce the likelihood of parties to cross-border commercial disputes going to court or international commercial arbitration after mediation and, accordingly, will increase the attractiveness of this method of dispute resolution for the parties.

The adaptability of international arbitration: Reforming the arbitration mechanism to provide effective remedy for business-related human rights abuses

This paper analyses the potential for international arbitration to provide effective remedy for business-related human rights abuses. Since the proliferation of international arbitration, the default arbitration mechanism as it stands has been contemplated by and large for the resolution of cross-border commercial disputes where the primary interests are efficiency and finality. However, there is evidence that human rights issues have emerged in international arbitration. Accordingly, if arbitration is to be used in such cases, the mechanism must be adapted in light of the particular issues that arise in the adjudication of human rights; the balance between transparency and confidentiality, reprisals against victims and human rights defenders, collective redress, financial assistance, the applicability of human rights standards. If proper procedures are in place to contemplate the particular interests involved in cases where the substantive claims involve human rights, the advantage of international arbitration is that it can provide direct access in a neutral forum for holding companies accountable where national jurisdictions are unavailable or difficult to access. This article begins by analysing the historical development of international arbitration so as to demonstrate a pattern of adaptability and flexibility vis-à-vis the subject matter of cross-border disputes. The article will then contemplate the potential of and concerns for international arbitration, putting forward specific recommendations for reforms of the international arbitration mechanism in cases where the substantive claims involve business-related human rights abuses.

Sociology of Arbitration: New Tools for the New Times

Arbitration as a method of addressing cross-border commercial disputes has enjoyed a remarkable, global success. The ‘phenomenal boom’ of commercial arbitration has led to a far-reaching replacement of domestic litigation by this mechanism, and to privatization of resolution of international commercial cases. This highly successful example of legal globalization, achieved – atypically – primarily by private means, is also a dynamically evolving phenomenon.The article identifies three key areas of tensions, which generate new developments in commercial arbitration. First, the tension between procedural formality and flexibility can be observed, as reflected in the well-established judicialization trend, confronted with a recent renewed interest in mediation and 'soft' hybrid procedures. Second, concurrence of global and local influences (as seen in the American and Asian ‘waves’ in arbitration) affects, inter alia, professional culture of arbitration practitioners. Finally, the tension between public and private interests and values, which influences procedural preferences and solutions, though certainly not as prominent as in investment arbitration, can be identified.As a consequence, methodological tools, used for empirical research on international commercial arbitration are revisited, so as to allow for capturing new developments in this field in a most accurate, possible manner. A highly innovative, multi-method, sequential model of research is introduced, which addresses both the static and dynamic components of the field, and is based on a triangular structure of formal institutions, social practices and cultural values. A systematic, paced combination of quantitative and qualitative methods is proposed, with an introduction of tools not used on a larger scale in the study of arbitration so far, such as ethnographic research and focus group interviews.

Jurisdiction, Enforcement and the Conflict of Laws in Cross-Border Commercial Disputes: What Are the Legal Consequences of Brexit?

This article considers the impact of Brexit on the conflict of laws rules in England and Wales in relation to jurisdiction, enforcement of judgments, choice of law and the future role of the European courts and their judgments.

Simulated arbitration on-line; training law students in a multi-jurisdictional context

This project enables law students from different countries to participate in a simulated arbitration case on-line. The objective of this innovative e-training distance learning tool is to familiarize law students with law and practice of international commercial arbitration. International arbitration is more than another way to settle cross-border commercial disputes. It is a real forum where the law governing international economic relations is progressively elaborated, applied and enforced in a constantly changing world. Law students need to get themselves acquainted with this discipline, which is particularly adapted to the modern requirements of an increasingly globalized economy. Four Universities participated in the simulated arbitral proceedings using this tool: http://mockarbitrationonline.blogspot.gr/ The case selected was related to a multinational cross-border business transaction. Instead of using fictitious states (such as Utopia or Ruritania), specific countries were selected (such as Czech Republic, Ukraine and Greece), in order for students to apply the legal rules, which are actually in force in these countries.

Lex Mercatoria: Reflections from an English Lawyer

This article looks at lex mercatoria from the point of view of the author as an English lawyer, and considers whether the lex mercatoria is relevant to cross-border contracts: and in particular whether it is relevant to international commercial arbitration. The concept of a law merchant ys not unknown in England: English courts dating back centuries have administered such a system of law. Has the medieval law merchant given way to a 'new' lex mercatoria? And if so, does it exist as a separate system of law capable of use in cross-border commercial disputes? Reference is made to the Mustill view of twenty-five years ago and to the changing attitude of the English courts: in the 1920s hostile to the lex mercatoria, but giving way by the 1970s to an acceptance of the use of the lex. That process was effectively recognised in the English Arbitration Act of 1996, which permits arbitrators — if the parties so agree — to decide a dispute 'in accordance with such other considerations as are agreed by them or determined by the tribunal.' The decisions of English courts after 1996 make it clear that, in England1 lex mercatoria can be a choice of law, but cannot be used for conflict of law purposes. Other anational systems are considered: the UNIDROIT Principles and the UN Convention on Contracts for the International Sale of Goods (CISG). Mention is also made of the Transnational Law Database. Finally, following Lord Mustill's look at the first twenty-five years of the new lex mercatoria in the late 1980s, the article refers to the views of Professor William W. Park and others some twenty-five years later. Pragmatically, is the lex mercatoria of any relevance to international commercial disputes?

American Arbitration Association-First International Dispute Resolution Center Created to Resolve Private, Cross-Border Commercial Disputes Relating to the North American Free Trade Agreement 4 Decemb

American Arbitration Association-First International Dispute Resolution Center Created to Resolve Private, Cross-Border Commercial Disputes Relating to the North American Free Trade Agreement 4 Decemb

The Internationalisation of International Arbitration, The LCIA Centenary Conference edited by Martin Hunter, Arthur Marriott, and V.V. Veeder

The Internationalisation of International Arbitration, The LCIA Centenary Conference, edited by Martin Hunter, Arthur Marriott and V.V. Veeder. Published by Graham and Trotman/Martinus Nijhoff, London, 1995. Hardback. Price £65.00/US $112.00. ISBN 1-85966-107-6. This book contains the papers presented at the London Court of International Arbitration Centenary Conference which took place in September 1993 in London. The book is divided into four main parts; Part A – The Changing Perspective – The Last 100 Years, Part B – The Lessons of the Last Decade, Part C – Looking Ahead to the Next Ten Years, and Part D – Into the 21st Century and the Next 100 Years. Unusually for such a publication, there is a final part which records some of the comments made in the discussion sessions. This is welcome feedback on the proceedings and such a format is to be encouraged for future publications. In the preface the editors note that ‘… the present system of international commercial arbitration is the work of relatively few men who dreamt great dreams …’ they go on to question whether ‘… the seeds of new ideas … [can] be sown now, in our time, by new dreamers of ‘impossible dreams’. I accept that since the incorporation of the LCIA the deployment of arbitration as a means of settling cross-border commercial disputes has been promoted and actively developed by …