International Business Disputes Research Articles

The Freedom of Contract: The Indonesian Court's Decisions on Internasional Bussiness Disputes

The presence of free trade zone and the increase in cross-border trade, have led to a significant increase in transnational legal relations. As a result, international contracts have become more common, and the principles of freedom of contract, including the freedom to choose the law and forum, have become increasingly important. Freedom of contract is a very universal principle. Almost all countries in the world recognize it as a very fundamental principle in contracts, even in international business contracts. This principle recognizes that contracts made by the parties act as laws for the parties that compile them. However, there is still lacking consistency among Indonesian judges in their interpretation of the choice of law and forum in international contracts. This study examined the raison d’ etre of different views and decisions of Indonesian judges in interpreting the choice of law and the choice of forum, and its implication to the principle of legal certainty in international business disputes. Through the normative legal research which elaborated with a case study, this research finds that The views of some Indonesian court judges deviate from the principle of freedom of contract where the law that has been chosen by the parties is based on considerations of the principle of effectiveness besides focusing on the nature of the case handled so that the decision can be executable. The court may need to balance the principle of freedom of contract with other important considerations in order to arrive at a fair decision. This is why it is important for judges to have a clear understanding of both the principles of freedom of contract and the practical implications of their decisions in order to promote legal certainty in international business transactions.

Alternative Dispute Resolution Dalam Sengketa Bisnis Internasional

Introduction: The importance of understanding international business contract law is because international business will involve more than one country so that the laws in these countries will also differ from one another. This will cause problems if there is a business dispute between two parties from different countries.Purposes of the Research: Thus, this study aims to analyze dispute resolution, especially alternative dispute resolution in international business.Methods of the Research: The research method used is normative juridical or what is known as legal research which is carried out by reviewing and analyzing the substance of the legislation on the subject matter or legal issue in its consistency with existing legal principles.Results of the Research: Choice of law is a consequence in an international business contract as a result of different legal rules in each country. Alternative dispute resolution is a method of dispute resolution that can be used in international business disputes. Arbitration, Mediation, Conciliation, Negotiation and Consultation can be used as initial options so that a solution can be obtained from the disputes faced before going through the litigation route which of course will be more time consuming and costly.

Growing New Wings: The Rise Of International Arbitration In Japan

This article considers the growing trend for Japanese entities to select international arbitration as the primary means for resolving international business disputes. In particular, this paper focuses on the following four factors which it identifies as being significant drivers behind this trend: (1) increasing maturity of Japanese parties in terms of their arbitration experience; (2) a growth in awareness of arbitration associated the rapid expansion of Japan’s investment treaty programme; (3) the establishment of a locally based arbitration talent pool, and (4) improvements in the domestic legal, educational and physical infrastructure for arbitrations seated in Japan. Japan, international arbitration, investment treaty arbitration, market growth, legal infrastructure, statistics.

Commercial hostages in international business disputes

AbstractA “commercial hostage” or “debt hostage” situation involves a dispute between a foreign company and its local partner over such matters as payment, the closing of a local office or facility, the laying off of local employees, or the transfer or ownership of intellectual property. Rather than file a lawsuit seeking money damages or an injunction, the local partner takes extra‐judicial steps to detain the foreigner against their will, so as to pressure the foreign company into resolving the dispute. The local police may even actively assist the local partner by way of inaction when the foreign company asks for help. While this activity occurs in a number of countries, this study focuses on China. One challenge in studying commercial hostage situations is gathering enough cases to be able to gauge the factors that drive them. Stated differently, how can scholars shift the study of this important topic from the anecdotal to a data‐based approach? This study is an initial attempt to do just that—it mainly attempts to gauge the frequency of recent commercial hostage activity in the P.R.C. Secondarily, it sheds light on where that activity occurs, why, and the identity of its victims. To accomplish this, Freedom of Information Act requests were submitted to six Western countries (including the U.S.) with significant China trade. English and Chinese business and legal media reports were also searched for commercial hostage cases involving foreigners. Between these two sources, dozens of commercial hostage incidents were identified. The vast majority occurred in or near Tier 1 cities and/or coastal regions, a significant number involved foreign firms operating in the commodity goods space, and a disproportionate percentage involved ethnic Chinese. Building on these findings, we conclude by providing a risk assessment matrix that foreign businesspersons can use to evaluate the risk of travelling to the P.R.C. for business. As trade tensions rise between the U.S. and China, the importance of this issue and evaluating commercial hostage risk may only increase.

Relational analysis of the international commercial court and international arbitration to improve the legal environment for resolving international business disputes

Business is becoming more and more globalised, resulting in increased competitiveness, which drives down prices and provides a greater variety of choice for consumers. However, there are also challenges presented by the globalisation of businesses and international commercial courts across the globe exist to navigate these issues. Globalised businesses are subject to the legal judgements of the country in which they are based, as well as the legal judgements of the countries in which they operate. Therefore, the presence of international commercial courts is crucial for promoting the use of international arbitration and international alternative dispute resolutions (ADR), in which disputes are resolved outside of court. Professor Akira Saito, Graduate School of Law, Kobe University, Japan, is exploring the relationship between international commercial courts and international arbitration with the goal of improving the legal environment in different countries and resolving international business disputes. Discussions with his mentor, Professor Oliver Williamson, University of California, led Saito to this project, which is an interdisciplinary study of law that is seeking to develop the next generation of lawyers and business people with a well-rounded perspective of the legal system and the ability to utilise it in a manner that helps develop business activities.

The Effectiveness of Enforcement of International Arbitration Awards in the Alternative Dispute Resolution Regime

The aim of this research is to create a more accommodating arbitration model law by measuring the effectivity of international arbitration award implementation in accordance with UU No. 30/1999 regarding Arbitration and ADR law in international business dispute. The study analyzes the enforcement of international arbitration award implementation in relation to fairness and legal certainty. The research method is normative empirical, using statutes, conceptual, cases and sociological approaches. The technique of data gathering was carried on by observation, interview and library research. The conclusion of this research is that the implementation of international arbitral awards is still not effective due to normative barriers from the law itself, as well as institutional, support infrastructures and human resources barrier. Steps need to be taken to reinforce the implementation of the arbitration awards in relation to create legal certainty in a normative sense.

KLAUSULA ARBITRASE DAN ITIKAD BAIK PARA PIHAK SEBAGAI DASAR PENYELESAIAN SENGKETA BISNIS INTERNASIONAL

When the parties have agreed to choose arbitration as the dispute resolution agency, the district court must refuse to examine and adjudicate on the dispute, if one party brings the dispute resolution to the district court. However, in practice there are those who still choose to use the path of the judiciary. Among them is the case of Decision Number 410 / Pdt.G / 2011 / PN.Jak.Pst. and 534 / Pdt.G / 2011 / PN.Jkt.Sel although with different decision results. Based on the reality of this practice, this paper intends to examine whether the decision number 410 / Pdt.G / 2011 / PN.Jak.Pst can be deemed as International Civil Law and whether the action as the object of disputes in the Case Number 410 / Pdt.G / 2011 / PN.Jak.Pst is an unlawful action. Cases that are settled in a district court regardless the clause that states that in the case of dispute, it will be settled arbitrarily by the parties, then the decision produced by the District Court is not an international civil law. Actions which are subject to dispute in the Case Number 410 / Pdt.G/2011/PN.Jak.Pst are not unlawful acts. The absolute competence of arbitration is that a case arising from the agreement itself is not an act that is regulated outside the agreement even though there is a clause stating that if there is a dispute it will be settled arbitrarily. When the parties no longer have a good intention to settle the dispute through arbitration, then this becomes the authority of the district court. Keywords: International Business Dispute Arbitration Clause.

Challenges and Opportunities for the China International Commercial Court

China has confirmed its ambition to join in the global competition for international business dispute resolution services by establishing the China International Commercial Court (CICC). The CICC has now started its operation following a judicial interpretation issued by the Supreme People’s Court. By examining the trial process of the CICC as set out by the Supreme People’s Court and comparing the rules with other international commercial courts, this article provides a detailed overview and critical analysis of the issues concerning cases brought to the CICC. Overall, compared with the approaches adopted by other international commercial courts, the approach adopted by the CICC is conservative. Without bold innovations to China’s existing judicial system, the competitiveness of the CICC is likely to be limited. This article argues that it is desirable for the Court to be more actively reformed. Such reforms might also promote judicial reform in China generally and increase China’s institutional competitiveness in the global business world. This article also aims to outline the challenges that parties (in particular those from overseas) may face in litigation before the CICC and provide the international community with a critical analysis of the operation and framework of the CICC.

CHALLENGES AND OPPORTUNITIES FOR THE CHINA INTERNATIONAL COMMERCIAL COURT

AbstractChina has confirmed its ambition to join the global competition for international business dispute resolution services by establishing the China International Commercial Court (CICC). The CICC has now begun operation following a judicial interpretation issued by the Supreme People's Court. By examining the trial process of the CICC as set out by the Supreme People's Court and comparing the rules with other international commercial courts, this article provides a detailed overview and critical analysis of the issues surrounding cases brought to the CICC. Overall, compared with the approaches adopted by other international commercial courts, the approach adopted by the CICC is conservative. Without bold innovations to China's existing judicial system, the competitiveness of the CICC is likely to be limited. This article argues that it is desirable for the Court to be more actively reformed. Such reforms might also promote judicial reform in China generally and increase China's institutional competitiveness in the global business world. This article also aims to outline the challenges that parties (in particular those from overseas) may face in litigation before the CICC and provide the international community with a critical analysis of the operation and framework of the CICC.

Moot Court Competitions and their Role in Practice Oriented Training of Law Students

The paper explores the issues that are rarely dealt with by Russian Universities and their Faculties in the context of the methodology and general theory of legal education, whereas the issue of mooting (legal competitions) is rather well covered under the common law system. The primary goal of any moot competition is to facilitate both the study of the subject matter (e.g. international commercial law as in the annual Vis moot competition) and the existing dispute resolution processes (e.g. arbitration as the dispute resolution process of choice for international business disputes). Thereby, mooting trains future law leaders in dispute resolution. The most common approach is that a perfect team of mooters needs an equal combination of both outstanding legal arguments (both in oral and written forms) and effective presentation skills. Based on our coaching experience and the discussions we have conducted with our colleagues and students involved in mooting we show that there are numerous different views among moot competitions participants, judges, coaches, and the most experienced “real” professional advocates as to the most effective advocacy tools. Mooting and clinical work represent the key skills-oriented approaches to training lawyers. However, mooting prevails in the context of globalisation of legal education and the development of cross-cultural competences.

MOOT COURT COMPETITIONS AND THEIR ROLE IN PRACTICE ORIENTED TRAINING OF LAW STUDENTS

The paper explores the issues that are rarely dealt with by Russian Universities and their Faculties in the context of the methodology and general theory of legal education, whereas the issue of mooting (legal competitions) is rather well covered under the common law system. The primary goal of any moot competition is to facilitate both the study of the subject matter (e.g. international commercial law as in the annual Vis moot competition) and the existing dispute resolution processes (e.g. arbitration as the dispute resolution process of choice for international business disputes). Thereby, mooting trains future law leaders in dispute resolution. The most common approach is that a perfect team of mooters needs an equal combination of both outstanding legal arguments (both in oral and written forms) and effective presentation skills. Based on our coaching experience and the discussions we have conducted with our colleagues and students involved in mooting we show that there are numerous different views among moot competitions participants, judges, coaches, and the most experienced “real” professional advocates as to the most effective advocacy tools. Mooting and clinical work represent the key skills-oriented approaches to training lawyers. However, mooting prevails in the context of globalisation of legal education and the development of cross-cultural competences.

When context trumps culture: Persuasion in international business disputes

Persuasion plays an important role in international business interactions. Within this domain, it is often argued that persuasion is a form of communication and as such embedded in cultural norms. It is also argued that forms of persuasion differ across cultures. The data described in this study of persuasive tactics deployed by Israeli and Indian business professionals in their attempts to resolve disputes with their partners suggest otherwise. These data mainly comprise 142 coded letters, addressed to the correspondents’ business partner and to the mediator. The quantitative results of the study show similarities in the choice of persuasive tactics employed by Israeli and Indian correspondents, when writing to each other and when writing to the mediator. The quantitative and qualitative results show that these research subjects, from two culturally different populations, constructed their persuasion tactics and communication in a similar manner. Hence, despite the apparent cultural and communication differences between them, they both employed similar communication tactics. These intriguing data are explained in the light of the fact that both Indian and Israeli subjects were experiencing a situation which they subjectively perceived as one involving a threat of meaningful loss. These perceptions and emotional responses led the participants toward similar communication behavior. This study contributes to international management research, and particularly to intercultural communication research, by demonstrating that contextual conditions do cause culturally different populations to communicate similarly.

International Commercial Arbitration: Cases, Materials, and Notes on the Resolution of International Business Disputes(2nd edition), by W. Michael Reisman, W. Laurence Craig, William W. Park and Jan Paulsson

It is a very rewarding and enjoyable task to review the second edition of International Commercial Arbitration: Cases, Materials, and Notes on the Resolution of International Business Disputes . The task is rewarding because of the rich and extensive diversity of materials assembled in the book, and because of the thoughtfulness which the four extremely distinguished and experienced authors have brought to excerpting, ordering, and commenting on the materials. For both newcomers to international arbitration and seasoned practitioners and academics, the book provides a stimulating and deeply provocative selection of foundational materials in the field. Readers are simultaneously provided a clear, easily-comprehensible introduction to the basic principles of international commercial arbitration and an in-depth journey through the complexities of the field. The result is a highly rewarding blend of practical and theoretical. This combination should not be surprising. The four authors combine the best of academic and practical experience, developed in law schools and law firms in both Europe and America. The result is an impressively international collection of materials from authors, tribunals, and courts on both sides of the Atlantic.

""<br>(Why Israel Should Adopt the Uncitral Model Law on International Commercial Arbitration)

תקציר בעברית: מאמר זה מצביע על פרדוקס: למרות שישראל הינה מדינה המעורה מאד במסחר הבינלאומי, ולמרות שבוררות היא הדרך המועדפת בקהילת העסקים לפתרון סכסוכים מסחריים בינלאומיים, בפועל מתקיימות מעט מאד בוררויות בינלאומיות בישראל. התשובה לפרדוקס טמונה לדעת המחבר בעובדה שלמדינת ישראל יש חוק בוררות מיושן, הסובל ממספר פגמים מרכזיים, אבל בעיקר בעובדה שהוא חוק אידיוסינקרטי שאינו מוכר למשפטנים זרים. לפיכך מציע המחבר לאמץ את החוק לדוגמה של האום לבוררות מסחרית בינלאומית (UNCITRAL Model Law on International Commercial Arbitration). המאמר מראה כי חוק זה, המותאם במיוחד לצרכים של הבוררות המסחרית הבינלאומית, נהנה ממוניטין בינלאומי ויכול לסייע רבות בלהפוך את מדינת ישראל ליעד אטרקטיבי יותר לבוררויות בינלאומיות. המחבר מצביע על הבעיות שמהן סובל חוק הבוררות שלנו ומראה שבעיות אלו נפתרו בחוק לדוגמה ושאימוצו יתרום לשיפור וייעול של הליכי הבוררות בישראל ולהגשמת רצון הצדדים. כמו כן, הוא טוען שמעצם העובדה שחוק זה מוכר בקהילת המשפטנים בעולם העוסקים במשפט מסחרי ובבוררות בינלאומית- בהיותו מאומץ בקרוב למאה מדינות בעולם - יהיה באימוצו כדי להפוך את ישראל לשיטת משפט מוכרת לקהילה זו. המאמר גם מראה את היתרונות שיצמחו לכלכלה הישראלית ולעורכי-הדין בישראל מכך שיותר בוררויות בינלאומיות יתקיימו כאן. מדינות רבות אימצו את החוק לדוגמה לכל סוגי הבוררויות – הן בינלאומיות והן מקומיות – ובחלקו האחרון עוסק המאמר בשאלה אם כדאי גם לישראל לעשות כך. לאחר העלאת היתרונות והחסרונות של שתי האפשרויות, נוטה המחבר להמליץ על אימוצו לבוררויות בינלאומיות בלבד, תוך הכנסת תיקונים נדרשים מסוימים גם לתוך חוק הבוררות הקיים, אשר ימשיך לחול על בוררויות מקומיות. English Abstract: This article points to a paradox: Despite the fact that Israel is deeply involved in international commerce, and although arbitration is the most common way to resolve international business disputes, very few international commercial arbitrations are seated in Israel. The explanation to this paradox, in the author’s view, is that Israel has an outdated arbitration law that suffers from several flaws, and in particular, that it is an idiosyncratic law with which foreign lawyers are not familiar. Therefore, the article suggests that Israel should adopt the UNCITRAL Model Law on International Commercial Arbitration. It argues that the Model Law enjoys an excellent reputation within the international arbitration community and can help much in making Israel a more attractive seat for international arbitrations. The author points to the flaws of Israel’s existing arbitration law and shows how the Model Law has fixed these flaws. He also argues that since the Model Law is well known among the world’s international business and arbitration lawyers – having been adopted in almost one hundred different jurisdictions in the world – by adopting it, Israel can turn its arbitration law into a familiar legal system for those lawyers. The article also points to the benefits that will accrue to the Israeli economy and to Israeli lawyers from the increase in the number of international arbitrations seated in Israel. Many countries have adopted the Model Law for both international and domestic arbitration, so in its last chapter, the article deals with the question of whether Israel should do the same. After raising the pros and cons of the two options in this regards, the author leans towards the option of adopting the Model Law only for international commercial arbitrations, while making necessary amendments to the existing law, which will continue to apply to domestic arbitrations.

Treaty Interpretation In Investment Arbitration by J. Romesh Weeramantry

Arbitration of International Business Disputes – Studies in Law and Practice by William W. Park. Published by Oxford University Press, 2012, 2nd Edition, ISBN 978-0199657131 (904 pages) According to the Chief Justice of the US Supreme Court, ‘every lawsuit is a story’, suggesting that every book – and perhaps every book review – should also have a narrative through-line.1 Given such august advice, it is perhaps not inappropriate to begin this review essay with a phrase made familiar by the Brothers Grimm: once upon a time … 2 Once upon a time, international commercial arbitration was viewed by the legal and business communities as a brash young upstart, an innovative but somewhat untested ‘alternative’ to more legitimate forms of dispute resolution: the prince to litigation's king, to coin a Grimmian metaphor. Over the course of several decades, as arbitration's benefits became increasingly well-known and well-respected, courts, commentators and counsel began to change their beliefs about the legitimacy of the procedure. Today, arbitration no longer constitutes an ‘alternative’ to litigation, but is instead the preferred means by which to resolve legal disputes in cross-border commerce.3 Just because something is popular does not mean that it is also mature, however, as any observer of the music and entertainment world can attest. Therefore, those who wish to determine whether arbitration has evolved into a mature form of dispute resolution must look beyond mere usage levels. One way to determine the maturity of a particular area of law is to consider the number and quality of judicial decisions rendered in that particular field. Based on this criterion, international commercial arbitration has done very well, since arbitral matters have been considered thousands of times over by courts from around the world, generating a vast body of increasingly sophisticated jurisprudence.4 Arbitral tribunals have generated an even greater number of arbitral awards, which are often made publicly available in denatured (depersonalized) form.5 A second method of gauging the maturity of …

Conciliation as a mechanism for the resolution of international economic and business disputes

This Article will examine the use of conciliation as a mechanism for the resolution of disputes arising out of trade, investment, and other business relationships in this broadly framed transnational system. Part I presents an overview of dispute resolution methods. Part II provides a definition of “international conciliation.” Part III discusses the various uses of international conciliation as a method for the resolution of international conflicts; this Part highlights several relevant international agreements and organizations. Part IV argues in favor of conciliation as a means for achieving the settlement of international economic and business disputes. CONCILIATION AS A MECHANISM FOR THE RESOLUTION OF INTERNATIONAL ECONOMIC AND BUSINESS DISPUTES

ADR in Business: Practice and Issues across Countries and Cultures by J.C. Goldsmith, A. Ingen-Housz, and G. Pointon

ADR (primarily mediation) has become popular in all sorts of domestic disputes, but there has not been a particular focus so far on analysing the use and implications of ADR in international business disputes. The main purpose of mediation is to achieve greater value and efficiencies, i.e. to avoid the uncertainty risks and cost of litigation (arbitral or through the courts) where the original parties tend to lose control over the process; it is also about identifying and making available gains that can be created out of an efficient and creative renegotiation of no longer viable contractual relationships rather than destroy a business relationship established with great investment by litigation. There has been quite some enthusiasm, with numerous training programmes producing certified mediators, most of whom, however, have little if any true mediation business. Mediation has its limits, both in terms of parties having truly to want to settle rather...

Multi-party arbitration in international trade: problems and solutions

Legal disputes regarding international trade frequently involve more than two parties. This leads to problems, as the preferred means of dispute resolution within international trade ? arbitration ? tends to be ill-equipped to handle such disputes. The topic of this paper is arbitration as a means of dispute resolution in a multi-party set-up. Both the possible legal bases and the problems encountered are considered. It is concluded that arbitration is still the only real option to the parties in international business disputes and that many of the shortcomings may be countered by skilful drafting of the arbitration agreement.

Arbitration and Criminal Law: Reflections on the Duties of the Arbitrator

Arbitration and criminal law appear to live on two distant planets, and their paths do not seem ever to have to cross each other. Arbitration is based upon private autonomy, and its purpose is to adjudicate private disputes. Criminal law endeavours to restrict private autonomy for the sake of the general interest. Criminal law is at the core of the state's mandatory laws, while arbitration is autonomous from states. Yet, because criminal law rules might have an impact on both the arbitral proceedings and the solution of the dispute, these two disciplines have more points of connection than could be suspected from the outset. The aim of this article is to address this odd relationship from the point of view of the arbitrator's duties.1 The international business legal environment is nowadays characterised by a double trend. On one side, globalisation and the creation of a true world marketplace have sidelined national states and undermined their traditional role as the ultimate source of legality. In countries like France or Germany, ever since the time of Napoleon III and Bismarck, well before the Welfare State was invented, the state was perceived as having unlimited resources and unrestricted power. This is no longer true in today's economy. Transnational law has become a reality. Arbitration, the autonomy of which from national jurisdictions is more and more widely recognised, has emerged as the normal way to settle international business disputes. With the growing flow of state contracts, state arbitrations and investment arbitrations, states have become subject to international liability, just like private parties. On the other side, however, mandatory rules tend to proliferate, particularly in the field of economic and business law. The causes of such a trend are various. In Europe, the tendency to overregulate is one of them. The growing penalisation of …

GearBi: Towards an online arbitration environment based on the design principles simplicity, awareness, orientation, and timeliness

Arbitration is a preferred method for the resolution of international business disputes. As of yet, most publications on online arbitration deal with legal issues. In this paper, we present an Online arbitration environment that we believe facilitates the participants in a meaningful way. Our assumption is that an ODR service should be easy to use (convenient), and at the same time provide meaningful support. More specifically we have paid attention to four criteria that we believe are important, viz. simplicity, awareness, orientation and timeliness. The online arbitration service is called GearBi.