Commercial Dispute Resolution Research Articles

The Need, Development, and Benefits of Commercial Arbitration in Afghanistan

Aim: Commercial arbitration is considered to be one of the best and widely accepted mechanisms for resolving commercial disputes in the world today. However, on the one hand, as a member state of the international community, with regard to foreign investment and commercial development in Afghanistan, to what extent does Afghanistan need commercial arbitration in its jurisdiction? How much attention has been paid to the and finally, what are the benefits and advantages of this dispute resolution mechanism for the opposing sides of commercial disputes? All of these queries have been analytically discussed in this research. In this study, the efforts made in Afghanistan are evaluated. The basic purpose of the subject is to evaluate the need and development of commercial arbitration in Afghanistan and to reveal its benefits to foreign and domestic businessmen and companies so that businessmen and companies in Afghanistan can resolve their commercial disputes through a cheap, easy and efficient arbitration mechanism which ultimately paves the way for encouraging greater foreign investment and trade in Afghanistan.
 Methods: In this research, the bibliographic approach has been used and the strategy of presenting the research information is descriptive and analytical.
 Results: The findings of the research show that Afghanistan accepted commercial arbitration as a mechanism for resolving commercial disputes in its jurisdiction almost decades ago, and today it has created many laws for its more efficiency. In addition, it has also practically created arbitration centers and institutions for the resolution of commercial disputes and even created some educational programs for the training of professional arbitrators and expert in this field.
 Recommendation: To a noticeable extent, Afghanistan has paid significant attention to the development of arbitration, it still needs to establish countrywide arbitration centers, enact new procedural laws to enforce arbitral awards and ultimately it needs to institutionalize the use of arbitration mechanism in its legal system.

The effectiveness of alternative methods of commercial dispute resolution: a comparative analysis of arbitration and mediation

Alternative dispute resolution (settlement) methods, including any kind of out-of-court dispute resolution, are gaining popularity in the Republic of Uzbekistan. This article discusses the general concept of alternative dispute resolution methods, their effectiveness, and distinctive features. The article is also devoted to comparing alternative dispute resolution methods such as mediation and arbitration. This analysis revealed the similarities and differences between the two procedures.

Resolution of Commercial Disputes by Mediation as an Alternative Method: A Legal Analysis for Turkey and Uzbekistan

Resolution of Commercial Disputes by Mediation as an Alternative Method: A Legal Analysis for Turkey and Uzbekistan

Joinder Mechanism in International Commercial Arbitration: A Trend in the Digital Age?

AbstractIn recent years, the phenomenal development and application of technology have given rise to new means and forms of international commercial dispute resolution. In particular, in the post-COVID era, the demand for efficient, flexible and cost-saving dispute resolution methods has increased significantly. Therefore, technology-enabled digital methods such as online arbitration, have become more widely accepted and applied. At the same time, globalisation has turned international commercial disputes increasingly complex, which often involves the interests of third parties. According to data released by arbitral institutes, about 40% of arbitration cases worldwide involve more than two parties. As there is an increasing number of multi-party arbitration cases, multi-party dispute resolution mechanisms have played a more prominent role in such circumstances. Digitalisation and globalisation have facilitated multi-party projects, but they have also inevitably increased risks in multi-party disputes. For instance, arbitration is a business-friendly process, but the consensual nature of arbitration does not easily accommodate multi-party disputes. Although digitalisation in the conduction of arbitrations has made it more efficient and increased the access of multi-party commercial disputes to resolution, it still has not helped arbitration overcome the basis of party’s consent. This paper will examine the joinder mechanism in international commercial arbitration, focusing on its interaction with traditional theories and principles of arbitration, the joinder provisions in the rules of several leading arbitral institutions (e.g. ICC, LCIA, HKIAC and SCAI), and the value of the joinder mechanism in the context of digitalisation.

„Brexito“ įtaka tarptautiniam bylinėjimuisi

By concentrating on the few recognised instruments of private international law, the article analyses problems in international commercial dispute resolution arising from Brexit. In particular, the paper deals with the relevance of, firstly, the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; secondly, the 2005 Hague Convention on Choice of Court Agreements; and, thirdly, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, all in the context of Brexit. Contextual analysis of each of the said instruments pays particular attention to the challenges specific to each of them. Therefore, for example, the article discusses the EU’s arguments in relation to its refusal to allow the United Kingdom to join the aforementioned 2007 Lugano Convention as well as varying perspectives on the moment when the 2005 Hague Convention begins to apply to the United Kingdom. Finally, the paper discusses the relevance of the recent 2019 Hague Convention in the context of Brexit.

Retracted: Construction and Application of International Commercial Dispute Resolution Mechanism Model

Retracted: Construction and Application of International Commercial Dispute Resolution Mechanism Model

Will Virtual Hearings Remain in Post-pandemic International Arbitration?

The pandemic has catalysed to hasten the wider use of virtual hearings in international arbitration. However, the promotion of virtual hearings in international commercial dispute resolution was more complex than commonly thought due to the highlighted concerns of cybersecurity and breach of confidentiality in arbitration. The worries against the wide use of virtual hearings cannot stand because technological innovations can largely improve and solve this. However, virtual arbitration hearings may not be common post-COVID times. Technology shapes how people behave, interact, grow, and develop in their relationships with others and wider communities. Yet greater immersion in the digital world undoubtedly creates new challenges and can adversely affect human-to-human interactions. There is very little scientific study on the psychological impacts of virtual hearings on arbitrators,witnesses and counsels. It is too early to assess its effectiveness from the user's perspective until the much-needed scientific data is released. Virtual hearings are unlikely to replace in-person ones necessary for more complex and high-value disputes requiring greater interaction and personal connection. Strategically, international arbitration is a private initiative-orientated, flexible, and market-driven dispute resolution mechanism. The parties are best positioned to choose the hearing format after balancing off.

M.G. Mohanty vs. That State of Odisha

The Commercial Courts Act 2015 (hereinafter referred to as the "CC Act") was established to speed up the resolution of commercial disputes promptly and with as little interference as possible in the highest courts. The law also gives the Commercial Court jurisdiction to hear commercial arbitration proceedings. Although the intention is noble, the legislators inadvertently left jurisdictional inconsistencies in the law, resulting in a conflict with the provisions of the Arbitration and Conciliation Act, of 1996. The conflict of jurisdiction arises due to the distinction between the commercial courts established by law, presided over by Civil Judges Senior Division, and the provisions outlined in the Arbitration and Conciliation Act, 1996 (AC Act). According to the AC Act, exclusive jurisdiction to adjudicate disputes related to arbitration lies with the Chief Civil Court of the respective district. This discrepancy has given rise to uncertainty regarding the authority of newly established Commercial Courts to entertain applications under the Arbitration Act. While a definitive legal resolution to this jurisdictional conflict remains elusive, the Madhya Pradesh High Court, following the Appellate Court's precedent, has determined that irrespective of the claim's value, cases pertaining to arbitration must be adjudicated within the purview of the District Civil Court. It has been observed that commercial disputes connected to arbitration, as governed by Sections 9, 14, 34, and 36 of the Arbitration Law, fall under the jurisdiction of a commercial court situated within the domain of a district judge or an additional district judge. No Class I Civil Judge or any Small Claims Court can adjudicate disputes.

The China International Commercial Court: Establishment and Development in a Global Context

International commercial courts have proliferated in the past 20 years. 1 In 2018, China established specialized international commercial courts in Shenzhen and Xi’an. They are the two branches of the China International Commercial Court (CICC). Since then there has been a proliferation of literature on the CICC. This article provides insights into the recent development of the CICC. The first part of the article explores the background against which the CICC was established. The second part narrates its recent development. The challenges the CICC faces to improve its attractiveness and competitiveness are discussed in the third part and the fourth part considers possible competition between international commercial courts in different jurisdictions. The article closes with a few concluding remarks on the place of the CICC in the global transnational commercial dispute resolution community.

The civil process of the European Union: concept and main Features

The article concerns the concept of the civil proves of the EU. So it is established that the system of civil procedure acts of the EU consists, on the one hand, of normative legal acts that regulate the general provisions of the process, and on the other hand, of those that establish direct cooperation between the member states of the Union for the proper implementation of judicial proceedings. Such a complex has created a single legal space within which cooperation enables effective resolution of civil and commercial disputes. Analyzing the main characteristics of the EU civil process, it is noted that the policy of the EU is to respect the legal traditions of the member states, which do not violate EU law and the practice of the European Court of Human Rights. In view of this, unification of court procedures and their implementation on the basis of uniform principles. Given the broad nature of the EU civil process, it is specified that its place should not be narrowed down to an institution of private international law. In particular, this is due to that EU law has an independent and at the same time integrative character, which makes it possible to talk about its supranational character. The multi-level legal system and the presence of regulatory legal acts, which are universal for member states, are also an argument in favor of its separation from a purely domestic legal system. The next reason for such a position can be the fact that the EU Court is aseparate institution of the EU, which is empowered to consider cases, including claims by individuals and legal entities in the civil and commercial spheres, as well as the function of interpreting EU regulations. Therefore, the implementation of such judicial proceedings is determined by independence. It should also be noted that one of the EU's activities includes the development and implementation of general principles and standards of judicial proceedings for their further implementation in the civil process of both the EU and member states. In view of this, it can be seen that civil justice goes beyond the borders of only a certain country. Taking into account the outlined concepts, as well as the theoretical and practical aspects indicated in the research, in order to formulate the category of EU civil process, it is advisable to proceed from its dual nature: on the one hand, the influence of the European Union on the harmonization of the legislation of the member states with the aim of deepening cooperation between them, on the other, - the existence of a separate set of legal norms that regulate civil procedural relations. In view of this, the following definition can be proposed: EU civil process - the procedure for judicial cooperation of member states in civil and commercial cases, as well as the procedure for consideration and resolution of such cases, established by the system of EU legalacts. At the same time, the main features of the civil process of EU include: independence,which consists in the presence of separate legislation in the field of civil process and separate institutions, in particular the EU Court; subsidiarity, which defines the interaction of the EU as an association and its member states to achieve the effectiveness of the administration of justice in civil and commercial cases; is based onthe principle of proportionality of the general interest in ensuring the effectiveness of the EU civil process and the interests of the member states, which consists, inparticular, in respect for their national legislation and legal tradition. Key words: civil procedure, European Union, standards of civil procedure, EUCourt, judicial cooperation.

개성지역 남북합영회사의 법적 쟁점에 관한 연구

In 2010, with the implementation of the May 24th measures, inter-Korean economic cooperation was suspended in all areas except the Kaesong Industrial Complex. Then, in 2016, with the closure of the Kaesong Industrial Complex, all inter-Korean economic cooperation came to a halt. The joint venture enterprises in inter-Korean economic cooperation were mainly concentrated in the Pyongyang region. However, there was a case of inter-Korean economic cooperation in the form of a joint venture enterprise outside the Kaesong Industrial Complex that could be accessed using the entry and exit procedures of the Kaesong Industrial Complex. South-North Equity Joint Venture Enterprise in Kaesong can utilize the industrial, transportation, and transit facilities of the Kaesong Industrial Complex and has the advantage of active participation by North Korea, which holds shares. In the Equity Joint Venture Act, it is necessary to clarify the criteria for setting land usage fees, ease the all-out agreement system, and ensure education for workers. In addition, it is necessary to fairly define subsequent procedures in cases where consultation is impossible. Under the North-South Economic Cooperation Act, it is necessary to simplify the North's project approval process and stipulate that the North should manage its property in good faith, at least to a minimum extent, in special circumstances. The law on the development of inter-Korean relations needs to clearly define the special relationship between North and South Korea and elevate the legal status of the inter-Korean agreements to the level of general treaties. The law on inter-Korean exchange and cooperation should clearly stipulate in writing the procedures for obtaining North Korean visit approvals and for importing and exporting goods, and should minimize the time required for these processes. The agreement on investment protection between North and South Korea should specify in detail the abnormal issues that impede economic cooperation and provide for step-by-step investment protection accordingly. Regarding the agreement on the resolution of commercial disputes between North and South Korea, the follow-up procedures of the agreement should be promptly carried out, and the establishment of a governing law that applies to both North and South Korea is necessary. The inter-Korean agreement went through the legislative approval process outlined in Article 60, Paragraph 1 of the Constitution, thereby establishing its legal validity. However, due to North Korea's non-compliance, it has become practically ineffective. However, as North Korea has not explicitly rejected the validity of the agreement, it is not advisable to disregard the agreement and its provisions in preparation for future inter-Korean cooperation. North Korea has been attempting to improve its external economy through scientific and technological exchanges, economic development zones, and other means since the 2010s. However, the situation has worsened due to North Korea's nuclear tests leading to U.S. sanctions and the impact of COVID-19. Due to COVID-19, there have been zero exchanges of people between North and South Korea for a period of two years starting from 2021. In the current tense situation of strained inter-Korean relations, inter-Korean economic cooperation should be carried out flexibly and adaptively, taking into account the interests of both North and South Korea and contributing to their reunification, in accordance with the dynamics of inter-Korean and international relations.

A STUDY ON THE «ONE-STOP» DIVERSIFIED INTERNATIONAL COMMERCIAL DISPUTE RESOLUTION PLATFORM OF THE CICC IN THE CONTEXT OF THE BELT AND ROAD INITIATIVE

China has proposed to establish a «One-Stop» diversified international commercial dispute resolution platform (hereinafter «One-Stop» platform) in the CICC that effectively combines litigation, mediation and arbitration, which is one of the innovative measures of the CICC. However, the mechanism to effectively combine these three dispute resolution methods in the «One-Stop» platform is insufficient, the international expert committee has not been able to fully play its role, and there are difficulties in the recognition and enforcement of settlement agreements, arbitration awards, and court judgments after dispute resolution. In response to the above problems, the procedural mechanism of the «One-Stop» platform should be improved, the duties of the expert committee should be clarified, and China should consider introducing more diversified international treaties and improving domestic legislation so that the operation of the «One-Stop» dispute resolution platform can be supported by law. With such legal support, the operation of the «One-Stop» platform can provide public legal service products that are more in line with international needs.

Unbundling the State: Legal Development in an Era of Global, Private Governance

AbstractWhat happens to a public, domestic institution when its authority is delegated to a privately run, transnational institution? I argue that outsourcing traditionally national legal responsibilities to transnational bodies can lead to the stagnation of domestic institutional capacity. I examine this through a study of international commercial arbitration (ICA), a widely used system of cross-border commercial dispute resolution. I argue that ICA provides commercial actors an “exit option” from weak public institutions, reducing pressure on the state to invest in capacity-enhancing reform. I find that the enactment of strong protections for ICA leads to the gradual erosion of the capacity of domestic legal institutions, particularly in countries with already weak legal systems. I test the mechanism driving this dynamic using dispute data from the International Chamber of Commerce. I find that pro-arbitration laws increase the use of international arbitration by national firms, suggesting that firms use ICA as an escape from domestic institutions. This article contributes to debates on globalization and development as well as work on the second-order effects of global governance institutions.

Assessment of the Success of the Convention on Choice of Court Agreement in Transnational Commercial Dispute Resolution

Assessment of the Success of the Convention on Choice of Court Agreement in Transnational Commercial Dispute Resolution

THE ROLE OF ECONOMIC COURTS IN THE ECONOMIC DEVELOPMENT OF UKRAINE

The subject of the study is the role of economic courts in the economic development of Ukraine. The purpose of the article is determined by the current economic processes taking place in the country in connection with the full-scale aggression of the Russian Federation and the introduction of martial law in the territory of the state by the Decree of the President of Ukraine of February 24, 2022. According to preliminary forecasts, by the end of 2022 inflation in the country will increase to over 30%, and by the end of 2023 and 2024 it is expected to reach 20.7% and 9.4% respectively. Therefore, the purpose of the article is to provide a theoretical and practical substantiation of the impact of economic courts on the support and development of the State's economy in modern conditions. The methodological basis of the work is a set of general philosophical, general scientific and logical methods, the combination of which allowed to achieve a certain level of objectivity, comprehensiveness, as well as the validity of the study and the reliability of the conclusions. The leading role in the work is played by the statistical method, which made it possible to outline the trends in the number of considered economic cases, the amount of property claims of plaintiffs and the amount of funds allocated for recovery (indicators for 2021, 2020, 2019, 2018, etc. were considered). The results of the study make it possible to conclude that the influence of economic courts is both direct and indirect. Direct influence is manifested in the results of administration of justice, resolution of commercial disputes and satisfaction of interests of business entities. The indirect impact is related to the replenishment of the special fund of the State Budget of Ukraine by economic courts through the receipt of court fees. In addition, the difficulties faced by judges of economic courts in the context of the full-scale aggression of the Russian Federation against Ukraine are highlighted: 1) the danger to the life and health of judges, court staff and visitors to the court in general (for example, in Odesa from February 24, 2022 to September 8, 2022, air alert was announced fifty-one times, its total duration was thirty-nine hours); 2) destruction or damage to the material and technical base of economic courts (for example, in the Economic Court of Donetsk region and the Economic Court of Luhansk region, located in the same building, the plaster on the facade of the building was damaged, the building of the Economic Court of Mykolaiv region was damaged); 3) lack of judges (this is due to the suspension of the work of the High Qualification Commission of Judges of Ukraine, on the one hand, and the fact that some judges left the country with the beginning of hostilities); 4) insufficient level of funding (in 2020, the Supreme Court received six appeals from economic courts regarding insufficient funding, and in 2021, special attention was paid to the problem of underfunding of the Economic Court of Kyiv region, which led to a shortage of funds in the wage fund of the court staff). Practical implications. It is determined that any further actions of the state should be aimed at raising the qualification level of judges of economic courts and public confidence in them, popularization of the procedure for applying to economic courts and legal proceedings. Value/originality. The study confirms the effectiveness of economic courts and allows to analyze it from a new perspective, since, as most scientific studies show, the effectiveness of economic courts is mainly associated with: the speed of consideration of cases; a small number of decisions appealed to a higher instance (compared to the indicators of general and administrative courts); the percentage of cases considered.

A Critical Analysis of Arbitration as an Instrument for Resolving Commercial Dispute in Nigeria

This paper is a critical analysis of arbitration as an instrument for resolving commercial dispute in Nigeria. The Nigerian courts considering the precarious situation finds itself in the dispensation of justice moreso in the resolution of commercial disputes. The works examine the concept of arbitration, overview of alternatives dispute resolutions (ADR), the legal and institutional framework for the regulation of arbitration in Nigeria, types of arbitration among others. The work underscored the prospects and future of arbitration in the areas of party autonomy, third party funding, and online arbitration, the availability of injunctions and interim reliefs within the framework of arbitration and the upsurge of arbitral institutions. The paper recommends that for arbitration to be properly harnessed and enhanced all hands must be on deck – the parties, the courts, counsel all have a role to play.

E-Arbitration and International Commercial Dispute Resolution

E-Arbitration and International Commercial Dispute Resolution

Regulation of Commercial Dispute Settlement Mediation in the Perspective of Legal Assurance and Justice

The Indonesian government is currently trying to formulate an appropriate and up-to-date formula for making regulations on mediation and settlement of commercial disputes. This is done by the Indonesian government to support various policies that have been made to ensure legal certainty so that investment develops. Therefore, the authors are interested in bringing up the theme of this scientific article by analyzing comparative studies between Indonesia and Malaysia; The analysis in this article is about the mediation arrangement for the settlement of commercial disputes in Indonesia by comparing with Malaysia to achieve legal certainty and justice. The research method used is normative juridical. The results of the study show that the regulation of mediation for the settlement of commercial disputes in Indonesia as regulated in Law Number 30 of 1999 in substance and structure does not meet legal certainty and justice. Meanwhile in Malaysia, the arrangements for dispute resolution mediation regulated in the Kuala Lumpur Regional Arbitration Center Mediation Regulations and the 2012 Mediation Law (UU 749) have met legal certainty and justice. In the future, the concept of regulating commercial dispute settlement mediation in Indonesia, its substance and structure must meet legal certainty and justice. This scientific article concludes that the concept of regulating commercial dispute resolution mediation in Indonesia must be regulated separately because in substance and structure, mediation and arbitration have different principles. It is preferable that the regulations that will be made in the future must involve various parties related to the business world to produce representative regulations both nationally, regionally and internationally; if necessary, Indonesia becomes an alternative legal model for dispute resolution through mediation.

Construction and Application of International Commercial Dispute Resolution Mechanism Model

In specific judicial practice, the ODR mechanism has played an important role in the settlement of e-commerce disputes and network disputes. However, ODR is still in the exploratory stage in many aspects, and it is inevitable that there will be some problems. This article focuses on the A priori algorithm and frequent pattern growth algorithm in association with rule mining learning. The shortcomings of A priori algorithm and frequent pattern growth algorithm are described and researched accordingly, and an improved algorithm for learning A priori association rules based on matrix is proposed. By analyzing the international commercial dispute resolution mechanism in the Internet era, this article constructs an international commercial dispute resolution mechanism platform. By analyzing the process of disputes in foreign trade e-commerce transactions, this article proposes a method to automatically capture gateway dispute information through automated management system tools to improve the efficiency of the gateway. The algorithm in this paper scans the transaction database only once, and according to the matrix structure, it performs the logical AND operation of the row vector representing the data item in the matrix, and it learns frequent item sets quickly and accurately. The entire process effectively reduces the time consumption and space occupation required for frequent item set learning. According to the effective measurement method of the association rules, the effective association rules are extracted from the frequent item set. Through the realization of functions such as allocation, viewing, dispute handling, and statistics in the management tool, the progress and processing efficiency of the gateway dispute handling can be effectively managed. In addition, this article gives the dispute handling process of the website itself, adds the process of automatic completion of disputes by buyers and sellers through agreements, and improves the tools of the CS manual handling management system. The data results show that the method in this paper greatly improves the efficiency of handling disputes in foreign trade e-commerce transactions.

Exploring the future of commercial dispute resolution in Asia: Accelerating efficiency and effectiveness in ADR

AbstractSince 2017, Japan has rapidly developed its hard and soft infrastructure to accelerate the use of alternative dispute resolution (ADR) in Japan, such as establishing the Japan International Dispute Resolution Center and the Japan International Mediation Center, Kyoto, as well as amending the Foreign Lawyers Act. The legislative process to amend the Japanese Arbitration Act is underway and discussions to accede to the Singapore Convention are ongoing. Mediation and settlement discussions involving judges during the litigation process are traditionally common in Japanese court practices, which would have some implications for investor–state mediation, which is a recent hot topic in the field of investor–state dispute settlement. Numerous means of further improving the efficiency and effectiveness of ADR proceedings have been discussed globally, including mid-stream conferences, Calderbank offers, the use of mediation in complex disputes, and the advanced use of Arb-Med-Arb proceedings utilizing party-appointed arbitrators.