Settlement Of Commercial Disputes Research Articles

Resolving Commercial Disputes in India: Focus on ‘Mediation’ as an Effective Alternative ‘Towards Ease of Doing Business’

Disputes are inevitable in commercial transactions and this gets further complicated when it comes to cross boundary commercial transactions. Mostly it has been an experience that the parties to resolve commercial disputes including an international commercial transaction dispute utilize arbitration. Institutions like ICC, LCIA and ICSID have evolved and are handling the matters relating to international commercial disputes. While one may say that, the international dispute settlement mechanism in commercial matters is invariably ‘arbitration’, as parties do not prefer to choose litigation due to its inherent lacunae of delay and costs, the new methods or alternate methods of dispute settlement are still evolving. Mediation is one of those methods and has proven itself to be unique and quite successful settlement process when conducted by a skilled mediator. As regards its utility, mediation is more useful compared to arbitration because of its principle of parties themselves coming to a settlement and ‘without prejudice’ process. However, the parties to a commercial dispute or the international commercial transaction to subject their disputes for settlement have not accepted mediation that readily. The present paper would explore the reasons behind that by examining the existing literature and efforts put in by the countries in promoting mediation as a method of settlement of commercial disputes. It would be explored whether ‘mediation’ may emerge as an important alternative to the dispute settlement mechanism for settling commercial disputes.

Режим требований об убытках в условиях расширения территориальной юрисдикции Российской Федерации и вопросы международного частного права

INTRODUCTION. The proliferation of legislative, judicial and general administrative jurisdiction to Crimea in the spring of 2014 highlighted a number of new issues in the regulation of civil law relations in the international and local sphere that faced the courts in the Russian Federation, as well as the need to make adjustments to approaches related to the recognition of foreign state law acts and enforcement of foreign judgments. In the field of private international law, in addition to the mentioned, an understanding of the phenomenon of collision of various multi-national norms arose not in space, which is the central subject of this science, but in time. MATERIALS AND METHODS. The works of Russian and foreign authors are the material of the article. In this work historical, inductive, and comparative research methods were used. RESEARCH RESULTS. This article is on the subject of conflict of law’s regulation pertaining to the claims of losses, the right from the Crimea territory before and after its reunification with the Russian Federation on the 18th of March 2014. The author presents recommendations relating to legislative solutions and amendments to civil and criminal law regulation in line with consideration of judicial competence of national courts in the light of Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, signed on the 22nd January 1993 in Minsk by participants of CIS, as well Agreement on Settlement of Commercial Disputes of 20th of March 1992. DISCUSSION AND CONCLUSIONS. The author concludes that in view of coming the new jurisdiction in annexed Crimea the foreign elements that arose before this event disappear, and therefore it is necessary to be guided by its legal order in the absence of its regulation in question. The Anglo-Saxon concept of vested rights is not applicable in this exceptional case.

EFFECTIVE SYSTEM OF COMMERCIAL DISPUTES RESOLUTION AS A PREREQUISITE OF ECONOMIC PROGRESS

Urgency of the research. The current state of the jus-tice system in Ukraine does not provide a quick and justified resolution of disputes that is particularly acute for business circles. Given the lack of qualitative changes in the area of justice in the course of ongoing reform of the judiciary and procedural legislation, the preservation of a critically low level of trust in the judiciary, the state should offer the soci-ery a new social contract on the procedure for resolving legal disputes in the state, which must necessarily include the institutionalization of alternative methods of resolution disputes, first of all, mediation. Target setting. The introduction of alternative meth-ods of dispute resolution should be based on an argumen-tated conceptual model that will ensure an effective and fair solution to legal disputes. Actual scientific researches and issues analysis. The scientific works of leading foreign and domestic re-searchers Yu. Prytyka, V. Reznikovf, Y. Demchenko, G. Braun, A. Marriot, R. Reuben are devoted to separate as-pects of the settlement of commercial disputes and the for-mation of a system of alternative dispute resolution. Uninvestigated parts of general matters defining. At present, there is no national concept for resolving commercial disputes, the place of alternative dispute resolu-tion, in particular mediation, in the legal system of Ukraine has not been formulated. The research objective. There is a need to formu-late a new concept of a dispute resolution system that would ensure that citizens and legal entities have a real choice of an effective and fair dispute resolution procedure. The statement of basic materials. The formation of the Ukrainian concept of the dispute settlement system must necessarily take into account the national socio-cultural and legal features. The necessity of institutionaliza-tion of mediation is proved by the adoption of the relevant law and the use of mediation procedures by public authori-ties in state-investor disputes and disputes with business entities. Conclusions. The introduction of alternative methods of resolving disputes in the legal system of Ukraine should ensure an effective and justified settlement of disputes and, as a consequence, create the preconditions for economic growth.

A Comparative Analysis of the Principle of Arbitration Under the English Common Law and Islamic Law

An alternative to incurring the expense of court or tribunal proceedings is for the parties to a dispute to take their case to arbitration. Arbitration involves referring a dispute to a third party for settlement. The decision reached by the settlement of this dispute is binding on the parties. Arbitration is the resolution of dispute outside the courts wherein the parties to a dispute refer it to one or more persons by whose decision they agree to be bound. In modern history, arbitration is considered one of the most important means for the settlement of commercial disputes, particularly the dispute of international trade and investment. Arbitration which is known as “Takhim” under Islamic law is recognized under the Islamic law as a method for the settlement of disputes.

UNCITRAL and the Enforceability of iMSAs: The Debate Heats up - Part 2

This is the second of four in a series of blog posts on the Kluwer Mediation Blog. They were published in conjunction with the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’.) In terms of the type of instrument, the Working Group is considering the possibility of a convention, model provisions, or guidance text. Draft provisions have been prepared without prejudice to the form of the final instrument but on the assumption that the instrument would be a stand-alone legislative text. More than a decade ago, the Working Group in drafting the UNCITRAL Model Law on International Commercial Conciliation (2002) was not able to agree on a uniform way forward for the enforcement of iMSAs. This has been one of the main criticisms of the Model Law. So it is perhaps not surprising that the issue remains controversial. These four posts are written jointly with Nadja Alexander and Anna Howard to highlight the core concerns about the move towards a multilateral convention and the responses or counterarguments to those concerns. We focus on the legal form of a convention rather than a model law or guidance text as this focus allows us to be more specific in our comments. We have placed what seem to be the main concerns about the drive towards a convention into four categories, namely concerns relating to: 1.the legitimacy of such a convention; 2.the impact of such a convention on the objectives of, and values underpinning, the mediation process; 3. the justifications for such a convention; 4.the application of an arbitration enforcement framework to iMSAs particularly in light of recent trends in arbitration. This second post focuses on the impact of the convention on the objectives of mediation.

UNCITRAL and the Enforceability of iMSAs: The Debate Heats Up

This is the first of four in a series of blog posts on the Kluwer Mediation Blog. They were published in conjunction with the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’.) In terms of the type of instrument, the Working Group is considering the possibility of a convention, model provisions, or guidance text. Draft provisions have been prepared without prejudice to the form of the final instrument but on the assumption that the instrument would be a stand-alone legislative text. More than a decade ago, the Working Group in drafting the UNCITRAL Model Law on International Commercial Conciliation (2002) was not able to agree on a uniform way forward for the enforcement of iMSAs. This has been one of the main criticisms of the Model Law. So it is perhaps not surprising that the issue remains controversial. These four posts are written jointly with Nadja Alexander and Anna Howard to highlight the core concerns about the move towards a multilateral convention and the responses or counterarguments to those concerns. We focus on the legal form of a convention rather than a model law or guidance text as this focus allows us to be more specific in our comments. We have placed what seem to be the main concerns about the drive towards a convention into four categories, namely concerns relating to: 1. the legitimacy of such a convention; 2. the impact of such a convention on the objectives of, and values underpinning, the mediation process; 3. the justifications for such a convention; 4. the application of an arbitration enforcement framework to iMSAs particularly in light of recent trends in arbitration. This first post focuses on the legitimacy of a proposed multilateral convention on the recognition and enforceability of international mediated settlement agreements.

UNCITRAL and the Enforceability of iMSAs: The Debate Heats up - Part 4

This is the last of four in a series of blog posts on the Kluwer Mediation Blog. They were published in conjunction with the 65th session of the UNCITRAL Working Group II on arbitration and conciliation. The Working Group has turned its attention to the settlement of commercial disputes and in particular on the preparation of an instrument on the enforcement of international commercial settlement agreements resulting from conciliation. (Note that in UNCITRAL speak, the term ‘conciliation’ is used interchangeably with ‘mediation’.) In terms of the type of instrument, the Working Group is considering the possibility of a convention, model provisions, or guidance text. Draft provisions have been prepared without prejudice to the form of the final instrument but on the assumption that the instrument would be a stand-alone legislative text. More than a decade ago, the Working Group in drafting the UNCITRAL Model Law on International Commercial Conciliation (2002) was not able to agree on a uniform way forward for the enforcement of iMSAs. This has been one of the main criticisms of the Model Law. So it is perhaps not surprising that the issue remains controversial. These four posts are written jointly with Nadja Alexander and Anna Howard to highlight the core concerns about the move towards a multilateral convention and the responses or counterarguments to those concerns. We focus on the legal form of a convention rather than a model law or guidance text as this focus allows us to be more specific in our comments. We have placed what seem to be the main concerns about the drive towards a convention into four categories, namely concerns relating to: 1. the legitimacy of such a convention; 2. the impact of such a convention on the objectives of, and values underpinning, the mediation process; 3. the justifications for such a convention; 4. the application of an arbitration enforcement framework to iMSAs particularly in light of recent trends in arbitration. This final post focuses on the application of an arbitration framework to iMSAs.

Procedures in solving economic

Problem and its relevance. Recently among national legal scholars and practitioners is growing interest in different ways of settling disputes between economic entities outside the state judiciary. Chapter II of the Commercial Code of Ukraine of 06.11.1991 fixed rule that economic agents have the right to decide controversial issues in the pretrial order. Thus, in accordance with Art. 5 GPK Ukraine side measures apply pre-trial settlement of commercial disputes by agreement among themselves, that conciliation is introduced as one of the alternative ways of resolving disputes. Alternative methods of dispute resolution allowing entrepreneurs to use additional; often more flexible legal mechanisms to resolve conflicts. Practices of conciliation in resolving commercial disputes shows their progressive enough as compared to the commercial courts they have certain advantages. First, the economic efficiency in solving conflicts, thus promoting economic exchange, stabilization of economic relations, improvement of business results. Second, the empowerment of the right to the protection of non-judicial entities and access to new ways of resolving disputes. Thirdly, the restriction of monopoly of state courts and to some extent reduce corruption pressure on businesses. Fourth, democratic review process disputes - election of judges by agreement of the parties, the impact on the formation of rules disputes and so on. Purpose of the article - to consider the current conciliation procedures applied in resolving commercial disputes. Analysis of research and publications. Some attention to the problems of reconciliation in his writings are paid to domestic and foreign authors as: A. Bobrov, Gojko O. Davydchenko D. Zozuliak Yu Zaharyascheva I. Eremenko G., Miller, D., K. Nosyryeva and others.

English

Arbitration is a private exercise based on the agreement of the parties and is administered by appointed ad hoc arbitral tribunal or established arbitral centre or institution. International commercial arbitration which is one of the procedures for resolution of international commercial disputes is patronized by many commercial men and women including corporate bodies and states. The essence of this paper is to inquire into the obstacles confronting this international lucrative procedure for settlement of commercial disputes between private individuals, private individuals and state, and between state and state parties. This paper will among others consider the obstacle of national courts, cost of arbitration, nationality of the arbitrators, political instability and unrest, etc. Key words: Obstacles, international commercial arbitration, law.

Commercial Arbitration : Factors Making it Lose out Against other Processes

Today the problems in litigation processes are well recognized. Arbitration’s place in alternative process is also not free from controversy. Arbitration has become one of the principal means of settlement of commercial disputes especially in international trade; however, it is not unreasonable to predict that its original value against other processes is being lost. The principal objective of this article is to find out the various vehicles that are responsible for losing out against other alternative methods. It also attempts to explore how and why do such factors facilitate it to lose its credit. The parties of disputes especially commercial disputes will increasingly turn to arbitration for resolution, if arbitration can act with positive results including less adversarial relationships, faster decisions and lower dispute resolution costs. The paper is mostly analytical in nature and largely based on secondary materials of law like books, articles, theses, and several online writings. Primary sources of law are also used in this study. The paper mainly focuses on certain issues of arbitration dealing with commercial disputes rather than arbitration conducted in other fields, but electronic commerce issues will not come under ambit of it.

Mechanism of Settlement Commercial Disputes (Adr) Specialisation in Oil and Gas in Globalisation

Commercial problems and disputes are an evitable occurrence in many international transactions. This article explains about the specialisation in oil and gas disputes and resolutions with evolution in settlement of commercial disputes mechanism with mention of evolution of the uniform law of protection of this mechanism because different commercial and legal expectation, cultural approaches, political ramifications and geographic situations are all source for disagreement and dispute between contracting parties. Where these disputes arise and they cannot be resolved by negotiations, they will need to be resolved in accordance with the legal process, which should have the confidence of parties or at least be in a forum that is acceptable to the parties. In such situations, parties in international commercial contracts frequently to ADR as a private, independent nature of commercial transactions have also undergone a significant transformation. Commercial activity is no more restricted to local markets. Even the smaller player in the market has to think globally. It is appropriate to identify and discuss the salient features of transformed contemporary commercial activity, because of the speedy commercial transactions, operation of markets, complexity among competition and influence settlement of commercial disputes in the resolution of globalisation.

Enforcement of Foreign Arbitral Award in Pakistan

A foreign arbitral award may be enforced against whom the award has been made in any on the three ways. A foreign arbitral award may be enforced: first, by filing a suit on the foreign award in the country in which the party has obtained and obtain judgment thereafter to enforce the foreign judgment against the judgment debtor; secondly, it may be enforced at common law as done in England; thirdly, under the provisions of Multilateral Conventions or Trade Treaties or Arbitration Service Agreements. The enforcement of foreign arbitral awards poses several difficulties and it is the successful enforcement of a foreign arbitral award only which brings to fruition the endeavors of a party in regard to it. Therefore, a foreign arbitral award as a mean of settlement of commercial disputes through arbitration depends upon its successful enforcement. It is clear that local laws of different countries make adequate provisions regarding the enforcement of arbitral award made in pursuance of arbitration agreement which are rendered within the country. As commerce and trade developed after the First World War, there was growing need felt for settlement of international commercial disputes and the Geneva Protocol on Arbitral Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 were concluded under the auspices of the League of Nations. Protocol means only a memorandum signed by negotiating parties which ultimately assumes the form of a Convention. The Geneva Convention of 1927 dealt with two aspects of arbitration. The first is in regard to the Recognition of Arbitral Clauses and the second is in regard to the execution of Foreign Arbitral awards. India ratified the Geneva Convention of 1927 in the year 1937. In consequence, India enacted the Arbitration (Protocol and Convention) Act of 1937, which came into operation on the 4th day of March, 1937 and continued to be enforced in Pakistan till 2005. After the Geneva Convention of 1927, the major International Convention on Commercial Arbitration was adopted in June 10, 1958, at New York. It is a multilateral agreement on the Recognition and Enforcement of foreign arbitral awards. Pakistan being signatory to the New York Convention could not rectify it till 2005 when it brought in municipal legislation in the shape of Ordinance for the application of the Convention in the country under the concept of dualism. This Ordinance, which lapses after four months, is being re-promulgated till 2010.

Judicial review on the application of setting aside foreign-related arbitral award in China

From recent practice of judicial review on international commercial arbitration in Chinese People’s Court from 2002 to 2010, it can be found that the Chinese People’s Court tends to favour the international commercial arbitration and is creating a favourable environment to arbitration, which could be revealed in judicial review on the application of setting aside the foreign-related arbitral award. In view of the importance of arbitration in international civil and commercial dispute settlement, empirical studies on judicial review of international arbitration in Chinese People’s Courts are of practical significance. The current developments of the judicial review on the application of setting aside foreign-related arbitral awards should be emphasised. In addition, the report system of Chinese People’s Court on the judicial review of international arbitral award is important but still has defects, which should be reformed and the appeal system need to be established.

A Power Struggle or the Assertion of Rights: Application of the Lex Mercatoria in International Commercial Arbitration

A prominent attribute of international commercial dispute in contemporary times is the notably increasing occurrence of the usage, particularly by arbitral tribunals, of ‘anational’ systems of law to the settlement of such disputes, instead of municipal law(s) of one or more countries. The literature reveals that, this is because an arbitrator has a responsibility to apply the rule or choose the solution, which appears to him to be the most appropriate and equitable. Since arbitral tribunals are not constricted in the choice of law for the settlement of disputes, a tribunal is far more likely to adopt an ‘anational’ system of law in the course of international commercial dispute settlement. One such usage has been the application of the lex mercatoria, as the law applicable to the merits of a dispute.

Structural Flaws in the Commercial Dispute Settlement Mechanism between North and South Korea

Structural Flaws in the Commercial Dispute Settlement Mechanism between North and South Korea

Anthropology and International Law

International law, including human rights law, has expanded enormously in the past century. A growing body of anthropological research is investigating its principles and practices. Contemporary international law covers war and the treatment of combatants and noncombatants in wartime; international peace and security; the peaceful settlement of disputes; economic arrangements and trade agreements; the regulation of the global commons such as space, polar regions, and the oceans; environmental issues; the law of the sea; and human rights. This review demonstrates how anthropological theory helps social scientists, activists, and lawyers understand how international law is produced and how it works. It also shows the value of ethnographic studies of specific sites within the complex array of norms, principles, and institutions that constitute international law and legal regulation. These range from high-level commercial dispute settlement systems to grassroots human rights organizations around the world.

The Regional Dimensions of Barriers to Business Transactions in Russia

This analysis, based on more than 70 company case studies across 13 Russian regions during the spring, summer and fall of 2000 and the summer of 2001, examines four key issues that Russian firms face in carrying out business transactions in Russia's regional markets: (i) the state of inter-enterprise competition; (ii) the regulatory regime governing the delivery of infrastructure services (with a focus on the telecom and Internet sector); (iii) the sources and use of corporate finance; and (iv) the efficacy of the court system in fostering the settlement of commercial disputes. The study formulates policy recommendations for each of the areas analyzed. In so doing it sheds light on salient inter-regional differences in existing policy frameworks and in the structure and nature of the country's enterprise sector, as well as on how regional governments and firms both respond to and shape these differences. The study also highlights the evolution of inter-regional policy and economic changes over time, assessing the extent to which, two years after the 1998 crisis, enterprise restructuring at the local level has been affected by the devaluation of the ruble.

Sultanate of Oman: Recent Developments

69 SULTANATE OF OMAN: RECENT DEVELOPMENTS* RESIDENCE OF FOREIGNERS Royal Decree No. 16 of 1995 promulgates a new law on the residence of foreigners in the Sultanate and repeals Law No. 38 of 1973, the previous enactment on the subject. LABOUR LAW Royal Decree No. 17 of 1995 amends the provisions of the Labour Law that deal with the settlement of disputes. The Decree provides that the Authority for the Settlement of Commercial Disputes shall be responsible for hearing disputes that are referred to it by departments and labour offices in accordance with the rules and procedures stipulated in the

The Role of ADR in the Settlement of Commercial Disputes

(1994). The Role of ADR in the Settlement of Commercial Disputes. Asia Pacific Law Review: Vol. 3, No. 1, pp. 1-19.

Euro-Arab Arbitration 11 (Proceedings of the Second Euro-Arab Arbitration Congress, Bahrain) edited by Dr. Fathi Kemicha

Euro-Arab Arbitration 11 (Proceedings of the Second Euro-Arab Arbitration Congress, Bahrain), edited by DR FATHI KEMICHA. Published by Graham & Trotman, London (1989, 227 pp. Incl. List of Participants and Contents ). Hardback £61.50; US$117 . In addition to its Opening and Closing Sessions, the Euro-Arab Arbitration II seminar (called ‘Congress’), held on October 26–28, 1987 in Bahrain, had the following structure and major themes. First session: General Introductory Report: Arbitration in the Euro-Arab Commercial Relations: Reflections on the Philosophy of Commercial Arbitration. Second session: Rules of Ethics of Arbitration: Legal and Moral Obligations of the Arbitrator; Legal and Moral Obligations of the Counsel and of the Parties. Third session: The Arbitral Procedure and the Rules of Evidence: The Internal Rules of Procedure in the Arab Countries and the Arbitral Procedure; the Rules of Evidence in the Arbitral Procedure: comparative study. Fourth session: The conditions of validity of the Arbitral Award: Condition of Validity in Conventional ( sic ) and Comparative Law; Conditions of Validity in the Law and Practice of Arab Countries. Fifth session: Commercial Arbitration Principles and Procedure: An applied Study on Bahrain's Experience in Arbitration and Settlement of Commercial Disputes; Final Reports. Each session was introduced by a short address from an ad hoc chairman, followed by a panel discussion (second, third and fourth sessions) and concluded with a general discussion. The original speeches were given in Arabic, French or English. Strangely, the General Discussions are translated in extenso in both languages, but the Panel Discussions are published in their original version (English or French). The papers are summarized in translation, often incompletely in a cryptic shorthand, even though they bear the ambitious title of Synthese en francais . The synthese and synopsis are of unequal length and value and often do not do justice to the contents of the speeches. Some papers deserve full translations. ### First Session Professor Mohsen Chafic's address, ‘Reflections on the Philosophy of Commercial Arbitration’, is somewhat disappointing in as much as it does not tackle the real problems, e.g. the particular difficulties …