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Alternative Dispute Resolution in a Global Setting
Alternative Dispute Resolution in a Global Setting
A detailed discussion of conflict settlement processes should be included in the negotiation of every international contract. However, corporate lawyers also think the settlement of conflicts too little, too late, because of either superstition or etiquette. As a result, the unhappy experiences of U.S. firms trying to resolve grievances or to impose properly made decisions in international courts may be packed with volumes, where the processes are new, the language is rarely English, and the process can take years. Non-U.S. For Partner, the possibility of litigation "American-style" is far more overwhelming.
Fortunately, an alternative exists. By using correctly drawn-up arbitration agreements, the risk that today's international opportunity will become tomorrow's international legal nightmare can be significantly reduced. The purpose of this article is to argue that these provisions should be de rigueur in most international agreements, in view of the many benefits that arbitration provides over litigation in the international arena.
The Advantages of Arbitration in the International Context:
1. Greater Client Confidence
From the viewpoint of the customer, consider an international conflict. For businesspeople, litigation is rarely a comforting prospect in any court. The normal pressures and uncertainties of litigation are exacerbated in the international context by the unfamiliarity of foreign rules, processes, and judges; the apprehension of the partiality of 'home turf'; and the need to entrust the case to foreign counsel.
2. Assurance of a Neutral Forum and Impartial Administration
Arbitrations are a result of the arbitral agreement of the parties. The parties regulate the whole process by their agreement, including when and under which administration the arbitration will take place. This system guarantees that no party can receive a 'home turf advantage' regardless of where the hearings are conducted. In reality, most foreign arbitral organisations' rules expressly mandate that the sole arbitrator or the moderator of an arbitral tribunal be from a country impartial to the parties to the dispute. Since the parties have agreed to the arbitral tribunal, questions of personal jurisdiction and process operation, frequently barriers to international litigation, are avoided.
3. Simplicity and Flexibility of Procedures
The international arbitration procedures, unlike the standardized protocols of the national legal systems, are less structured and allow the parties to adapt the procedures to the unique requirements of their dispute. International laws incorporate the methods of civil and common law to the compilation of proof and other issues. In general, this blended approach requires fair limits on paper exchanges and the use of witness statements instead of depositions, leading to more cost-effective pre-hearing disclosure and discovery procedures. Arbitration laws give arbitrators broad powers, including temporary and conservatory steps, with regard to the conduct of the proceedings and the establishment of relief.
4. Enforceability. The New York Convention
Enforceability is the greatest value of international arbitration. International arbitration arrangements and awards are enforceable internationally under the New York Convention, the foundation of the international commercial arbitration system.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
- Advantages of Arbitration in the International Context
- Assurance of a Neutral Forum and Impartial Administration
- Greater Client Confidence
