Resolution of intl commr disputes

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  • 1. International Dispute Resolution  Litigation  Differs within countries  Complication of evidence, witnesses and documents  Judicial system may be different from country to country  Some courts more influenced by political pressures  Not enforceable outside of country  Treaties/Conventions may assist potential parties  Contract clauses assist courts in enforcement of claims  Usually need “minimum contacts” for jurisdiction  International Court of Justice (ICJ)  Only nations have standing - not individuals  Nations may make claims on behalf of persons  No mandatory compliance requirement  UN Security Council must enforce  Arbitration: 3rd neutral party decides outcome, which is binding  Mediation: 3rd neutral party “suggests” outcome, which is not binding 4/25/2014 1 tenaliramaadvocate@yahoo.co.in
  • 2. Resolution of International commercial/business disputes  Disputes: Valuable things at risk, such as:  Time  Money for expenses incurred trying to resolve dispute, lost earnings  Business relationship and future earnings  Loss of market to competition  Loss of reputation  Freedom if a criminal offence and dispute is with authorities/society.  Political issues between states and countries 4/25/2014 2 tenaliramaadvocate@yahoo.co.in
  • 3. Methods of dispute resolution  Prevent the dispute by risk management  Avoid some disputes by drafting contracts well  Negotiation  Mediation and conciliation  Expert determination  Arbitration  Litigation/Adjudication 4/25/2014 3 tenaliramaadvocate@yahoo.co.in
  • 4. Legal role in Risk Management  Objective is to avoid dispute or minimise damage resulting from a dispute  Must understand business  Conduct due diligence to ascertain main areas where dispute/legal liability likely to arise  Appreciate bargaining position and opportunities/limitations 4/25/2014 4 tenaliramaadvocate@yahoo.co.in
  • 5. Negotiation  Win/win mentality means both parties must come out of the negotiation with an improvement in their situation. Skill lies in formulating such an outcome.  Win/loss means that one side is better off and one worse off. May resolve immediate dispute, but might lead to loss of relationship, or retaliation later. 4/25/2014 5 tenaliramaadvocate@yahoo.co.in
  • 6. Mediation  Parties appoint a person who assists them to reach a negotiated resolution.  Often a person with skills to work out win/win solution to particular issue  Puts someone in between warring parties and can dilute poisonous atmosphere to enable productive consideration of issues  Not binding on parties unless reflected in a formal settlement agreement 4/25/2014 6 tenaliramaadvocate@yahoo.co.in
  • 7. Expert Determination  Sometimes resolution of a single issue at base of dispute can resolve dispute  E.g. specification/qualities/existence of a substance or state of affairs, a legal/accounting/scientific opinion on a particular matter  Parties nominate an expert or panel to give opinion on that single matter  Can agree on “papers only” or independent tests, as appropriate. 4/25/2014 7 tenaliramaadvocate@yahoo.co.in
  • 8. International Treaty obligations  Specialist Dispute Resolution bodies and rules  WTO  WIPO-Domain name disputes-cyber  squatting  UNCITRAL Model Arbitration law 4/25/2014 8 tenaliramaadvocate@yahoo.co.in
  • 9. WTO dispute settlement understanding (DSU)  Came out of Uruguay Round  Clearly defined rules and timetables  Parties/countries first discuss.  First WTO stage is good offices, conciliation.  Then a panel and endorsed (or rejected) by WTO membership.  Appeals on points of law are possible. 4/25/2014 9 tenaliramaadvocate@yahoo.co.in
  • 10. DSU timetables 60 days Consultation, mediation 45 days Panel set up, appointments 6 mths Panel hears dispute and reports 3 wks Panel reports to WTO members 60 days Dispute Settlement Body adopts report (if no appeal) TOTAL 1 year 60-90 daysAppeals report 30 days Dispute Settlement Body adopts appeals report. TOTAL 1.25 years 4/25/2014 10 tenaliramaadvocate@yahoo.co.in
  • 11. How the panels work  Each side presents case in writing to panel  First hearing-complaining country and responding country present case  Rebuttals-written and oral  Experts, if appropriate  Draft panel report given to both sides  Interim report to both sides  Review for two weeks  Final report given to both sides and 3 weeks later to all WTO members 4/25/2014 11 tenaliramaadvocate@yahoo.co.in
  • 12. Remedies?  Obligation on parties to respect ruling  Trade sanctions possible e.g. See www.wto.org and go to Case Studies Thailand: Conciliating a Dispute on Tuna Exports to the EC Dispute Settlement between Developing Countries-Argentina and Chilean Price Bands Pakistan’s Dispute Settlement with the US on Combed Cotton Yarn exports. 4/25/2014 12 tenaliramaadvocate@yahoo.co.in