Organic Name Reactions for the students and aspirants of Chemistry12th.pptx
Resolution of intl commr disputes
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