5.1 Critical Analysis
International commercial arbitration has evolved, primarily, against the background of two unifying international traditions: the private international legal tradition, directed at the harmonization of laws; and the public international law tradition, committed to reducing global barriers to trade. International Commercial arbitration is the most widely used tool for resolution of trade or commercial disputes. The effort should be made to tackle the problems which will benefit commercial transaction activities. Most of the domestic courts were very slow in dealing with Arbitration cases. Therefore, parties now resort to Arbitration in order to avoid lengthy and complex litigation procedure.
The Study findings revealed
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America, Europe and India, all have incorporated the provisions of these conventions in their domestic laws. However, due to difference in Domestic laws or state laws, the problem of enforcement of awards still persists in all these jurisdictions. However, to maintain the balance, in each case it may depend upon the law of jurisdiction, facts of the case and also the adjudicators. Keeping up with the UNCITRAL Model Law, International Jurists are strictly against judicial interference in an arbitral agreements. The parties to the dispute should look at the advantages as well as disadvantages of the arbitration and other dispute resolution methods, and choose the one to adopt in a particular case. In present world, a properly enforced award should be respected. It should be final and binding and the parties should abide by it. There should not be any problems in rendering and enforcing an award in other …show more content…
A practical solution to avoid this issue is to include an Immunity Waiver Clause in the arbitration agreement. States are generally not comfortable with this clause; however, this puts an obligation on the state to not use this as a defence during enforcement of awards. Once any State agrees to arbitration, it is an assumed principle that the State has waived its Sovereign Immunity. Under International Conventions like New York Convention, if the state enters into an agreement, it is treated as if the State has waived its Immunity and can be taken up as strong evidence against the State. The situation is difficult as “national courts (dealing with enforcement of awards) refuse to build up special rules and regulations for the enforcement of arbitral awards and they are guided by the principles applicable in judicial proceedings”. Therefore it is probable on some occasions for litigants to conquer the hindrance that are present while enforcing an award against
Although the arbitrator’s final awards are legally binding, an unhappy party of arbitration may still go to court under certain circumstances. As mentioned by Fallon & McConnell, “unless one party protests that there was a gross injustice, collusion, or fraud, arbitration that is specified by a contract can be converted into a legal judgment. This requires a petition to the appropriate court” (n.d., p. 388). As expected, this can become costly for the person who is seeking to appeal.
Arbitration is a method to submit a resolution in an arbitral, rather than a judicial forum. For non-labor issues, arbitration can be a less expensive solution. One example is The Home Owners ' Warranty program. A program which aimed to resolve disputes between homeowners and builders. The program was designed between the Home Owners ' Warranty programs of the National Association of Home Builders. This program started in 1973 as a method of formally resolving disputes through arbitration. The program provided a warranty program, using mediation, and arbitration to resolve differences. Before the warranty program was created, the National Association of Home Builders came to the Federal Mediation and Conciliation Service for advice and assistance on dealing with homeowner disputes. Over the years, the program has expanded across the country through the Magnuson-Moss Bill, assisting the Federal Trade Commission on issuing rules on warranty’s and guaranties. The arbitration occurs while looking at the evidence of a dispute objectively for the best solutions (Barrett, 1985, p. 32).
Since November 2015, after Justice Marks vacated the RSDCs previous decision, the Nationals have attempted to compel MASN to return to arbitration before the RSDC. The Nationals claimed that a footnote in the Justice’ decision meant that MASN needed to submit to arbitration if the Nationals just changed their lawyers. On the other hand, MASN felt that the sides should agree to submit this case before a different arbitral body and thereby avoid the appeals process. Failing this, MASN wanted its appeal to be heard before a second arbitration case would be heard before the RSDC.
Kolkey, D. M., Chernick, R., & Neal, B. R. (2012). Practitioners handbook on international arbitration and mediation (3rd ed.). Huntington: JurisNet.
Finally, based on common law, the principle of comity and equity may oblige the courts to recognize foreign arbitral award, regardless where the arbitration was seated. The US Courts
Business is continually growing on a global level leading to international business partnerships, agreements, and trades. During these types of business relationships disputes are common (University of Phoenix, n.d.). If a dispute occurs one party may chooses to take legal action against the other party. Making the decision to take legal action businesses must make considerations prior to proceeding. Making the right decisions can build a strong relationship between parties. Considerations to take include contracts, local law, and local customs and culture. Steps may be taken to minimize risks in international business agreements as well.
After carefully considering the situation in both plaintiff (Eunice) and defendant (RFYL), arbitration should be an effective Alternative Dispute Resolution in
this essay I will attempt to examine and analyse the effectiveness of international courts and
Arbitration has existed in America for centuries. The Native American Indian tribes were believed to have used arbitral process to settle disputes between the tribe and those outside the tribe. “Long before the white man ever arrived in what is now the United States early Native American tribes used arbitration as not only a means to resolve disputes within the tribe but also as a means to resolve disputes between different tribes”. (laborstudies and research p.2). The concept arbitration with no doubt extended to the America from the European continent, largely from England, after she colonizing America. Arbitration among merchants were common, since it proved more efficient and effective that the courts during that period. The first US
One of the foundations of arbitration is that awards rendered are final and not subject to appeal before the courts. In this respect, Article 5 of the UNCITRAL Model Law provides for minimal intervention, and says, “In matters governed by this Law, no court shall intervene except where so provided in this Law“. As a result, the grounds upon which a court may set aside an award or refuse to recognize and enforce the same are limited. Article 34 of the Model Law and Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provide the restrictive grounds for such relief.
while still providing an opportunity for an arbitrator to issue a final and binding award in the
Arbitration is legal technique used to resolve any disputes outside of the courts. Arbitration allows for speedy and cheap resolution of any disputes, the parties involved in a dispute agree to appoint a third person (arbitrator) who will hear their testimonies, and look into the evidence they provide. The arbitrator's decision cannot be challenged in a law court as it is considered final and the parties involved have to accept the decision (Brams & Merrill, 1986). There are only very limited circumstances where the decision of an arbitrator can be challenged, and this is mostly if there can be proof from one of the parties showing that the arbitrator was biased in their decision or ruling. The chosen arbitrator will be an experienced person in the area of the dispute.
The World Trade Organization (“WTO”) Dispute Settlement System and the International Centre for the Settlement of Investment Disputes (“ICSID”) are two of the most widely used methods of international dispute settlement.
The nature of international commercial arbitration has a close connection to the party autonomy, which is also expressed in the right of the parties to choose the law that is to be applied by the arbitrators to the dispute between them. The same right is given to the parties concerning the arbitration agreement.
ADR is useful in resolving virtually all genres of disputes by providing speedier, enforceable decisions through Arbitration, Mediation, Early Neutral Evaluation and other hybrid mechanisms. The presence of cost-effective and predictable ADR mechanisms capable of resolving complex disputes help to bolster the confidence of litigants within the country and therefore stimulates trade and investment both internationally and locally.