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Topic 10: DISPUTE RESOLUTION
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One of useful things that parties can use a contract to do is to agree how disputes are to be adjudicated. This Topic will review the use of 代写留学生论文these clauses and offer some suggestions about how they are can be used to best effect.
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STYLE CLAUSE:
“Should any disputes, controversies or differences arise between the parties, out of or in relation to this Agreement, the Parties will take all reasonable steps to negotiate a settlement of the dispute within 28 days of the dispute arising.
If the Parties fail to reach a negotiated settlement within 28 days of the dispute arising then the Parties or either of them, will submit the dispute to mediation under the rules of the Centre for Alternative Dispute Resolution in London. The place of mediation will be Edinburgh.
If the Parties fail to resolve the dispute between them through mediation within 28 days of the reference to the Centre for Alternative Dispute Resolution (or within such other time as both Parties agree in writing), then the dispute will be referred to Arbitration. Arbitration will be governed by the Rules of the International Chamber of Commerce (“ICC”) in Paris. The venue of the arbitration will be Edinburgh. The arbitration will be conducted in English and all written pleadings before it will be in English.
Parties are obliged to provide all facilities and information requested relating to the dispute to the arbiter or arbiters. No refusal or default by any Party or arbiter will be permitted to obstruct or impede the arbitration process.
The arbiter or arbiters have power to make awards of damages for breach of contract, to enforce performance, to award compensation and to award interest on any monetary award, and to decide upon and award expenses. Decisions of the arbiters (where more than one is appointed) may be given by majority and shall be final and binding. The decision of the arbiter or arbiters may be enforced through a court of competent jurisdiction.”
Turning to discuss some of the issues which need to be addressed when considering such a clause:
Dispute clauses in commercial contracts are often neglected and are often stuck on as an afterthought. Few commercial lawyers have any direct litigation experience and few will ask a litigation lawyer for advice on such clauses when drafting a contract. As a result, they are often added as an afterthought.
The consequences of a lengthy cross border dispute can costly, time consuming and damaging:
What risk management issues are there here?
Three main questions to think about when drafting/ revising a dispute resolution clause in a contract: where? ; according to which law?; how?
Where?
– Particular problem in cross border transactions
– Factors which might influence preference
inconvenience of location: cost implications
familiarity with legal system
procedural rules
language
reliability of legal system
advantage/disadvantage of law content: damages, limitation, jury trial
According to which law?
– Choice of law could be different to venue
– This happens frequently in arbitration: English law is a popular choice
– Otherwise, usually law of place where dispute being resolved
How?
Three major methods of dispute resolution:
