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INTERNATIONAL LAW

INTERNATIONAL LAW. PARMA UNIVERSITY International Business and Development International Market and Organization Laws Prof. Gabriele Catalini. ARBITRAL JUSTICE. ARBITRATION.

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INTERNATIONAL LAW

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  1. INTERNATIONAL LAW PARMA UNIVERSITY International Business and Development International Market and Organization Laws Prof. Gabriele Catalini

  2. ARBITRAL JUSTICE

  3. ARBITRATION Is a form of alternative dispute resolution (ADR), a legal technique for the resolution of disputes outside the courts.

  4. Other form of ADR: • Collaborative law/divorce/family • Conciliation • Mediation • Online dispute resolution • Restorative justice

  5. Collaborative law/divorce • Collaborative law (also called collaborative practice, divorce, or family law) is a legal process enabling couples who have decided to end their marriage to work with their lawyers and, on occasion, other family professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of contested litigation.

  6. Conciliation • Conciliation: the parties to a dispute agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance and exploring potential solutions.

  7. Mediation • Mediation: is a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement. In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so.

  8. Online dispute resolution (ODR) • Online dispute resolution (ODR) is a branch of dispute resolution which uses the online technology to facilitate the resolution of disputes between parties.

  9. Restorative Justice • Restorative justice (also sometimes called "reparative justice”) is an approach to justice that focuses on the needs of victims and offenders, instead of satisfying abstract legal principles or punishing the offender. Victims take an active role in the process, while offenders are encouraged to take responsibility for their actions, "to repair the harm they've done—by apologizing, returning stolen money, or community service.”

  10. http://www.restorativejustice.org/

  11. Back to arbitration…

  12. Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. • For this reason, Arbitration is not the same as conciliation or mediation.

  13. Advantages e Disadvantages

  14. Advantages • When the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot "choose the judge" in litigation). • Arbitration is often faster than litigation in court. • Arbitration can be cheaper and more flexible for businesses.

  15. Arbitral proceedings and an arbitral award are generally non-public, and can be made confidential. • Because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments. • In most legal systems, there are very limited avenues for appeal of an arbitral award, which can be either an advantage (in that the dispute is over and done with, period), or a disadvantage (see below).

  16. Disadvantages • Arbitration may become highly complex • Arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party. • If the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case.

  17. Normally the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive. • In some arbitration agreements and systems, the recovery of attorneys' fees is unavailable. • There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned. • In some legal systems, arbitrary awards have fewer enforcement options than judgments.

  18. Arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement . • Rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law. • Discovery may be more limited in arbitration or entirely nonexistent. • Unlike court judgments, arbitration awards themselves are not directly enforceable.

  19. Arbitration agreement • Arbitration is a consensual process; a party cannot be forced to arbitrate a dispute unless he agrees to do so. • Such agreements are generally divided into two types:

  20. Agreements which provide that a dispute it will be resolved by arbitration. These will generally be normal contracts, but they contain an arbitration clause. • Agreements which are signed after a dispute has arisen, agreeing that the dispute should be resolved by arbitration.

  21. The arbitration agreement is ordinarily a clause in a larger contract. The dispute may be about the performance of a specific contract, a claim of unfair or illegal treatment in the workplace, a faulty product, among other various issues. People are free to agree to use arbitration concerning anything that they could otherwise resolve through legal proceedings.

  22. An arbitration provision in a contract might look like this (USA): “Upon written request of either Buyer or Seller, any controversy or claim between or among the parties hereto including but not limited to those arising out of or relating to the Sale, any of the sale documents, or any related agreements or instruments executed in connection with the Sale, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act (or if not applicable, the applicable state law), the Commercial Arbitration Rules of the American Arbitration Association, and the “Special Rules” set forth below unless both Lender and Borrower, in their respective sole discretion, agree in writing to mediate the dispute prior to submitting to binding arbitration. In the event of any inconsistency, the Special Rules shall control. Judgment upon any arbitration award may be entered in any court having jurisdiction. Any party to this Agreement may bring an action, including a summary or expedited proceeding, to compel arbitration of any controversy or claim to which this agreement applies in any court having jurisdiction over such action. The party that requests arbitration has the burden to initiate the arbitration proceedings pursuant to and by complying with the Commercial Arbitration Rules of the American Arbitration Association and shall pay all associated administrative and filing fees.”

  23. In Heyman, Justice MacMillan wrote: • "... the arbitration clause does not impose on one of the parties an obligation in favour of the other. It embodies the agreement of both parties that, if any dispute arises with regard to the obligations which the one party has undertaken to the other, such dispute shall be settled by a tribunal of their own constitution. And there is this very material difference, that whereas in an ordinary contract the obligations of the parties to each other cannot in general be specifically enforced and breach of them results only in damages, the arbitration clause can be specifically enforced by the machinery of the Arbitration Acts. The appropriate remedy for breach of agreement to arbitrate is not damages, but its enforcement."

  24. "Any dispute which might arise from or in relation to this contract, if not settled by negotiations, shall be settled by arbitration in accordance with UNICITRAL arbitration rules presently in force.“

  25. As Justice Diplock wrote in Compagnie Tunisienne de Navigation: "... an arbitration clause is generally intended by the parties to operate as a choice of the proper law of the contract as well as the curial law and should be so construed unless there are compelling indications to the contrary in the other terms of the contract."

  26. Rules of ICC International Chamber of Commerce PARIS - FRANCE

  27. http://www.iccwbo.org/court/

  28. Rules of Arbitration • http://www.iccwbo.org/uploadedFiles/Court/Arbitration/other/rules_arb_english.pdf

  29. UNCITRAL The core legal body of the United Nations system in the field of international trade law. A legal body with universal membership specializing in commercial law reform worldwide for over 40 years. UNCITRAL's business is the modernization and harmonization of rules on international business.

  30. Trade means faster growth, higher living standards, and new opportunities through commerce. In order to increase these opportunities worldwide, UNCITRAL is formulating modern, fair, and harmonized rules on commercial transactions. These include: • Conventions, model laws and rules which are acceptable worldwide • Legal and legislative guides and recommendations of great practical value • Updated information on case law and enactments of uniform commercial law • Technical assistance in law reform projects • Regional and national seminars on uniform commercial law

  31. General Assembly Resolutions and Related Documents http://www.uncitral.org/uncitral/en/GA.html

  32. Case Law http://www.uncitral.org/uncitral/en/case_law.html

  33. 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention Although the Convention, adopted by diplomatic conference on 10 June 1958, was prepared by the United Nations prior to the establishment of UNCITRAL, promotion of the Convention is an integral part of the Commission's programme of work.

  34. The Convention is widely recognized as a foundation instrument of international arbitration and requires courts of contracting States to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and also to recognize and enforce awards made in other States, subject to specific limited exceptions. • The Convention entered into force on 7 June 1959.

  35. Text with signatures • http://www.uncitral.org/pdf/1958NYConvention.pdf - Status http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html

  36. http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.htmlhttp://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention.html

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