Arbitration (TIẾNG ANH KINH tế SLIDE)

 The parties to a dispute sometimes choose to resolve a dispute through arbitration rather than through court litigation..  Arbitration is generally quicker and cheaper than court li

Unit 7: Arbitration

Three branches of the U.S Federal Government

US judicial system

Vietnam’s Judicial System

 The parties to a dispute sometimes choose

to resolve a dispute through arbitration

rather than through court litigation In

arbitration, a dispute is resolved by a neutral arbitrator rather than by a judge or jury.

 Arbitration is generally quicker and cheaper than court litigation Specially qualified

arbitrators are often used to resolve

technical disputes.

 In the United States, many arbitration cases are handled by arbitrators approved by the American Arbitration Association, which

has offices in a number of cities Arbitration

is similar to a trial in that both parties

present their cases to the arbitrator, who

renders a decision Appeals of arbitrators' decisions are generally possible only if the arbitration was conducted improperly.

Arbitration clause

 "All disputes arising out of or in

connection with the present contract shall

be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules."

Arbitration clause

“Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules [including the Optional Rules for Emergency Measures of Protection], and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”

Arbitration clause

 “All disputes arising out of or in relation

to this contract shall be finally settled by the Vietnam International Arbitration

Centre at the Vietnam Chamber of

Commerce and Industry in accordance with its Rules of Arbitration”.

Additionally, the parties may add the following

provisions to the arbitration clause:

 (a)   The number of arbitrators shall be (one

or three);

 (b)   The place of the arbitration shall be ;

 As to disputes involving a foreign element, the parties may also make additions:

 (c)   The applicable law shall be ;

 (d)   The language of the arbitration shall

be

Vietnam situation

“The commercial court system is functioning The local arbitration system has no power of enforcement and the enforceability of arbitration under the New York Convention of Foreign Arbitral Award, to which Vietnam has acceded, is untested”

decision (the “award") they agree to be

bound

 It is a settlement technique in which a

third party reviews the case and imposes

a decision that is legally binding for both sides.

 Is most commonly used for the resolution

of commercial disputes, particularly in the context of international commercial

transactions.

 Can be either voluntary or mandatory and can be either binding or non-binding

 Can be binding or not binding

 An alternative to court action

 Eg: in divorce situations – in America 50% marriages end up at divorces.

 Takes place in private place, unlike

litigation in the court.

 A neutral forum with a panel of three

arbitrators:

 One chosen by one party

 One chosen by the other party

 One chosen either by the parties or the two party-appointed arbitrators

 Main centres for international arbitration are: Paris, London, Geneva, Stockholm, New York, Hong Kong and Singapore.

 Stockholm: east-west trade disputes

 London: shipping & commodities

Name recognition

 Paris: home of the International Chamber

of Commerce and its rules.

 London: home of the London Court of

International Arbitration.

 Geneva

 Arbitration bodies try hard to get their

standard arbitration clause put into

people contracts, so they have a captive market once disputes arise.

 They do this by publicising their activities and their rules.

The choice of the venue depends on:

 The availability of good experienced arbitrators.

 The availability of good experienced arbitration lawyers, and expert witnesses such as

accountants and engineers.

 The cost of these people.

 The support that local legal system gives to

arbitration.

 Accessibility: flight access, good facilities,

administrative back-up, good

telecommunications, IT support, and climate.

 National legislation has to lend its support

to such an important economic activity as arbitration.

Advantages of Arbitration

 Arbitration can be faster than litigation

 Arbitration can be cheaper than litigation

 Arbitration is less formal

 Arbitrators tend to be more sophisticated and knowledgeable than juries

Disadvantages of Arbitration

 If you get a bad decision from the

arbitrator, there usually is nothing you can

do about it (no appeals as are allowed in litigation)

 You may get stuck with a bad arbitrator

 You have less chance to really investigate your case (through discovery, which is

typically broader in litigation)

 Discovery means the opportunity to discover

information from the other side in a dispute, such as through written questions or

depositions.

 You should negotiate the specifics of any

arbitration clause For example, you might

want to provide for three arbitrators instead

of one or require that certain rules have to be followed.

 Voluntary

 Mandatory

 International commercial disputes

 Shipping / Commodities / Construction

 In private place

 Litigation in the court.

 A panel of three arbitrators