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The rising importance of commercial arbitration in crossborder transactions

Written by: Dr. Mohamed Ibrahim

Article Overview: Cross-border business transactions have augmented the need for competent appropriate arbitration systems

The rising importance of commercial arbitration in crossborder transactions

Experienced lawyers understand that the option of litigation should be suggested if it is the only way out to resolve a dispute or maintain rights. However, in situation where litigation is not the only way out, arbitration, conciliation, mediation and other out of court methods of disputes are advisable positive options. Perhaps it is of prime importance to note that the option of litigation makes it difficult for the parties to resume usual relationships in future as litigation is prone to create confrontation. Litigation as it develops, it leads to hardening of positions within the parties’ minds and in some cases it may ultimately lead to a lock-in of bargaining positions. On the other hand, ADR assists the parties to avoid confrontation, provides broad leeway of neutrality, speedy settlement, confidentiality, proficiency, and smaller cost. In international business, the role of litigation before courts has been primarily reduced by litigation before international arbitral tribunals. It may be professional and efficient, to appraise the dispute as a management trouble, and utilize management decisions making, to the effect of choosing from the major options, whether to continue to negotiate, litigate or utilize an appropriate ADR mechanism.
In the some countries decisions of arbitral tribunals are final and binding. An appropriately made arbitral award is considered to have the authority of res judicata. Accordingly, it is not possible to start the same subject of dispute utilizing consequent court proceedings. However, proposals or advice of a mediator are not binding. In the last part of the process, the parties must bring to a close a settlement agreement. The parties may elect to use available methods of dispute resolution in sequence. In the event mediation or conciliation is unsuccessful, the parties may have to submit to arbitration.
The most recent decade has witnessed a rapid increase of investment activities in developing and least developed countries by multinational companies particularly in the field of oil industry. It is projected that increasing business transactions may dictate a call for competent, appropriate arbitration systems. Needless to say, international arbitration is the main practical mechanism to resolve disputes concerning international business transactions. Yet, such an implication necessitates reorganization of a mechanism as would steer clear of pitfalls and risks. Yet again, the modern approach requires assuming the required procedures as would get hold of well knowledgeable arbitrators in the area of international commercial transactions well acquainted of internationally acknowledged arbitration norms and rules.
There is a modern tendency to arrange seminars on international arbitration practice and procedure. It is expected that all involved will be requested to share expertise in such a significant area of business. Developing and least developed countries are in dire need to keep up with the latest development in globalization trends and in particular international business transactions law including arbitration and E-commerce and internet business. A recent trend which requires to be tackled is the position of arbitration under diverse legal systems. The diverse concepts of legal systems in international business transactions bring up significant challenges in the area of cross-border transactions. Arbitration in oil, gas and all energy sectors may present cultural, legal and institutional dissimilarities not open to happy solutions. On account of the fact that the majority of countries have adopted UNICTRAL model law, ratified ICSID Convention of 1965 and ratified the New York Convention of 1958 may support a development of modernization projected to adopt well-established concepts in international arbitration. Sufficient procedural rules in respect of enforcement of foreign arbitral awards require being included in civil procedure Acts. Once more, non-enforcement of arbitral awards on public policy justifications require to be deal with as would limit such across-the-board ground in favor of practical business-like, forceful basis.

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Article Tags: adr, arbitration, confrontation, court proceedings, international business, investment activities, judicata, least developed countries, leeway, litigation, management decisions, mediation, mediator, neutrality, prime importance, proficiency, rapid increase, settlement agreement, speedy settlement, tribunals



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