Issue in the Area of International Dispute Resolution
Added on - 01 May 2020
3. Identify a key problem or issue in the area of international dispute resolution. How isthis issue being addressed by courts or international bodies? What, in your opinion, shouldbe done in the future?In the last few decades, there have been some significant changes in the world and many of themwere totally unexpected. For example, there was rapid breakup of Soviet bloc and the centralizedeconomic planning was rejected. Similarly, there was willingness among the United States andits allies to impose national boundaries with the help of sophisticated and overwhelming militarypower. There was ever increasing economic connectedness that was the result of rapidcommunications, and transfers in currency and travel. The business world became smaller,interconnected, and there was a desire present to achieve growth and profits. Human desires andconsumer epithets in all parts of the world require that the economy should produce, distributeand sell.1As a result, there was a rapid rise in commercial transactions, there were morecontracts, more negotiations and increased business obligations.2The result was that there weremore disputes to be resolved, including international disputes.Most of the business disputes, national or international can be resolved through the phone. Insome cases, there may be a need for a face-to-face meeting, however, negotiations remained themain method to resolve disputes. In this regard there are some intractable controversies.3In orderto deal with these issues, the alternative dispute resolution gained much popularity. Under these1Acuff, FrankL. (2008), How to Negotiate Anything With Anyone Anywhere Around the World (3rd edn), Chicago:AMACOM.2Berman, Paul Schiff (2007), 'Global Legal Pluralism', Southern California Law Review,80,pp. 1155-237.3Busch, M. and Reinhardt, E. (2000), 'Bargaining in the Shadow of the Law: Early Settlement in GATT/WTO Disputes',Fordham International Law Journal,24,pp. 158-72
circumstances, international arbitration is the prime method to resolve disputes that may arisebetween states, corporations and individuals in nearly every aspect of international trade andcommerce.4It has been stated in this regard that in view of the widespread significance ofinternational arbitration in the present world where commercial life requires that there should bequick and timely activity, it appears that international arbitration is becoming popular and a largenumber of businesses are relying on it. At the same time, the concept of arbitration is also verysimple. In this case, the parties to dispute arrive at the agreement that they are going to submittheir dispute that may arise in the course of trade or commerce to the person and the expertise ofsuch person is trusted by both the parties. Therefore in such a case, both the parties put forwardthe case along with sufficient evidence for the purpose of supporting the claim to such privateindividual known as the arbitrator. The arbitrator then considers all the evidence and thearguments made by the parties and beaches at a decision. This decision is binding for the partiesto the dispute. The decision has to be treated as binding and final, because the parties themselveshave consented to it instead of any coercive or binding power of the state. In this way,international arbitration can be described as the prime method to resolve disputes mainly arisingin case of international commercial agreements and international disputes. It can also be statedthat arbitration has proved to be an efficient way to achieve a final decision. That is binding forthe parties without taking recourse to the courts of law or using legal formalities.5As a result ofthe rising popularity of arbitration and the need for having such effective dispute resolutiondevice, a large number of lawyers and accountants have also established exclusive groups ofarbitration experts.6In the same way, many states have also started modernizing their legislationsto deal with the imperfections present in the traditional court system. The defining characteristic4Fisher, Roger, Kopelman, Elizabeth and Schneider, Andrea Kupfer (1994), Beyond Machiavelli: Tools for Coping withConflict, Cambridge, MA: Harvard University Press.5Franck, Susan (2007), 'Empirically Evaluating Claims about Investment Arbitration', North Carolina Law Review, 86, pp. 1-886Friedman, Thomas (2005), The World is Flat: A Brief History of the 21st Century, New York: Farrar, Straus & Giroux.
of arbitration is that while it is different from judicial processes at the same time, it also results inthe resolution of disputes among the parties. Arbitration does not follow the technical, lengthyand expensive process.7That is used in case of litigation, but it provides an efficient and flexiblemeans to resolve the disputes between the parties.8Generally the arbitrators are the persons whohave technical expertise in the particular area of dispute and they are respected by the parties tothis for such expertise.Features of international commercial arbitration: The popularity of international commercialarbitration is constantly rising in the form of dynamic dispute resolution process. As a result ofthe distinct character of arbitration, while interacting with domestic law whenever and whereverneeded, the process of arbitration operates on a distinct sphere, where the will of the parties andthe rules provided by non-national institutions and international treaties regulate the wholeprocess. In this way, it can be said that in case of international arbitration, there is a mix ofcomparative law as well as the private international law. This allows the expansion of thehorizon of arbitration beyond the aspects of domestic law, and it also succeeds in by passing thelengthy procedures, as well as the attitudes of national courts.9As compared to the general judgments of the national courts, the arbitration awards can beenforced easily. Another significant feature that is present in case of international arbitration isthat an option is available to the parties to the dispute to select a New Jersey instead ofsubmitting the dispute to the jurisdiction of the national law of the parties. Similarly, theprocedure that is adopted in case of arbitration is much less complex as compared to the formal7Ginsburg, Tom and Shaffer, Gregory (2010), 'How Does International Law Work?', in Peter Cane and Herbert M. Kritzer (eds),The Oxford Handbook of Empirical Legal Research, Oxford: Oxford University Press8Gadlin, Howard (1994 ), 'Conflict Resolution, Cultural Differences and the Culture of Racism', Negotiation Journal,10,pp. 49-689Gadlin, Howard and Pino, Elizabeth Walsh (1997), 'Neutrality: A Guide for the Organizational Ombudsperson', NegotiationJournal,13,pp. 17-37