scholarly journals Alternativas e incertidumbres de las cláusulas de solución de controversias en la contratación marítima internacional = Alternatives and uncertainties of the dispute settlement clauses in international maritime contracts

2018 ◽  
Vol 10 (2) ◽  
pp. 333 ◽  
Author(s):  
José Carlos Fernández Rozas
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Maritime Transport ◽  
Private Law ◽  
Bill Of Lading ◽  
Arbitration Clause ◽  
Formal Validity ◽  
International Dispute ◽  
International Private Law ◽  
Maritime Navigation

Resumen: Las controversias de carácter jurisdiccional son muy comunes en litigios derivados de la contratación marítima internacional y, en este contexto, la elección del foro es una cuestión capital. Tanto las cláusulas atributivas de jurisdicción y como las cláusulas de arbitraje son dos mecanismos diferentes que ayudan a garantizar la imparcialidad y la previsibilidad en la resolución de las controver­sias internacionales. A pesar de sus beneficios, en el contexto de los documentos de transporte marítimo internacional estas cláusulas pueden ser inconvenientes para las partes que se ven obligadas a litigar ante foros lejanos. La mayoría de los conocimientos de embarque contienen atributivas de jurisdicción que establecen que las partes deben acudir a determinado tribunal para resolver cualquier controversia que surja en relación con el contrato de transporte internacional. Sin embargo, cuando se emite un co-nocimiento de embarque bajo una cláusula de fletamento que incorpore expresamente la cláusula de arbitraje, las partes en el contrato de transporte incluidas en el conocimiento de embarque, pueden verse obligados a acudir al arbitraje. El art. 468 Ley de Navegación Marítima regula la validez formal de aquellas cláusulas de jurisdicción y arbitraje que prevean la sumisión de las partes a una jurisdicción extranjera o a un arbitraje en el extranjero e impone la negociación individual y separada de ambas cláusulas como requisito de validez.Palabras clave: Derecho internacional privado, cláusulas atributivas de jurisdicción, cláusulas de arbitraje, arbitraje marítimo, Ley de Navegación marítima de 2014.Abstract: Disputes about jurisdiction are very common in litigation arising from international maritime contracting. In this context the choice of forum is an important matter. Jurisdiction and ar­bitration clauses are two different mechanisms that help to ensure impartiality and predictability in international dispute resolution. Despite their benefits, in the context of international maritime transport documents these clauses can be inconvenient for parties that are forced to litigate many times before distant fora. Most bills of lading contain jurisdiction clauses providing that parties are to resolve any disputes arising in connection with the contract of carriage contained in the bill through litigation in the courts. Where a bill of lading is issued under a charter party, however, and where it expressly incor­porates the charter party’s arbitration clause into its terms, the parties to the contract of carriage con­tained in the bill of lading, including any transferees of the bill, may be obliged to refer their disputes to arbitration. Article 468 of the new Maritime Navigation Act regulates the formal validity of choice of court agreements and arbitration agreements establishing the submission to a foreign court or to an arbitration located abroad.Keywords: International Private Law, jurisdiction and arbitration clauses, maritime arbitration, Spa­nish Maritime Navigation Act 2014

scholarly journals JURIDIS ANALYSIS OF CONFLICT COMPETENCY OF BUSINESS DISPUTE SETTLEMENT THROUGH ARBITRATION AND GENERAL JUSTICE IN STOCK OWNERSHIP

2018 ◽  
Vol 9 (1) ◽  
Author(s):  
Edi Prayitno ◽  
Martin Roestamy
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
District Court ◽  
Court Decisions ◽  
Legal Research ◽  
Actual Case ◽  
Arbitration Clause ◽  
Investment Agreement

This Thesis was written based on the result of legal research that analyzes conflict of business dispute resolution between arbitration and litigation in accordance with the applicable regulation and court decisions which have acquired permanent legal force. The method used in this legal research is normative legal methods. The study of literature as a basis of the research and according to Law Number 30 Years 1999 about Arbitration and Alternative Dispute Resolution, in Article 3 and Article 11 of the Law have expressively stated that District Court does not have the authority to adjudicate disputes between the parties that bound by the arbitration agreement. The result of this legal research is that arbitration clause as stated in business investment agreement that should be absolute competencies to resolve the dispute, but the Decision of District Court Judges which have been strengthened by Supreme Court of Indonesia expressively stated that the court has the authority to check and adjudicate the dispute even it has arbitration clause or arbitration agreement with the reason that the dispute is a tort and there are another parties beside the party who sign the Investment Agreement, in the suit. The court attitude that adjudicate the dispute with arbitration clause lead to conflict of competency and never ending adjudication process of business dispute. From the actual case that researcher has been analyzes, researcher suggest that Supreme Court of Indonesia as the highest judicial body must respect arbitration body by rejecting all of the civil cases that have arbitration clause on its agreement. Law Number 48 Years 2009 about Judicial Power stated that non-litigation dispute resolution is conducted through arbitration or alternative dispute resolution. Based on pacta sun servanda and choice of forum principles on the agreement binding to the parties and must be obeyed by the parties.KeyWord : : Arbitration Clause, Pacta Sun Servanda Principle, Business.

From Conventions to Protocols: Conceptualizing Changes to the International Dispute Resolution Landscape

2020 ◽  
Vol 11 (2) ◽  
pp. 217-241
Author(s):  
Yvonne Guo
Keyword(s):  
New York ◽  
Dispute Resolution ◽  
Dispute Settlement ◽  
International Political Economy ◽  
Private International Law ◽  
Border Enforcement ◽  
Cross Border ◽  
International Dispute ◽  
Settlement Agreements ◽  
The Cross

Abstract The recently-concluded Singapore Mediation Convention and Hague Judgements Convention have aimed to facilitate the cross-border enforcement of mediated settlement agreements and court judgements in the same way that the New York Convention has facilitated the cross-border enforcement of arbitral awards. This shift in the international dispute resolution landscape is analysed on three levels: normative, strategic and operational. Drawing from theories of private international law, international political economy and comparative public policy, this article asserts that convergent public and private interests likely championed the elaboration of international conventions as a means of promoting harmonization in international dispute settlement. It demonstrates that while the conversion of court judgements and mediated settlement agreements into arbitral awards could also have facilitated their cross-border enforcement, the further development of new mechanisms that respond directly to commercial parties’ needs remains necessary to complement the evolving treaty framework.  

International Dispute Settlement in an Evolving Global Society: Constitutionalization, Accessibility, Privatization

2006 ◽  
Vol 39 (1) ◽  
pp. 221-223
Author(s):  
Margaret E. McGuinness
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Science Literature ◽  
Social Scientists ◽  
Comprehensive Overview ◽  
Global Society ◽  
Public And Private ◽  
Interstate Relations ◽  
International Court ◽  
International Dispute

International Dispute Settlement in an Evolving Global Society: Constitutionalization, Accessibility, Privatization, Francisco Orrego Vicuña, Cambridge: Cambridge University Press, 2005, pp.xxiii, 156.This compilation of the author's 2001 Hersch Lauterpacht Memorial Lectures at Cambridge provides a comprehensive overview of the methods and modes of international dispute settlement. Included in the broad survey are the central public and private dispute resolution processes at the United Nations and the International Court of Justice (ICJ), regional arrangements, national jurisdictions and private party-to-party arrangements. The book achieves its stated goal of identifying trends and provoking discussion of ways in which international dispute resolution can be improved, and in the process has created a useful primer on transnational dispute settlement for social scientists. The lectures have been supplemented with footnotes and the book includes a comprehensive bibliography that includes most of the important recent works in the international law literature on dispute resolution. The strength of the volume lies in its discussion of private dispute resolution and its interplay with public institutions, an area that is often ignored or played down in political science literature focused on state-to-state legal arrangements and interstate relations.

Towards the Responsible Management of Disputes in Southeast Asia

2019 ◽  
pp. 101-126
Author(s):  
See Seng Tan
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Regional Governance ◽  
Asia Pacific ◽  
Legal Personality ◽  
International Dispute ◽  
The Pacific ◽  
Concomitant Reduction ◽  
Slow Evolution ◽  
Southeast Asian Countries

This chapter explores how regional responsibility is expressed in the context of Southeast Asia’s creep towards the pacific settlement of trade and territorial disputes. It examines the nexus between sovereignty and responsibility, which is also partly manifested in the way regional countries have coalesce around the notion of a rules-based order in the Asia-Pacific, where responsible stakeholders presumably abide by rules-based governance, consensually agreed codes of interstate conduct and resort to peaceful means of dispute settlement. This includes ASEAN’s slow evolution towards a rules-based regional governance and a ‘legal personality’ in the form of the ASEAN charter. It also looks at the increasing reliance by Southeast Asian countries on international dispute settlement regimes and mechanisms as means, such as mediation, reconciliation, arbitration and/or adjudication, for resolving their disputes over trade and territory. Crucially, increasing reliance on peace means of dispute resolution does not automatically lead to a concomitant reduction in conflicts and disputes between regional countries; indeed, it might even engender more disputes because governments are now encouraged to raise issues in the mutual expectation that contending parties are unlikely to resort to war to settle their conflicts.

Part VII Structure and Operations, Ch.41 International Adjudicative Bodies

2016 ◽  
Author(s):  
Giorgetti Chiara
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Dispute Settlement ◽  
Diverse Group ◽  
International Dispute

One of the most important developments in international law is the multifaceted growth of international dispute resolution. There are more parties who prefer to use international law mechanisms to resolve their disputes, and more international actors have more fora available to them to which they can bring their disputes. At the heart of this development are international adjudicative bodies, a diverse group of international bodies that have a common dispute settlement function the outcome of which is binding on the parties. This chapter examines how, when, and over whom these bodies can exercise their function, as well as the nature and enforceability of their decisions.

Investor-State Conciliation and Mediation

2021 ◽  
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Legal Rights ◽  
Present System ◽  
Group Iii ◽  
Substantive Content ◽  
International Dispute ◽  
Settlement Agreement ◽  
Definition Of

Conciliation and mediation have great potential to resolve investor-State disputes. Nonetheless, arbitration has significantly overshadowed these two forms of amicable dispute settlement processes. This disparity is slowly changing, and, in recent times, interest has grown in conciliation and mediation, particularly given the duration, complexity, and cost of investor-State arbitrations, as well as concerns as to the substantive content of investor-State arbitral decisions. No clear consensus has emerged regarding the precise definition of either conciliation or mediation. Given the substantial overlap between the two processes, they have often been referred to as functionally equivalent and interchangeable. The best way to identify conciliation or mediation is through close examination of the particular set of rules and practices at issue. But the two dispute settlement mechanisms are generally distinguishable. At its core, conciliation involves a sole conciliator or conciliation commission considering the respective positions of the disputing parties and making nonbinding recommendations for settlement. Conciliation rules typically have flexibility to accommodate other mediation techniques that share the same purpose and may require a conciliator or conciliation commission to produce a written evaluation of the parties’ respective legal positions. In comparison, mediation is a process in which a mediator (1) assists the parties to focus on their real interests rather than legal rights, (2) generally avoids making any merits-based evaluation of parties’ positions, and (3) facilitates a meaningful dialogue between the parties to reach an amicable settlement. Unlike arbitration, in which the disputing parties have no certainty over the arbitrators’ binding decisions, the success of both conciliation and mediation depends on the willingness and cooperation of the parties to reach a voluntary and agreed settlement. A settlement agreement resulting from a mediation or conciliation process may potentially be enforced under domestic laws or in states that have ratified the Singapore Convention on Mediation, an innovation in international dispute resolution that may increase interest in investor-State conciliation and mediation. The UNCITRAL Working Group III is presently considering whether and how to promote conciliation, mediation, and other alternative dispute resolution (ADR) mechanisms in reforms to the present system of investor-State dispute settlement.

scholarly journals PERAN PENGADILAN NEGERI INDONESIA DALAM PENYELESAIAN SENGKETA TRANSAKSI ELEKTRONIK INTERNASIONAL

2018 ◽  
Vol 26 (1) ◽  
pp. 40
Author(s):  
Isdiyana Kusuma Ayu
Keyword(s):  
Dispute Resolution ◽  
International Business ◽  
District Court ◽  
The Internet ◽  
Private Law ◽  
District Courts ◽  
Business Transactions ◽  
Electronic Transactions ◽  
International Private Law ◽  
Sense Of Justice

Electronic transactions or E-commerce are buying and selling transactions carried out through the internet. As a result of over the internet, the nature of e-commerce can be done without knowing the borders. When a default or fraud occurs in e-commerce conducted by one of the parties who are abroad, it must pay attention to the principle of International Private Law related to the Court forum, Arbitration, or other dispute resolution institutions. That means that it is necessary to pay attention to the basic arrangements for dispute resolution of international business transactions that have been regulated in Indonesia and the authority of the Indonesian District Court in resolving international electronic transaction disputes. In the juridical perspective as the basis for solving electronic transaction cases to be legal strengthening takes a sense of justice so that it can be seen that the basis of international e-commerce arrangements in accordance with Article 18 Paragraph (4) of the ITE Law. District Courts has a role to be the main and complementary institution in dispute resolution international electronic transactions.

scholarly journals Una acertada orientación jurisprudencial en relación a la validez y alcance de la cláusula sumisoria a favor de tribunal extranjero contenida en un conocimiento de embarque. Comentario al Auto de 13 de febrero de 2019 de la AAP de Barcelona (Sección 15) = A correct jurisprudencial orientation in relation to the validity and scope of the submissive clause in favor of a foreing court contained ina bill of lading. Commentary on the Judgment of February 13, 2019 of the Provincial Court of Barcelona (Section 15)

2019 ◽  
Vol 11 (2) ◽  
pp. 388
Author(s):  
Juan José Álvarez Rubio
Keyword(s):  
Regulatory Regime ◽  
Maritime Transport ◽  
Bill Of Lading ◽  
Maritime Navigation ◽  
The Will

 Resumen: La determinación del régimen normativo aplicable a las cláusulas atributivas de ju­risdicción contenidas en los conocimientos de embarque suscita un debate jurídico que el Auto de la AAP de Barcelona de 13 de febrero de 2019 resuelve de forma acertada, al subrayar la primacía en la aplicación del artículo 25 del Reglamento 1215/2012 (Bruselas I Bis) sobre las previsiones contenidas en la Ley de Navegación Marítima española. La interacción entre los diversos bloques normativos que confluyen en este sector del transporte marítimo internacional de mercancías exige descender a cada caso en concreto para poder así seleccionar de forma acertada la norma al amparo de la cual ha de ser analizada su extensión y límites.Palabras clave: autonomía de la voluntad de las partes, cláusulas atributivas de jurisdicción, inte­racción entre bloques normativos, Ley de Navegación Marítima de 2014, Reglamento 1215/2012 (Bru­selas Ibis).Abstract: The determination of the regulatory regime applicable to the attributive clauses of ju­risdiction contained in bills of lading raises a legal debate that the ruling of the Provincial Court of Barcelona of February 13, 2019 resolves correctly, by emphasizing the primacy in the application of article 25 of Regulation 1215/2012 (Brussels Ibis) on the provisions contained in the Spanish Maritime Navigation Law. The interaction between the different normative blocks that come together in this sector of the international maritime transport of merchandise requires descending to each specific case in order to be able to correctly select the standard under which its extension and limits have to be analyzed.aKeywords: autonomy of the will of the parties, attribution clauses of jurisdiction, interaction between normative blocks, Law of Maritime Navigation of 2014, Regulation 1215/5012 (Brussels Ibis).

International Dispute Settlement

2019 ◽  
pp. 266-294
Author(s):  
Hisashi Owada
Keyword(s):  
Human Rights ◽  
Latin America ◽  
Dispute Resolution ◽  
Dispute Settlement ◽  
Regional Diversity ◽  
The Third ◽  
Central Asian ◽  
International Dispute ◽  
State Practice ◽  
Areas Of Concern

This chapter studies Asian participation in international dispute settlement, revealing three thematic characteristics of the region. The first is the diversity of state practice within Asia. Intersecting this sub-regional diversity is the diversity of approaches within any given state towards different areas of concern. Thus, participation in international dispute settlement varies not only according to sub-region, but also according to the area of law. The second characteristic is that Asian states on the whole are generally quite willing to substantively engage with international dispute resolution. Finally, notwithstanding the above, the third characteristic is that there remains in Asia a cautious hesitation towards open commitments to international dispute-resolution mechanisms. The most glaring omission is that of any regional dispute settlement body. Whereas Africa, Europe, and Latin America all have regional human rights courts and sub-regional courts of different varieties, only the Central Asian states participate in any standing regional court.

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