International Dispute Resolution – Mediation, Arbitration & Litigation
INTERNATIONAL TRADE DISPUTE RESOLUTION
Trade & commerce are the two indispensable aspects of a functional economy and finance completes the set. With the advent of the modern global trade wherein the trade barriers no longer exists amongst the countries, there exists a persistent threat of disputes for various reasons which could be quality, quantity, delivery, packing, shelf life etc of the goods or services, and the modes and terms of payments, timelines and regulations prevailing in the country, and so on so forth.
Generally, the dispute resolution mechanism, the applicable law to govern the dispute resolution, the seat where the proceedings are to be conducted are agreed between the parties beforehand, at the start of the transaction while entering into a contract or issuance of purchase order or letter of Intent etc. Accordingly, the courts of the agreed country as per their settled law or through the process of Arbitration and Mediation the disputes can be settled and resolved. The trial of the dispute by a court or arbitrator has its own legal processes and depending upon the tricks and complexities of the legal recourse chosen the award or decree is passed which can further be taken up for execution in the country in which the same is to be accomplished. The seats for the conduct of the proceedings of the Alternate Dispute Resolution(ADR) Mechanisms like Arbitration and Mediation, which are chosen commonly by the parties across the world are the London Court Of International Arbitration, the Singapore International Arbitration Center, the Hong Kong International Arbitration Center, the International Court Of Arbitration located at Paris, the WIPO Arbitration & Mediation Center located at Geneva, the American Arbitration Association Centre located at New York, the Dubai International Arbitration Center, the International Centre For Settlement Of Investment Disputes located at Washington DC etc.
A simple sale-purchase transaction may go encounter various complexities of the law as per the chosen legal recourse of dispute settlement. LEGALLANDS has the requisite experience , expertise and network to deal with such Dispute Resolution Mechanisms in International Trade transactions whether it is the process of mediation or obtaining an Award in Arbitration proceedings or a Decree or Execution orders from the Courts for the enforcement of the same.
Our Expert professional team can study, interpret, research and provide expert counsel to clients with strategies- legal and lobbying, negotiate, formulate, draft contracts &, suits & claims & petitions, etc., for all sorts of International Disputes such as Sale & Purchase of Goods or Services, Joint Ventures and Collaborations, Technology Transfers, Government Contracts, E-Commerce, Banking and Payment Settlements, Third Party Guarantees and many more.
OUR PRACTICE AREA:
ASSISTANCE AND REPRESENTATION IN DISPUTE RESOLUTION(S):
We at LEGALLANDS aid in the resolution of all the trade & commercial disputes between individuals and entities within the country and outside the country like in the jurisdictions of India, UAE, Russia, Europe, USA, etc., and the subsequent appearance, representation, resolution before the Arbitration Forum or any other forum as decided by the parties. The nature of work includes:
- OBTAINING AWARDS:- We represent parties in Arbitration proceedings to file claims, suits, petitions, complaints, etc. obtain decrees or awards anywhere in the world through the court process or alternate dispute resolution mechanisms such as mediation or arbitration and in the manner of proceedings whether virtual or physical and obtain awards for the parties.
- ENFORCEMENT OF AWARDS
- IN INDIA: – We represent parties for enforcing various Arbitration Awards or execution of decrees through the mechanisms of the courts of India. Further such award or decree could have been passed anywhere in the world, we represent parties to enforce such awards or decrees in India according to laws in force in India which recognizes foreign awards.
- IN OTHER JURISDICTIONS: – Further, we engage the services of qualified Counsels, Attorneys and Solicitors in any other Jurisdictions like the USA, UAE, UK, Europe, Japan, Russia etc., for the enforcement of awards or decrees in such jurisdictions.
- DRAFTING LEGAL NOTICE(S):- We have the requisite skills for drafting Legal Notice for the Recovery of the outstanding amount, enforcement of contracts etc. through Jurisdictional Commercial/ Civil courts and Appointment of Arbitrator in case of Arbitration Clause specified in the Trade and Commercial Contract between the parties.
- DRAFTING LEGAL OPINION(S):- Based on the queries and concerns raised by the clients we have the skills to make research for laws of various countries to formulate a legal strategy for trade recoveries and dispute resolution.
- DRAFTING OF RECOVERY SUIT:- We at LEGALLANDS shall aid in drafting and filing of the Recovery Suit arising due to non-fulfillment of any trade practice(s) or payment/ repayment of the trade obligations as per the contract between the parties before the appropriate Judicial Authority in India. Such appropriate judicial authorities include specialized commercial courts which have jurisdiction on commercial disputes for a minimum amount of INR 3,00,000(Rupees Three Lakhs only) or about USD 4000 (Four thousand US Dollars only). Further there are provisions regarding the proceedings before the Commercial Courts, which provides for deciding the dispute within a time period of 6 months after the filing of documents wherein admission or denial of claims by the parties are recorded.
ASSISTANCE IN HANDLING PROCEEDING(S) IN COURT AND OTHER FORUMS / TRIBUNALS:
We at LEGALLANDS shall aid in handling, appearance, and representation for the proceeding(s) and litigation already existing or arising in future for the matters related to all spheres of law including Civil, Criminal, Corporate, IPR, Money Laundering, Tax laws in India.
DELINEATION OF PROCEDURES:-
ALTERNATIVE DISPUTE RESOLUTION AND LITIGATION: –
Wherein the existing Trade Agreement / Contract signed between the parties have a clause providing for resolution of disputes through Alternative Dispute Resolution(ADR) Mechanisms like Arbitration, Mediation or Negotiation at the first instance instead of Litigation proceedings, providing a seat for the conduct of proceedings and the manner of choosing Arbitrator/s or Mediator/s, such clauses shall govern the conduct of proceedings unless the contrary is mandated by statutes of the particular jurisdictions. In India the statutes allow the resolution of disputes through ADR mechanisms and allow contractual clauses to define the procedure to be followed in such proceedings. The intervention of courts in reopening Arbitral Awards or Mediation settlements is greatly restricted as per the laws of India. Similar provisions exist across other jurisdictions around the world where the scope of interference in the finality of Arbitral Awards or Mediation Settlements is limited. If there are no provisions for the resolution of disputes through ADR mechanisms in the subject contract of the client, litigation will be resorted to directly.
PROCEDURE FOR RESOLUTION OF DISPUTE(S) IN SUCH CASE:
APPLICABILITY OF ARBITRATION CLAUSE
Wherein the Trade Contract / Agreement, there is a predefined Arbitration Clause mentioning the procedure for choice of the Arbitrator and the place for the Arbitration proceedings, we at Legallands shall provide the client with the assistance in enforcing the clause as per the mentioned terms and conditions, whereas in case the parties are unable to choose the respective arbitrator for the dispute resolution, an alternative Arbitrator shall be appointed by the Judicial Authority based on Jurisdiction after filing of the requisite application before the Hon’ble authorities.
In case of failure of resolution of disputes through ADR Mechanisms, litigation in courts can be resorted to. The manner of resolving the dispute through litigation varies with the amount claimed in the dispute between the parties.
GENERAL PROCEDURE OF LITIGATION PROCEEDINGS:
Initial Step: Legal Notice shall be sent to the opposite party contemplating the concerns and requirements based on the act performed, delineating the claims of the client.
Subsequent Steps: A commercial/civil suit shall be filed before the jurisdictional judicial authority as per the Indian Laws. Fast track mechanisms like Commercial Courts can be resorted to, based on the valuation of the claim.
Matters relating to Recovery of Monetary obligations: A Recovery suit shall be drafted and filed before the jurisdictional judicial authorities considering the jurisdiction along with the intimation to the Ministry of External Affairs, India followed by the Police compliant against the defaulter who has not made good the payment, in New Delhi, India and subsequent place of business where the defaulter is registered.
CRIMINAL COMPLAINT TO LAW ENFORCEMENT:
Criminal Compliant under the concerned section of Indian Penal Laws before the concerned Law Enforcement Officers based upon the Jurisdiction and depending upon the nature of default concluded by the concerned party.
CRIMINAL COMPLAINT TO CUSTOMS AUTHORITIES:
A criminal Complaint shall be made to the Customs Authorities in India from where the party in Default or opposite party trades in export and import of the goods/services requesting the authorities to take appropriate action against the fraudulent act of the defaulting party.
CRIMINAL COMPLAINTS TO AUTHORITIES WITH RESPECT TO (WRT) NATURE OF DEFAULT:
Criminal complaint to be filed against the defaulter with the authorities based on the default concluded by the concerned party depending upon the nature of the default, such as:
Default w.r.t. Joint Venture Business Project:
Default w.r.t. Recovery of goods for payment
Default w.r.t Non-fulfillment of Trade Obligations by the company incorporated in India or having principal place of business in India
Default w.r.t. Trade Practices of an Indian Resident
Default w.r.t. Investments in India
Default w.r.t. Non-compliance with the duties and obligations as mentioned in the contract between the parties.
Corporate Advisory & Contract Formations: Drafting & Vetting of Legal Agreement & Contract(s):
We at LEGALLANDS believe that a sound foundation shall help in prevailing in the dispute ultimately and hence the contract which is the foundation for the trade transactions should be legally sound. We shall aid in drafting and vetting of Legal Agreements and Contracts for our clients who may be individuals/Companies etc., with any trade associate entity in any country around the world. The nature of agreements include:
- Joint Venture Agreements
- Collaboration Agreements
- Supply/ Receipt of Goods & Services- Sale, Purchase & Distribution Agreements
- Contractor Agreements
- Facilitation Agreements
- IPR Agreement
- Any other trade or mutually accepted agreements and contracts between the parties.
EXISTING FACILITIES AND POTENTIAL OPTIONS FOR INTERNATIONAL DISPUTE RESOLUTION
LONDON COURT OF INTERNATIONAL ARBITRATION, LONDON
The LCIA provides efficient, flexible, and impartial ADR proceedings and over 80% of parties in pending LCIA cases are not of English nationality. The LCIA’s dispute resolution services are available, without any membership requirements. LCIA administers arbitrations under its own rules (LCIA Arbitration Rules) and the UNCITRAL Arbitration Rules.
SINGAPORE INTERNATIONAL ARBITRATION CENTER, SINGAPORE
SIAC is a not-for-profit international arbitration organization, which administers arbitrations under its own rules of arbitration and the UNCITRAL Arbitration Rules. SIAC is a global arbitral institution providing case management services to parties from all over the world. SIAC arbitration awards have been enforced in many jurisdictions including Australia, China, Hong Kong SAR, India, Indonesia, Jordan, Thailand, UK, USA, and Vietnam, amongst other New York Convention signatories.
HONG KONG INTERNATIONAL ARBITRATION CENTER, HONG KONG
HKIAC is a non-profit organization established under Hong Kong law. HKIAC also offers state-of-the-art hearing facilities, which have been ranked first worldwide for location, value for money, IT services, and helpfulness of the staff. HKIAC is the third most preferred and used arbitral institution worldwide. HKIAC administers arbitrations under its own rules (HKIAC Administered Arbitration Rules) and under UNICTRAL Arbitration Rules.
INTERNATIONAL COURT OF ARBITRATION, PARIS
The International Court of Arbitration was established in 1923 and has been helping to resolve difficulties in international commercial and business disputes to support trade and investment. The International Court of Arbitration is an arm of the International Chamber of Commerce. It plays an essential role by providing various customizable services for every stage of their dispute.
The purpose is to ensure proper application of the ICC Rules, as well as assist parties and arbitrators in overcoming procedural obstacles. These efforts are supported by the Court’s Secretariat, which is made up of more than 80 lawyers and support personnel from over 37 nationalities speaking almost 30 languages. The International Court of Arbitration administers under its ICC (International Chamber of Commerce) Rules for Arbitration.
WIPO ARBITRATION & MEDIATION CENTER, GENEVA
The WIPO Arbitration and Mediation Centre were to offer Alternative Dispute Resolution (ADR) options for the resolution of international commercial disputes between private parties. The arbitration, mediation, and expert determination procedures offered by the Centre are widely recognized as particularly appropriate for technology, entertainment, and other disputes involving intellectual property. WIPO administers arbitrations under WIPO Arbitration Rules and under UNICTRAL Arbitration Rules.
AMERICAN ARBITRATION ASSOCIATION, NEW YORK
The American Arbitration Association (AAA) is a not-for-profit organization in the field of alternative dispute resolution, providing services to individuals and organizations. The International Centre for Dispute Resolution (ICDR), established in 1996 by the AAA, administers international arbitration proceedings initiated under the institution’s rules. ICDR currently has offices in New York City, London, Mexico City, Singapore, and Bahrain.
AAA administers arbitrations under UNICTRAL Arbitration Rules.
DUBAI INTERNATIONAL ARBITRATION CENTER, UAE
The Dubai International Arbitration Centre (DIAC) is the largest in the Middles East. It was initially established by the Dubai Chamber of Commerce and Industry (Dubai Chamber) in 1994 as the Centre for Commercial Conciliation and Arbitration.
The DIAC provides local and international business communities with commercial arbitration services, including modern and well-equipped meeting and hearing rooms, and has a pool of experienced arbitrators from different nationalities and legal backgrounds. DIAC administers arbitrations under DIAC Arbitration Proceedings Rules and under UNICTRAL Arbitration Rules.
INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES, WASHINGTON DC
The ICSID is an international arbitration institution funded by the World Bank Group and established in 1966 for legal dispute resolution and conciliation between international investors and States. ICSID administers arbitrations under ICSID Convention Arbitration Rules as well as under other rules such as UNICTRAL Arbitration Rules and takes up ad-hoc investor-state and state-state cases.
The procedural rules for arbitration under the ICSID Convention may be used to settle disputes between an ICSID Contracting State—the term given to States that have ratified the ICSID Convention—and nationals of another Contracting State. The rules benefit from a robust enforcement mechanism, as Contracting States agree that an ICSID Convention award will be treated as a final judgment of their courts.
As of May 2016, 153 contracting member states agreed to enforce and uphold arbitral awards in accordance with the ICSID Convention.
VARIOUS PROCEDURAL RULES GOVERNING THE INTERNATIONAL ADR AVAILABLE FOR SELECTION
UNICTRAL ARBITRATION RULES
The UNCITRAL Arbitration Rules provide a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial relationship and are widely used in ad hoc arbitrations as well as administered arbitrations.
The Rules cover all aspects of the arbitral process, providing a model arbitration clause, setting out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings, and establishing rules concerning the form, effect, and interpretation of the award.
As per Queens Marry Arbitration Survey, 2021, UNCITRAL Arbitration Rules were chosen by three-quarters (76%) of respondents. UNCITRAL Arbitration Rules are used across all sectors in both commercial and investment treaty arbitration.
NATIONAL ARBITRATION LAWS
National arbitration laws can be found in the civil code of the relevant jurisdiction. This section provides suggestions for subject-specific resources collecting national arbitration statutes from countries around the world. The NATIONAL ARBITRATION LAWS were chosen by 28% of respondents as per Queens Marry Arbitration Survey, 2021.
BESPOKE REGIMES AGREED BY THE PARTIES
Bespoke Regimes are those terms and conditions, which are discussed and agreed upon by the parties. Arbitration can only take place if both parties have agreed to it. In the case of future disputes arising under a contract, the parties insert an arbitration clause stating the applicable regime for arbitration.
Parties are free to adapt the clause to their particular circumstances. For instance, they may wish to stipulate the number of arbitrators. Also, it may be desirable for them to stipulate the place and language of the arbitration and the law applicable to the merits.
As per Queens Marry Arbitration Survey, 2021, “BESPOKE REGIMES AGREED BY THE PARTIES” were chosen by 26% of respondents.
LONDON MARITIME ARBITRATORS ASSOCIATION
- The LMAA Terms are terms of procedure that are available to parties for incorporation into dispute resolution clauses in their maritime contracts.
- Where members of a tribunal accept their appointments on the LMAA Terms, those Terms then apply to and govern the procedure to be adopted in the arbitration reference.
- As per Queens Marry Arbitration Survey, 2021, “LMAA RULES” were chosen by 13% of respondents.