Dispute Resolution doing business in China

Rapid change has taken place in China since 1978 when Deng Xiao Ping led plans to re-establish a judiciary and a legal system. Since then, there has been a systematic attempt to legislate in all areas and to create and promote a judiciary and legal profession – now 150,000 strong – for the country’s population of 1.3bn.

What can a foreign party expect in relation to dispute resolution when doing business in China? If a dispute arises, negotiation is the best initial method of resolution. Most business contracts in China will include a clause requiring negotiation before other dispute settlement mechanisms are pursued. Negotiation might require attempts to enlist the help of local government officials by emphasising the importance of the foreign company’s investment.

If negotiation fails, it is arbitration that has for many years been the preferred method of resolution for foreign-related commercial disputes in China. Arbitrators have, at least until recently, been more experienced and better qualified in the subject matter than judges, and procedures have been more flexible and predictable. Arbitration also has the advantage of finality, in that awards are not subject to appeal whereas court rulings may result in a lengthy appeal process. Continue reading Dispute Resolution doing business in China

Dispute resolution in business partnerships

One of the most nettlesome challenges business partners face when entering into a new venture is selecting an appropriate dispute resolution mechanism.

The topic is inherently difficult for many entrepreneurs and executives because it requires them to address the possibility of failure at the outset of a relationship they necessarily believe will succeed. As a result, many joint venture associates and business partners simply gloss over the issue, refusing even to address it.

If their clients are willing to listen, many lawyers offer the standard list of dispute resolution mechanisms: arbitration, mediation and buy/sell arrangements, also referred to as Russian roulette or Texas shootout provisions. Continue reading Dispute resolution in business partnerships

Canada and the International Convention on Investment Dispute Resolution

Canada has completed the enactment of Bill C-9, An Act to Implement the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention). The bill has been passed by both the House and the Senate and has received Royal Assent.

This Act enables Canada to ratify a convention that has already been ratified by 143 countries, and that will provide Canadian investors with another internationally recognized instrument for protecting their assets abroad,” said Minister Bernier.

“This is welcome news for Canadian business,” said the Honourable David Emerson, Minister of International Trade. “Entrenching international standards will both promote and protect two-way investment between Canada and its trading partners around the world. These are key objectives of the Global Commerce Strategy.” Continue reading Canada and the International Convention on Investment Dispute Resolution

European Union and Israeli initiatives on arbitration and dispute resolution

The European Commission-sponsored program known as ADR-MEDA presented last week an intensive workshop and forum on the Israel Bar in Tel Aviv. The workshop was attended by leading experts in mediation to discuss alternative dispute resolution (ADR) issues in the legal and business community in Israel and the EU. The workshop and forum were both presented by Manon Schonewille of the Netherlands, the executive director of ACB Group.

Besides the workshop and forum, Schonewille used her visit in Israel to promote mutual efforts to advance awareness, acceptance and the use of international arbitration and mediation in the MEDA countries (Israel, Algeria, Egypt, Jordan, Lebanon, Morocco, Syria, Tunisia, Turkey and West Bank & Gaza), with special attention to small- and medium-sized enterprises (SMEs). The intention of the European Commission’s initiative is to assist SMEs to resolve international commercial disputes arising from business transactions between Middle Eastern countries and EU-based companies, in order to enhance business transactions between companies based in two or more Middle East countries. Continue reading European Union and Israeli initiatives on arbitration and dispute resolution

OECD urges to overhaul e-consumer dispute resolution – ODR or ADR

OECD urges to overhaul e-consumer dispute resolution – ODR or ADR

OECD countries have agreed a new approach to better protect the rights of consumers and make online shopping safer. They call on national authorities and business to make it easier, cheaper and quicker for people to resolve complaints and get compensation when they are unhappy with goods or services they have bought. The OECD member countries are: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States. The Commission of the European Communities takes part in the work of the OECD.

The OECD Recommendation on Consumer Dispute Resolution and Redress offers a roadmap for consumer protection agencies to address the practical and legal obstacles that many consumers face when trying to exchange goods or get their money back from firms, in their own country or abroad.

Most OECD countries already have laws or self-regulated schemes to help consumers, ranging from small claims courts to credit card protection and collective action lawsuits. But most of these were designed before e-commerce took off and are poorly suited to handling cross-border complaints. The Recommendation advises countries on steps they should take to update their laws to take into account these new developments.

It also calls on member countries to develop bi-lateral or multi-lateral arrangements in order to improve international judicial co-operation and use technology more effectively, making it easier to share information across borders.

In addition to a framework that details the basic elements necessary to an effective consumer dispute resolution and redress mechanism, it highlights the need for countries, both at a government level and via consumer protection agencies, to tell consumers who to approach when they have a problem and what they can do to resolve it. Companies should also set out clear, simple policies that explain what steps customers should follow to make a complaint and then have it resolved.

Consumers should also have the right to band together to take legal action against a firm, known as “collective action lawsuits.” This is important because in most European countries even if consumers have the right to take collective action in principle, there are so many restrictions that in practice they cannot. This means that their only option is take a firm to court on their own, which is usually too expensive for most people to even consider.

The Recommendation builds on a substantial body of OECD work carried out over the past decade on consumer policy issues. These include the 1999 OECD Guidelines for Consumer Protection in the Context of Electronic Commerce (www.oecd.org/dataoecd/18/13/34023235.pdf), the 2003 OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders ( www.oecd.org/dataoecd/24/33/2956464.pdf) and a 2005 Report on Consumer Dispute Resolution and Redress in the Global Marketplace (www.oecd.org/dataoecd/26/61/36456184.pdf).

See the full text of the Recommendation. For further information, journalists are invited to contact Peter Avery, OECD’s Science, Technology and Industry Directorate (+ 33. 1. 45. 24. 93. 63).

For furher information, see www.oecd.org/sti/consumer-policy

Distance Learning ODR Course

E-Arbitration-T, the University of Massachusetts and the ODR – Center for Information Technology and Dispute Resolution are pleased to announce the Online Dispute Resolution distance learning course during the spring 2005 semester.

A detailed outline of the course can be found at the ODR – Center for Information Technology and Dispute Resolution

The course will be taught by Daniel Rainey, Director of Alternative Dispute Resolution Services at the National Mediation Board. Continue reading Distance Learning ODR Course

What is the Uniform Domain Name Dispute Resolution Policy Database (UDRP-DB)?

What is the Uniform Domain Name Dispute Resolution Policy Database (UDRP-DB)?

The Uniform Dispute Resolution Policy (UDRP) established a process as well as a policy, a set of procedures for resolving domain name disputes as well as a set of standards to be employed in making decisions. The principal standard is ?bad faith? but in order to determine whether a domain name holder?s behavior violates this standard, a fairly detailed process was put in place for selecting panelists, obtaining and exchanging information, reaching a decision within a specified time period, and, depending upon the decision of the panelist, changing, canceling or preserving the registration.

The UDRP process, like all legal processes, consists of a string of coordinated communication and information processing activities. Parties, panelists and providers must acquire, retrieve, understand, communicate and evaluate information in order to reach the end point of the process. If any of these informational activities are burdensome, the process may not operate efficiently, and, if more burdensome for one party than the other, the process may be unfair. For example, obstacles placed in the way of searching for information can affect whether certain arguments are made and how they are framed, whether costs are higher than they need to be, whether professional expertise is needed, and even whether a respondent decides to participate in the process.

Uniform Domain Name Dispute Resolution Policy Database (UDRP-DB) Homepage

The UDRP-DB helps those who need information about UDRP decisions to actually obtain it, and it is more efficient information retrieval system to be put in place so that parties, lawyers, panelists, and others can obtain the information that they need in a systematic way.

Section 4J. of the UDRP states that. All decisions under this Policy will be published in full over the Internet. By the time as few as ten or twenty decisions appeared in early 2000, users of the UDRP recognized that there was a problem. While providers could post decisions at little cost and any user with a Web browser could read a decision, every additional case posted made it harder to find out which case one might want to read. One could read decisions which one could find but the growing universe of decisions made finding information in decisions increasingly difficult. Continue reading What is the Uniform Domain Name Dispute Resolution Policy Database (UDRP-DB)?