The Nationwide Academy for Dispute Resolution Ltd.Stockland Cottage, 11 James Street, Treforest, Pontypridd, Mid-Glam. CF37 1BU. UK.
Tel +44 (0)1443 486122 : Fax +44 (0)1443 404171
Until now the main fora for international commercial dispute resolution have been
The problem here is that the court systems of most countries are legalistic, formal, slow, expensive, public and only enforceable within the jurisdiction of the court, which may be of little use if the losing party has all his assets in another jurisdiction. Less than 7.5% of litigants ever succeed in maintaining commercial relations following a judicial dispute. There is no common private international law.
The American Arbitration Association has been active in the pro-motion of mediation as an alternative to or as a precursor to, arbitration both domestically in the USA and internationally for over 80 years. The International Chamber of Commerce (ICC) at Paris, provides mediation and conciliation ser-vices. Mediation and conciliation have been provided by the Arbitration Conciliation Advisory Commission (ACAS) in the UK for over 40 years and the London City Disputes Panel has provided commercial mediation services since 1994. In the People's Republic of China mediation is the primary method of resolving commercial disputes. Mediation now accounts for 20% of dispute set-tlement business in Australia. Court ordered mediation has been available in Canada since 1998. The international enforcement of mediation settlements is straightforward. Since June 2000 The Chartered Institute of Arbitrators (CIArb) lists and nominates mediators. NADR has provided mediation in the US since 1982 and in the UK and Malaysia since 1999.
Now that a significant number of the major global trading nations have firmly established mediation as a viable alternative to the judicial settlement of disputes the time has arrived for the development of unified global mediation ser-vices. International mediation offers the opportunity to settle disputes without recourse to legalistic procedures - though the basis of the mediated agreement will be a recognition and understanding of the reciprocal legal rights of the parties.
In the international sphere this is of particular importance. Litigation and arbrita-tion calls for the application of "The conflicts of Laws". This can lead to arcane disputes about the substantive and procedural laws of the respective nations that govern the dispute and the jurisdiction of and procedures of the courts. Years can be spent settling these issues before the actual dispute can be considered by the courts. Mediation can transcend international boundaries of language, law, jurisdiction, ideology and culture, with the agreement being concluded subject to the law and jurisdiction of the state where the agreement will be enforced. Parties can be represented at a mediation by company personnel, insurance claims officers, practising and non practising solicitors, barristers, attorneys or even be self represented.
Mediation is a viable option for International Commerce trading in the ever expanding European Union, signatory nations of the Asia-pacific Economic Co-Operation (APEC) and member nations of the General Agreement on Tariff and Trade (GATT). Mediation cuts through bureaucratic red tape, enables parties to bypass intergovernmental restrictions that strangle international commerce and empowers the parties to co-operate together in an efficient and effective manner.
Organisations proposing to engage in international trade now have the option of including mediation/arbitration dispute settlement clauses in their contracts. Mediation removes the threat of expensive litigation should a dispute arise and enhances the commercial spirit of co-operation, maximising the concepts of dispute management and dispute resolution as opposed to the prevailing mania of distrust and litigation fever. Mediation pro-vides a viable and valuable security against default. However, in the event that the mediation fails the adjudicative ADR process provide a fail safe mechanism which guarantees to bring the dispute to an end.
The leading US corporations listed in the Fortune 500 have embraced the commercial advantages and protection of mediation. Internationally mediation can enhance international trade and international commercial relations enabling both commerce and nations to maximise their participation in the global economy. In the USA and increasingly in the UK, government designed dispute resolution systems are being introduced. In order for businesses to retain control of dispute settlement, industry and commerce would be well advised to consider seriously embracing a system of ADR, designed and tailored to meet its needs.
The adjudication model introduced into UK law by the Housing Grants Act is limited to commercial construction disputes. Within the industry adjudication has been a resounding success. However, the scheme has no international application. The model can be used for non-construction contracts in the UK and globally by voluntary adoption, governed by terms and conditions that echo the statutory provisions. NADR established its international adjudication service based on contract terms in September 2000.
Arbitration has been the primary alternative to the courts in the UK for over 400 years and has been the main dispute resolution mechanism for international contracts for two centuries. The Chartered Institute of Arbitrators (CIArb) and the London Court of International Arbitration are the main providers in the UK and operate a global remit. The American Arbitratation Association is the main provider in the US. The People's Republic of China has established CIETAC arbitration for international trade disputes. The International Chamber of Commerce (ICC) provides global provision. There are many other arbitration providers. NADR has provided arbitration services in the US since 1982 and in the UK and Malaysia since 1999.
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