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Second, each participant must provide a substantive response to at least one posting from a colleague in the discussion, critiquing the initial post by appealing to legal and business considerations. This should be completed during Week 5.
3. Colossal management also needs to know whether arbitration is a good idea for a dispute resolution provision for both domestic and international contracts and why.The question has been asked as to whether it is a good idea to include arbitration as a dispute resolution provision in domestic and international contracts. Before answering this question, it is necessary to discuss alternative dispute resolution, arbitration, the advantages and disadvantages, and then what this means with regard to contracts. First, the overall goal of alternative dispute resolution (ADR) techniques is to resolve disputes without resorting to legal litigation (University of Maryland Global Campus, n.d.). Under ADR, arbitration is one of the commonly recognized techniques, in addition to mediation.Focusing directly on arbitration, this technique allows the participants to forgo litigation and solve their dispute using an unbiased third party. This third party is known as an arbitrator and has the authority to make a decision based on the presented facts of the dispute. Depending on the situation, arbitration may be voluntary or mandatory. However, including such a contract provision would likely mandate the parties to engage in arbitration if the need were to arise. Unlike mediation, arbitration yields a final dispute resolution in the form of an award. It is typical for the award to be in the form of monetary damages or equitable remedies.Arbitration also has many advantages. First, the arbitrator is generally an expert in the subject matter of the dispute and replaces an unpredictable group of jurors. The arbitrator is more likely to draw upon the aspects of law instead of personal feelings when determining the outcome. Second, the dispute ends in a resolution using arbitration and an award is issued. This award can be enforced, similar to an actual judge’s ruling. Next, the costs are significantly less than with litigation. The parties are still responsible for paying for the arbitrator(s); however, they avoid the court fees, legal fees, and other trial expenses (University of Maryland Global Campus, n.d.). Then, arbitration is a more private process than going to court to litigate a dispute. There is no need to publicly reveal any of the facts of the case with others outside of the process. Finally, ongoing business relationships are more likely to be preserved using this type of ADR. This is because an expert is in charge of reviewing the case and making a decision on behalf of the parties. Moreover, the setting is less competitive and the process follows a semi-formal format (University of Maryland Global Campus, n.d.).However, the following disadvantages should also be considered when making the decision to include an arbitration provision. With arbitration, the parties lose control of the dispute-resolution process. The parties are also less likely to appeal to the personal emotions of the arbitrator when presenting their side of the dispute. Furthermore, the parties lose their ability to continue negotiating a settlement. They give control to the arbitrator and must live with the arbitrator’s judgment.With regard to domestic and international contracts, an arbitration clause acts as a predetermined way for the parties to solve any future disputes. The contracting parties can be assured that disagreements will be settled in a cost-effective and efficient way, without having to go through the litigation process. This is also true on the international level. Organizations such as the International Chamber of Commerce (ICC) and the American Arbitration Association (AAA) provide arbitration services for international contracts (University of Maryland Global Campus, n.d.). Additionally, many of the world’s trading nations have agreed to enforce arbitral awards issued in foreign nations under the New York Convention (University of Maryland Global Campus, n.d.). This means more protection for the parties and limited circumstances that would allow a foreign nation to refuse to enforce the award.Recommendation: Based on the above information, it is a good idea for Colossal to include arbitration as the dispute resolution process in future domestic and international contracts. Arbitration is a way for Colossal to resolve any future disputes without having to go through a lengthy and expensive trial. Not only are arbitrators subject matter experts, but they have the authority to issue enforceable damages and remedies. Again, this is also true for any of Colossal’s international contracts as long as the other party has agreed to enforce arbitral awards and signed the Convention on the Enforcement of Arbitral Awards (i.e., the New York Convention) (University of Maryland Global Campus, n.d.). 4. The parent company, Colossal Corporation, has been sued in the country of Notso in South America. The lawsuit claims millions of dollars in damages due to supposed pollution at a mine that Colossal owned there. Since Colossal has already decided to exit that country and sold the mine there, the company’s regional VP believes there is no risk if the company is taken to court in Notso. He says that even if Colossal loses there and a court judgment is rendered against it, there is no danger because the company will have left the country. The VP needs to know if he is right.When evaluating the lawsuit involving the Notso mine, it is necessary to first point out that each nation has its own legal system (University of Maryland Global Campus, n.d.). The institutions that create the governing laws for each nation differ significantly from country to country (University of Maryland Global Campus, n.d.). Countries such as the United States apply the rules of the common law system. Under this type of system, the law is focused heavily on prior cases and often referred to as “judge-made” (University of Maryland Global Campus, n.d.). Conversely, countries such as South America are centered around the civil law system. In civil law tradition, the law is expressed in written codes that act as the rules of conduct (University of Maryland Global Campus, n.d.). Therefore, how each country would approach and rule on this case may be different.In addition to these concepts, there is no international “full faith and credit” clause that governs how different countries make judicial determinations for one another. Considering the topic of international law, many of the areas of this type of law are not definitive. Since each nation differs from one another, the actual rule in question also differs. Furthermore, there is no enforcement mechanism within international law. This allows nations to ignore the rules and not be at risk of punishment. Furthermore, the international law principle of sovereignty should also be considered. Sovereignty allows a state or nation to make rules appropriate to its territory and people. Under this, no state or nation has the right to impose its will on another territory. However, there is a certain amount of respect due between different nations that can help minimize conflicts.Before making a judgment on what to do next, Colossal should also take into consideration the different sources of international law and one of the bases for exercising a nation’s power. The sources of international law begin with customary international law which is derived from the practices that have developed over time and are recognized by different nations. International conventions and treaties are the established rules that have been accepted and signed by the nations. General principles of law are those laws that have been recognized by civilized nations and contribute to international law. Finally, judicial decisions by international courts (e.g., the International Court of Justice) and the opinions of legal scholars are also important sources of international law. Colossal must also consider the base for the exercise of a nation’s power that involves the territorial principle. This principle is universally accepted and is fundamental to sovereignty. Under this principle, a nation can control the events and people within its territory. With this, the question should be asked as to whether Notso can enforce its laws on Colossal.Recommendation: The above information assists in concluding that Colossal is in danger of being responsible for the damages in Notso; however, Notso may not be able to enforce the ruling. According to the international law principle of sovereignty, it is Notso’s right to impose its will on those within its territory. During the time that the pollution occurred, Colossal was still in control of the mine and present in the country. Therefore, the company should have been abiding by the rules of the territory. Since Colossal has sold the mine and is leaving the country, Colossal is not at risk of being “enjoined, fined, or arrested” according to international law (University of Maryland Global Campus, n.d.). However, it is recommended that Colossal attempt to settle this case with the country of Notso. Providing the country with a remedy would help the country clean up the pollution and help minimize any future conflicts or bad publicity for the company. ReferencesUniversity of Maryland Global Campus. (n.d.). Alternative dispute resolution. Document posted in UMGC MBA 630 9046 online classroom, archived at https://learn.umgc.eduUniversity of Maryland Global Campus. (n.d.). International dispute resolution. Document posted in UMGC MBA 630 9046 online classroom, archived at https://learn.umgc.eduUniversity of Maryland Global Campus. (n.d.). International law. Document posted in UMGC MBA 630 9046 online classroom, archived at https://learn.umgc.eduUniversity of Maryland Global Campus. (n.d.). Introduction to alternative dispute resolution. Document posted in UMGC MBA 630 9046 online classroom, archived at https://learn.umgc.eduless0 Unread0Unread0 Replies0Replies0 Views0Views
Question 4
Contains unread postsAinsley De Four posted Feb 11, 2023 7:26 AMSubscribeIn this case the VP is incorrect. An important aspects of the US federal system, (is) the acceptance by courts in one state of the judicial decisions made in another state. The Constitution itself requires that each state give “full faith and credit” to the judicial determinations of its sister states (Robert C. G. n.d.,) So, although there is no federal law that governs the recognition of foreign judgements; recognition and enforcement are a question of state law in the United States. In addition, The Alien Tort Claims Act is a US law on the jurisdiction of US courts in cases concerning violations of public international law. It allows for non-US citizens to bring civil actions before US courts in certain situations. This applies even if the events in question occurred outside the United States (ECCHR. n.d.,)ECCHR: European Center for Constitutional and Human Rightshttps://www.ecchr.eu/en/glossary/alien-tort-claims-act-atca/#:~:text=The%20Alien%20Tort%20Claims%20Act,occurred%20outside%20the%20United%20States63Robert C. G. (n.d.,) https://leocontent.umgc.edu/content/scor/uncurated/mba/2218-mba630/learning-topic-list/international-law.html?ou=722309more0 Unread0Unread0 Replies0Replies0 Views0Views
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