Understanding International Laws And Dispute.

International Commercial Litigation and Arbitration
Question 1

Introduction

The Federal Court Rules is the major document adopted for use in Australia highlighting the various rules and procedures applied in international relations. Rule 10.42 of the Federal Court rules highlights the items that permit service outside jurisdiction on the basis that the contract was made in the jurisdiction. Specifically, item 8. In this instance the jurisdiction is Australia and subject to the application process for the services highlighted under item 10.43 of the same document, an originating application or an application bound by rules defined in item 7 of the rules, may be served to a person outside the jurisdiction. Some of the other items also offer proceedings based on contract breaches or causes of action occurring within the jurisdiction that the contract was made in.

I agree with the argument regarding grounds of jurisdiction, for the same reasons that the jurisdiction within which contracts are made are normally by chance as some of the contracts are not premeditated. As such, given the difference in laws and rules used by different countries and jurisdictions, in addition to the wide range of international litigation and arbitration laws, a lack of a common law to be adopted by two different parties and/or jurisdictions may not be in existence at the time of signing the contract or occurrence of a dispute. As such the laws and rules adopted are of the jurisdiction within which the dispute has occurred and may not necessarily be adequate or even fair to those receiving services outside the said jurisdictions.

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Conclusion

Development of contracts are always underpinned in specific legal systems and or rules and regulations which vary within different jurisdictions thereby a contract made within a specific jurisdiction may not be sufficiently sustained in a different legal system within a different jurisdiction.

Question 2:
Benefits of, and risks associated with, conceptualizing international commercial litigation as a product?
Introduction

With the developments of rules and regulations governing international relations between different countries, as well as internationally applicable laws such as the Federal Court Rules and the common wealth rules, different countries are bound to come at crossroads due to unfairness and other conflicts. Such developments have propagated the rapid emergence and growth of commercial courts to be able to handle international disputes and deliver international arbitration. These courts package international arbitration process and its delivery as a product to parties involved in international disputes and as such beg the question as highlighted by Hwang (2015) as to whether they are competitors when it comes to international relations or partners.

Benefits

Conceptualizing international commercial litigation as a product, and the selling of this product by internationally and specifically designed courts for the task, has a range of benefits as well as risks associated with it. Hwang (2015) highlights among the benefits to include: development of a brand for international dispute resolution that has its contents in line with a sufficient variety of jurisprudence from different countries in order to accommodate various laws. This enhances the formation and enactment of a single and common global jurisprudence for international arbitration. Also conceptualizing the process and its packaging into a product helps to carter for the expected growth in cross border, multijurisdictional dispute resolution services which allows an ease in international trade and dispute resolution processes. This has a consequent benefit of enhancing a countries growth and development as a healthier trade relationship is developed between any two countries.

Another benefit include the harmonization of the existing differences between different countries legal systems, which have led to uncertainties and inconsistencies in the development of a free standing body of international commercial law to effectively govern international business relations. Establishing a conceptualization of the international commercial litigation as a product enables the development of common law that takes into account all the different legal systems represented and as such lead to the development of a harmonized front of jurisprudence for international arbitration application. Other benefits the action include provision of solutions to some of the limits of arbitration such as subject matter of dispute, right of Appeal as well as the joiner of specific parties to the disputes.

Risks

Hwang (2015) also highlights a variety of risks associated with the conceptualization of international commercial litigation as a product, some of which include: attracting parties who would not choose arbitration as an option, was it being carried out on national levels due to the fringe benefits that may be in for them. Hence the target for these courts would be parties with potential or actual disputes with their counter parts and who do not immediately think of arbitration as an option for dispute resolution.

This may overtime, lead to the corruption of the impartiality of these courts regarding the indifferent legal system, thereby favoring one side persistently due to the high stakes available on the international and global scale. Conceptualizing international commercial litigation as a product will also have the consequence of introducing competition for business as fledging international arbitration centers have to. This may lead to further corruption of the aspect of arbitration in dispute resolution especially at the international level and minimize efforts on international arbitration, a condition that may eventually affect the relations between different countries or jurisdictions regarding international trade and development and further minimize the level of economic development all across the globe.

Conclusion

The conceptualization of the international commercial litigation as a product however would be much more beneficial than it would be detrimental based on the risks it posess in the current international trade systems.

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References

  • Federal Court Rules 2011
  • Hwang, M. (2015). Commercial courts and international arbitration--competitors or partners?. Arbitration International, 31(2), pp.193-212.
  • University of Edinburgh (2018). International Commercial Law and Practice [online]ed.ac.uk. Availabe at

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