DISCUSSING INTERNATIONAL ALTERNATIVE DISPUTE RESOLUTION -KOMPETENZ-KOMPETENZ THE ARBITRATION ACT 1996
The two courts had an agreement that applying of the Act’s section 103(2) needed a rehearing regarding the contention facts but not a reviewing of the awarding. Dallar was found to highlight the necessary divergence for the existing pro-arbitrating and pro-enforcing thinking regarding the English law as well as the truth of practicing in English courts because little deference was affordable to international arbitral awarding in challenging circumstances for enforcements regarding the section 103 (2). Dallah was then given the go ahead of appealing in the Supreme Court (Totaro, 2010, p. 18). The allocating of jurisdictional competence in arbitral tribunals and English courts was applied. Before Dallar, there existed a variety of different cases highlighting the existing tension for English legality community’s pro-arbitrating and pro-enforcing attitude as well as the Act. The allocation of jurisdictional success was to the courts but not foreign arbitral tribunals. There have existed challenges in the substantive jurisdictions in arbitral awards as per the Act’s section 67.
COMPARING SECTION 67 TO THE FINALITY OF ARBITRAL DECISIONS
Just as the case in dallah, latest case laws indicate that the consideration of the challenges in substantive jurisdiction as per section 67, the courts carry out a total rehearing of the subject matter but not reviewing the tribunal’s ruling (Scott, 2011, p. 24). Arbitral tribunal’s determination regarding the constitution of a tribunal and the issues given for arbitration as per the arbitration covenant will be reopened for rehearing as per the standards of the courts. The challenges will be assessable for enforcement as the start off question (Claudiu, 2012, p.26). Section 67 forms the mandate provision because the parties that agree in international arbitrations will not exist.
The tribunals with the application of English law had its jurisdiction as the basic issue in arbitrating. Their ICC tribunal considered that as per the reference terms it was supposed to tackle the substantive jurisdiction (Schwartz, 2011, p.36). The issue regarding Serbia’s conferring on ICC tribunal’s jurisdiction in determining the successor for the Serbia’s union or Montenegro for those needs regarding the contractual obligation with Imagesat and then if it belonged to the arbitration agreeing. Their High court’s use of the Act’s section 67 is critical. As per this respect, it was ruled that application of Azov Shipping Co. v Baltic Shipping Co. as per the challenge regarding section 67, the court had a determination of the arbitrator’s jurisdiction and the correctness of the decision made. In making the enquiry, their court did not have a preconception of making a right decision by the arbitrator (Schwartz, 2011, p.37). For Serbia, it was stated that an arbitrator’s determination was to be provisional. Sweeping pronouncement was not easy for reconciliation with propositions’ awarding that was the last and legally binding with a subjection to little judicial oversights. The tender regarding its pronouncement was tense as per the judicial reviewing about the limitation of arbitral awards for the substantial deferring that was given to their arbitrator’s decisions.
Their highest court had no consideration of controversy in the carrying out of a rehearing of the arbitral evaluation on jurisdiction. Habas kept aside the interim last arbitrating awarding for jurisdiction which found out that their parties did finalize the arbitrating agreement. The particular contract did not have the arbitrating clause that the terms were to be as per the previous fourteen contracts (Lynch, 2012, p. 47). Referring to the agreement on the former contract was similar to their agreements on eleven of the contracts by the members that had been prepared by respondents as part of the Britain’s arbitrating clauses. This did not consider the three contracts that did not have arbitration.
The solving of disputes in courts of law can take a lot of time. Given that there are a huge number of cases pilling up at the courts, it will not be easy for the processing cases to be carried out fast. The jurisdiction procedures take a lot of time and hearings will be set for extended time periods. It is for this reason that the international alternative dispute resolutions comes in to settle the differences that are preexisting (Lynch, 2012, p. 48). The court procedures are meant to have hearings related to all the facts for any given case. At times particular sources of evidence will not be available for the judges. At such times the hearings will have to be adjourned to future dates and this will be a delay with an implication of unnecessary time to be spent on a particular case.
Every case that is submitted to the courts of law will require an allocation of the time for processing. Such time allocations will be during business hours and the normal business of the entities that are in question will not be as normal. This is due to the fact that the Chief Executives of those entities that are conflicting will be spending time in the courts and they will not be able to carry out the normal business of the entity successfully (Dominik, 2011, p. 56). The courts also have standardized procedures that cannot be avoided. The failure to avoid the standardized procedures will also have a time implication in the sense that more of the parties’ time will be used in the hearing of cases. The International alternative dispute resolution therefore sets in to have a check on such limiting factors of the court process. All the necessary factors of consideration in the ruling process will be considered in coming up with the most amicable solution for the dispute in question. The solving of business issues through this procedure has been considered by most of the international community to be a process that is normally utilized to the benefit of all the parties. The time spend at the International alternative dispute resolution will be minimal. Presentations of the facts relating to a particular dispute will be fast (Ustac, 2012, p. 67).
The arrangement that is created for enabling a fast judgment in such cases is one that is reviewed from time to time. There are adequate policies that have been created to ensure that standardization of the procedure in dispute settling is ensured to the advantage of the parties under the conflict. Professional standards are normally set that facilitate the coming up guidelines regarding the best way of finding solutions to the issues of conflict. The adherence to set procedures in the making of rulings is normally restrictive in the sense that they have to be followed to the letter. Presentation of the material facts will be enabled through a standardized procedure. Cases of unnecessary time being wasted in court cases will not be possible and the judgments will be made fast. The International alternative dispute resolution also has mechanisms that ensure that all material facts are presented for hearing.
The panel of the body has ways of carrying out the necessary investigations that will be useful in evaluating the rest of the related facts in little time (Ustac, 2012, p. 68). The solving of disputes through this process will be on a priority basis. The cases that are presented first are the ones that have an attention of the panel and there will be no issues of delay on the hearing of the issues. The body also carries its affairs in a professional manner by considering that the parties to any dispute that is being solved need to be back to business in the shortest time possible. Predetermined time durations for the hearings make it possible for the process to be carried out fast. The normal operations regarding the transacting parties will resume immediately a dispute is solved and the conduct of business will be as per the ruling made in the International alternative dispute resolution.
The court process at times may not have the applicable law in coming up with the right judgment. The existing case laws on the settling of disputes to not cover all the areas that may be subject to the conflicting of interest. The application of unrelated case laws in the making of judgments results in judgments that are not fair (Gary, 2009, p. 46). The cases that have been decided before may be irrelevant to any particular dispute currently existing between two parties. The court process there becomes inapplicable under different circumstances and it is for this reason that parties to the dispute may consider looking for assistance from the International alternative dispute resolution. The existing finding in the cases that have arisen before will not relate to all material facts of a particular subject. The conditions and circumstances relating to a particular case will be technically different. The rulings that have been made in court case before will need adjustments before the same rulings can be applicable to any current case of disputes.
The adjustment elements of the court ruling process may not be available (Gary, 2009, p. 47). The considerations made under the International alternative dispute resolution are conclusive and cover a wider area of study that justice will not be denied where needed. Case facts will vary from time to time and the reliance on earlier predetermined rulings may not be legally professional. The professional expertise of the panel at the International alternative dispute resolution always ensures that the vase situations are sufficiently considered from all the sides of the disputing parties. The utilization of expert opinion in the determination of the right ruling required is the key element of the resolution procedures. The experts available in the case of the resolution procedures will be adequately equipped in finding out the assurance of justice to all the parties to the dispute. The issue of past cases is irrelevant in the International alternative dispute resolution because the legal body aims at ensuring justice as per the current conditions and situations relating to any material facts of the case on the table (Gianna, 2012, p. 63).
Judgments in the case of resolutions will be as per the predetermined standards of the body that serves the interest of all the parties. Material misrepresentations will be minimal because the body has ways of determining the real representations that will be helpful in the coming up with a dispute’s facts. Cases in the past have arisen relating to incompetent judges who make rulings. Such incompetence is regarded as shortfalls in the maintenance of justice in the ruling procedures. The International alternative dispute resolution will not have the issue of incompetent professionals making the rulings. Incompetence on the case of judges before has been major determinants of the denied justice in past disputes. The court process heavily relies on the facts that are presented to the judges. Such cases have been an indication of the shortfalls of the judicial systems. The incompetent judicial systems will not affect the rulings to be made in the making of resolutions (Avery, 2011, p.82). Adjustments will be made to the kind of panel that will be in charge of making the decisions for the amicable agreement that will be expected to be for the benefit of all. Compete members of the panel facilitate the process of reaching the agreeable positions in the realization of order. The idea of unearthed facts will not exist in the coming up with resolutions given that the expected focus will relate to the true occurrence of the existing dispute.
The past transactions by the parties will go through a careful scrutiny that will be aimed at the realization of the cause for a dispute. In any dispute existing between parties, there always happens to the causing circumstances that contributed to its happening. These related leading or contributing factors to any dispute are always very useful in the determination of the initiator of the dispute or what could have been the cause (Gianna, 2012, p. 66). Such determination of contributing factors will be useful in the evaluation of the dispute resolution techniques that can be of advantage. The combination of the related circumstances will facilitate the fast making of decisions that are meant to be of a long term use to the parties. The idea of in depth scrutiny of the contributing factors facilitates insurance of justice granted that will not be biased on one side.
The due diligence offered facilitates the professionalism of the process of solving the disputes. Careful considerations will always be necessary in maintaining the justice assurance process that will be of benefit to all. The utilization of experts in the finding of the related facts makes the procedures successful because the inside trading of the parties to any dispute will be brought to the surface (David, 2012, p.52). Professional considerations made in the legal process will be the guiding factors in the resolutions. The International alternative dispute resolution is an advanced procedure that evaluates the legal implications of the decisions realized by ensuring that the long term implications will not affect the normal operations of one of the related parties. The business and legal aspects of particular perspectives will be the guiding factors in the maintenance of the best standards of resolving disputes. The mediation process is friendly and considers the interests of all those parties that are in dispute. Mediation calls for the understanding of the contributing factors to any dispute and it is for this reason that resolutions will be optimal. In any mediation process adjustments will be necessary in the standards of the body to meet the particular needs of the dispute.
REVISITING AZOV SHIPPING
The tension in disputes emphasizes the section 67 jurisdiction in Azov shipping where an examination is made on the court’s interpreting of the jurisdiction on the case. As the Azov Shipping dispute continued, the three different justices were Rix, Longmore and Coleman and every one of them commended on the section 67’s jurisdiction (Eno, 2011, p. 95). Rix first interpreted the extend for court’s oversight functioning as per section 67. The challenger was allowed to make a presentation of the case of challenging the other party’s claim regarding the issue on jurisdiction by relying on the oral presentations through making the challenge to be a total rehearing regarding what had happened in the eyes of an arbitrator. Rix had a consideration of the distinguishable Advisory committee for the Arbitration Bill 1996. The statement was that the court was expected to make a review the challenging arbitrator reward regarding the jurisdiction through the arbitrator’s findings.
Challenges on jurisdictions will detail the issues of facts but not matters of law. Coleman had a justification of the extended section 67’s jurisdiction through the explanation that an intention was on the refection of the principles for the arbitrator’s little jurisdiction of provisions as per the international Kompetenz- Kompetenz in determining conclusively for parties due to the natural intrinsic issue (Born, 2010, p. 78). The jurisdiction was only existed in the mutual assent of the issue. The view had a base in the 1996 DAC reporting which changed the Bill’s clause 30 to be the Act’s section 30. The Kompetenz-Kompetenz doctrine explains that the tribunal will not be last arbitrator in the jurisdiction because this was not of help in any way.
Court proceedings can be expensive to follow up. The question of searching for lawyers to represent one in the court proceedings costs a lot. Defense by a lawyer in a court of law will not always be the best alternative that a party can have. The court process will be expensive and might have no benefits incase the outcome is not favorable. All the related costs that will have been incurred in the making of follow-ups will be to the disadvantage of the entities’ profitability. The idea in any business is the maximization of profits at the lowest cost possible (Eno, 2011, p. 96). In the case of the court proceeding, the related costs will not be made up for if no compensations will be allowed. The financial implications on the court ruling process will affect a party’s income, balance sheet and cash flow statements. The returns to the shareholders will be minimal and all the stakeholders to a business will have been affected in some way. The International alternative dispute resolution involves the use of minimal costs relating to the resolutions of disputes. The use of lawyers will be minimal as compared to the case of court procedures.
The fair judgments made will be an indication of returns on the costs that will have been incurred. The repetitions of hearings will be less expensive as compared to the court process and the disputing parties spend less in the whole process. In the coming up with resolutions, it is not possible for the loosing party to be compelled to make compensations to the winning party because the process is normally considered to be of benefit to all. The process of reconciliation under International alternative dispute resolution aims at realizing a win –win situation. There is nor party that will be considered to have lost to the other because they will all have aimed at reaching a compromised position. Reconciliation aims at ensuring that the parties continue with business as usual and any future factors that could have contributed in disputes are eliminated. An understanding will be created in the mediation process because factors leading to the dispute will be unearthed (Born, 2010, p. 79).
It will be important for the disputing parties to have a common base point that will be useful in determining future standards of operation. In this kind of system, the focus will not be on who wins the case but considerations are on the best way of realizing a common point that will be considered to be of mutual advantage. The complications that would have been encountered in any normal court process are eliminated by the international mediators. The concept of justice for all at the International alternative dispute resolution will be maintained because the two parties will be considered to have benefited. Some issues in disputes will relate more to facts but not elements of law (Kohlhagen, 2012, p. 37). The determination of the facts contributing to any kind of dispute will be required in ensuring success of the resolution procedures. The fact analysis will be adequately carried out with a need to find out actually how the best negotiations will be of benefit. The arbitration process aims at coming up with common grounds that are meant to facilitate the healing process.
Some courts in particular countries will suggest that the parties in dispute try out an arbitration procedure before they file their litigations (Nicholas, 2011, p. 29). This has been considered to be a move that aims at minimizing the little issues causing the conflicts at any particular instances. After the disputes can not be resolved through the arbitration process, it is only then that court proceedings will be possible because a mutual agreement will have proved to be unrealizable. The process also allows a decision on the kind of individuals expected to make a decision on particular cases (Timothy, 2010, p. 73). Through the idea of choosing arbitrators, it is possible to have confidence regarding the outcome of the resolutions. International alternative dispute resolution will be applicable together with the present legal systems in any jurisdiction.
The International alternative dispute resolution ensures durable agreements, confidentiality and the preserving of the existing relationships through preserved reputations (Oscar, 2011, p.36). The practical solutions will be customized to the specific interest or requirements and the process does not result in rights or wants. The process ends up being suitable to multiparty and it is less complicated.