International Regulations Dealing with Alternative Dispute Resolution for International Commercial Disputes

Author:Angelica Rosu
Position:Danubius University of Galati, Faculty of Law
Pages:443-449
SUMMARY

At present, no generally applied international ADR rules exist. However, many legislative initiatives registered in time. The United Nations Commission on International Trade Law adopted, thus, a Model Law on International Commercial Conciliation in 2002. The European Union has also been active in the area of ADR presenting in May 2008 a Directive on Certain Aspects of Mediation in Civil and... (see full summary)

 
FREE EXCERPT
International Regulations Dealing with Alternative Dispute
Resolution for International Commercial Disputes
Angelica Roşu
Danubius University of Galaţi, Faculty of Law, avocatrosu@yahoo.com.
Abstract: At present, no generally applied international ADR rules exist. However, many
legislative initiatives registered in time. The Un ited Nations Commission on International Trade
Law adopted, thus, a Model Law on International Commercial Conciliation in 2002. The European
Union has also been active in the area of ADR presenting in May 2008 a Directive on Certain
Aspects of Mediation in Civil and Commercial Matters th at represents its most important initiatives
in this field. There are also various international conventions that deal with dispute resolution such
as the International Convention on the Settlement of Investment Dispu tes. The many legislative
initiatives are useful, even necessary.
Keywords: alternative, commercial, dispute, international, rule.
1. Introduction
Parties turn to one of the processes of ADR when they feel that resolution of their disputes should, for
various reasons, be sought outside the constraints of proceedings before national courts or a state-
supported arbitration system, and in a procedure which is the most informal possible. There is no doubt
that ADR represents today a new form of justice, a way of avoiding lengthy, complex and costly litigation
or arbitration procedures. Alternative dispute resolution has become increasingly topical in the
international business community. One reason for ADR being considered by the business community as
an increasingly attractive complement to litigation is that there are many situations today where the true
object of a commercial dispute is not adequately resolved by a court ruling or an arbitral award. The
interest in having the matter resolved may dissolve with the passage of the time necessary to try the case
before a court or an arbitral tribunal; monetary relief may be inadequate; the solution received from a
court or arbitral tribunal - though legally correct - may simply miss the point of restoring the commercial
relationship from which the dispute arises1.
Today, commercial contractual relations often develop into relationships rather than being limited to the
mere exchange of goods. It is clear, therefore, that the goals pursued by users of ADR go beyond legal
considerations. Their overriding priority is to prevent difficulties, ensure continued performance of the
contract, maintain the contractual relationship and make their joint project a success. This is more
important than the dispute itself, even though ADR might fail and also have a negative impact on the
ensuing litigation or arbitration. Growth in the use of ADR simply reveals that companies are increasingly
aware of the fact that contracts often give rise to disagreements about their meaning or performance.
The purpose of this type of ADR is to ensure that the contract operates properly, rather than simply to
remedy the consequences of any failure in its performance2.
1
For details, see Carita Walgren, ADR and Business, in Jean Claude Goldsmith, Gerald H.Po inton, Arnold Ingen Housz, ADR in
Business. Practice and Issues across Countries and Cultures, Kluwer Law International, The Netherlands, 2006, p. 3.
2
F or details, see Jean-Francois Guillemin, Rea sons for Choosing Alternative Dispute Resolut ion, in Jean Claude Goldsmith,
Gerald H.Pointon, Arnold Ingen Housz, ADR in Business. Practice and Issues across Countries and Cultures, Kluwer Law
International, The Netherlands, 2006, p.21-52.
443

To continue reading

REQUEST YOUR TRIAL