1. Can Alternative Dispute Resolution address the problems of international jurisdiction? Outline of Essay
1) Overview of international jurisdiction
2) Introduction of ADR
3) Types of ADR:
Describe the pros and cons of these ADR and how they resolve disputes 4) Benefits of ADR over litigation (eg saves time and costs) 5) Limitations of ADR (the outcome may be disputed)
Dispute resolution management for international construction projects in China
Experts’ views and findings
Similarly, the experts were asked to refer to their experience and identify in ranking order the most popular dispute resolution mechanisms for resolving disputes of international projects in China. The results are shown in Figure 2. As expected, negotiation is found to be the most commonly used method (100 per cent of the 40 experts choose the method). Negotiation is not normally included in the study of formal dispute resolution methods because it can take any form, and the process and results are considered as commercial dealings that are seldom disclosed for experience sharing. After negotiation, arbitration (95 per cent frequency) is the most popular.
The experts suggested that negotiation should be employed as the first method to resolve disputes. Unlike mediation and arbitration, negotiation does not involve a third party in the process of resolution. Some of the identifed advanatges with negotiation are: speedy resolution; flexibility; quick and simple procedure; informality; and privacy. The disputing parties would get together to discuss the problem voluntarily and reach a mutual agreement. Resolving disputes through negotiation is an indispenable part of construction project management. It is an essential skill that senior management should learn and master.
As the Chinese court rulings are, like their English counterparts, subject to appeal, which means litigation could drag on for years with the local law courts system. The problem is that people, not only the foreigners but also the locals, have reservations over the competence of judges in some of the law courts in China (Feinerman 1995). On the other hand, arbitration is highly regarded by the people. Arbitration panels are made up of a panel of experts, sometimes including experienced experts from oversees, which improves the quality of hearings and awards. Furthermore, the proceedings and rules of arbitration in China closely resemble to international arbitration rules (CIETAC, 2000).
Need to harmonize arbitration
However, using arbitration in international projects is not a panacea for all disputes; it has its drawbacks as well, for example, problems associated with the harmonization of international arbitration laws. Cremades (1998) commented: “international arbitration is presently undergoing a process of harmonization in order to achieve a pleasing effect: the adaptation of legal system throughout the world to a global economic market”
On the issue of arbitrators’ jurisdictions, research in the UK (Black and Fenn, 1999) shows that 29.3 per cent of 140 arbitrators have had their jurisdictions challenged by the parties in dispute. Of the 43 samples from the same group of respondents, 76.7 per cent of them said that the challenge did cause extra cost. The study also indicated that arbitrators were overwhelmingly in favour of fast-track procedures, and were much more likely to initiate using the procedures than the disputants. If problems of such magnitude exist in a single country, the ideal of a “global law” for dispute resolution is a very distant goal indeed. When parties are at an advanced stage of dispute, they will do whatever is necessary to achieve their objectives, including challenging the legal procedures, even if it involves extra expense. Arbitrators, on the other hand, seem to be more eager than the parties to resolve the dispute as soon as possible....