Law

Jurisdiction and Cross-Border Commercial Mediation in the EU

By Prof. Dr. Renate Dendorfer-Ditges & Philipp Wilhelm, DITGES PartGmbB

Mediation is increasingly considered as an alternative to settle commercial cross-border disputes. Regularly the question is raised whether the result of mediation will be enforceable. In this respect, it is advisable to draft the final agreement enforceable according to the law of that state in which enforcement is expected, e. g. as a notarial deed (see sec 794 para 1 no 5 German Code of Civil Procedure/ZPO), a settlement reached among attorneys (see sec 796a, sec 796b ZPO), or a settlement concluded by the parties before a court (see sec 794 para 1 no 1 ZPO).

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Law

New generic top level domains and new alternative dispute resolutions (Part I)

By Jonathan Agmon, Soroker - Agmon Advocates

As various new generic top level domains (gTLD) come into play new alternative dispute resolution mechanisms come into effect to deal with new dispute resolution load and the changing domain name space. At present some 20 gTLD comprise the entire gTLD space. These have been operating for many years, the most known among them are the .com, .net and .org domain name spaces.

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Law

Damages in Fraud Claims

By Nicholas Scott and Eleanor Hassani, Memery Crystal

In the recent case of OMV Petrom SA v Glencore International AG [2015] EWHC 666 (Comm), Flaux J, sitting in the Commercial Court, had to determine the correct measure of damages in a case where the seller, Glencore, had fraudulently delivered crude oil of a blend which differed from that specified in the contract. The Court determined that the correct measure of damages was the difference between the price paid for the shipments and the actual value of what was delivered as at the date of delivery. Although the case arises in the context of oil trading, the principles are applicable to all fraud claims, regardless of subject matter.

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Law

Arbitration: the Good, the Bad and the Ugly

By Nick Scott, Memery Crystal

International commercial arbitration is fast becoming the most popular means of dispute resolution for multinationals, particularly where one of the contractual counter-parties is a government or parastatal entity. The London Court of International Arbitration recorded a new high of 301 cases in 2013, up 10% from 2012, which may be down to arbitration’s more effective international enforcement regime. Figures for 2014 are not yet available  but are thought likely to continue this upward trend. This is a high-level summary of the advantages and disadvantages of arbitration when compared with litigation in England, which should be considered by in-house lawyers and commercial decision makers when deciding on the most appropriate dispute resolution procedure at the time of entering into a contract.

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Law

Hungary: Electronic court proceedings

By Dr. Attila Kovács, Kovács Réti Szegheõ Attorneys at Law

As of 1 July the rules of the Hungarian Act III of 1952 on the Code of Civil Procedure (“CPC”) provides for comprehensive changes in civil proceedings, including bankruptcy and liquidation procedures. While electronic communication with the court of registration for companies has already been institutionalized in 2008, and while the orders for payment procedures are handled electronically since 2009, the – in most cases – obligatory communication by electronic means in civil proceeding as of 1 July 2015 will be the next step to the “paperless” legal procedures.

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Law

International Commercial Arbitration – Lost? Take a glance at our Road Map! – Part I

By Patrizia Giannini, S4B Solutions 4 Business

In general – or, roads you can drive down in your sleep! – International commercial arbitration (ICA) involves a business-related dispute among citizens of different nation-states, including investor-state arbitration between foreign private parties and state entities, according to bilateral investment treaties (BITs). ICA is private, but parties may contest the agreement to arbitrate, or the award, in Court.

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Law

Mediating with the new Kid in Town

By Leslie A. Berkoff, Moritt Hock & Hamroff LLP

Mediation in the bankruptcy context can present a very unique situation as the party acting as the plaintiff in a contested matter may not necessarily be the business owner but rather a court-appointed party who is managing the litigation long after the debtor has failed. In these cases, the plaintiff has no historical knowledge of the facts, or underlying business arrangements, which relate to the dispute at hand; moreover, it is entirely possible that the parties with knowledge of these facts are long since gone.

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Law

Multi-tiered Dispute Resolution Clauses in International Contracts

By Prof. Dr. Renate Dendorfer-Ditges, DITGES PartGmbB

Multi-tiered dispute resolution clauses provide for at least two consecutive stages of dispute resolution and they enable the respective parties full use of the ADR-toolbox. Such clauses, also referred to as “multistep ADR clauses” or “Wedding Cake Clauses” have a filter effect by using the escalation ladder from negotiation without a third party involved, over mediation as an amicable process including a neutral third party, both focusing on “win/win”-results. The ultimate ratio is arbitration as an adversarial “win/loose”-proceeding.

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