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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Law

Anti-Dumping in Australia

By Andrew Lacey, McCabes

In accordance with the 1994 World Trade Organisation Agreement on anti-dumping (to which Australia is a signatory), Australian legislation does not prohibit dumping (being the practice of exporting goods at lower than their “normal value” compared to the exporter’s domestic market) but rather regulates dumping through the imposition of “interim dumping duties” where it has caused material injury to the local Australian industry. In Australia, anti-dumping is regulated by the Customs Act 1901 (Cth) and the Customs Tariff (Anti Dumping) Act 1975 (Cth).

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Law

New European seizing proceedings – Part II

 

By Johan F. Langelaar & Michiel Teekens, TeekensKarstens

The Proposal for a Procedure of the European Parliament and the Council in creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters (COM, 2011, 445 final). This proposal contains a new and independent procedure for (international) European seizing proceedings related to bank accounts.

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Law

Arbitration - new Vienna Rules

By Aurelia Tramposch, Tramposch & Partner

In order to further enhance the attractiveness of Vienna as an arbitration venue, the revision of the Vienna Rules in 2013 strived to modernise and streamline arbitration proceedings. The revision was followed by an Amendment of the Austrian Arbitration Act this year, ensuring that annulment claims are directly decided by the Supreme Court as first and final instance.

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Law

The advent of court-based mediation in South Africa

By Cornelia van Heerden and Izak Potgieter; Heyns and Partners Inc.

While many of South Africa's trading partners have opted for mediation in civil and commercial disputes, the South African legal system has been slow to adopt mediation as an alternative dispute resolution mechanism. Mediation is only actively pursued in a handful of matters which it would benefit, primarily in the area of labour disputes and, to a lesser extent, in divorce matters.

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Law

The Australian court system: a debt recovery and insolvency perspective

By Andrew Lacey, McCabes

Debtors and creditors who have relationships to businesses or operations in Australia should have a general understanding of Australia’s court hierarchy, which operates in a tiered system. All states have lower courts. In New South Wales, the lowest court is the New South Wales Local Court, which has the jurisdiction to deal with civil disputes for claims up to AUD 100,000. One distinct feature of the NSW Local Court is its Small Claims Division, which hears claims of up to AUD 10,000. It also has less formal procedures and relaxed rules of evidence.

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Law

Securing claims in a summary document procedure in Germany

By Dr. Angelika Baumhof and Kristina Bauer-Hofstetter, Jakoby Dr. Baumhof

Do you have a pecuniary claim in Germany which can only be proven by evidence based on documents? Then you can quickly obtain a title to enforce your claim by using a summary document procedure (“Urkundsverfahren”). The summary document procedure exists as a court order (“Mahnverfahren”) or a normal civil proceeding (“Gerichtsverfahren”). In the summary document procedure, the plaintiff must prove their claim based exclusively on documents, and the defendant can only oppose by presenting documents. As a result, the court will not hear witnesses or experts. Such evidence can only be taken into consideration in the subsequent procedure (“Nachverfahren”) after the preliminary judgement.

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Law

Enforcement of Foreign Judgment in Japan

By Seiichi Yoshikawa, Koga & Partners Legal

In Japan, a judgment rendered by a foreign court ("foreign judgment") can be enforced by obtaining an "enforce-ment judgment" from the Japanese court. In brief, the party seeking an enforcement judgment raust show (1) the foreign court had jurisdiction over the dispute in question, (2) the defendant was properly served in the process before commencement of the case, (3) the contents of the foreign judgment and the procedure for issuance thereof were not in conflict with the Japanese public order and good morals and (4) the country to which the foreign court belongs provides a reciprocal treatment to a judgment rendered by the Japanese court.

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