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Commercial arbitration in the United States

2018-10-10 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- Commercial arbitration in the United States,供大家参考学习,这篇论文讨论了美国的商业仲裁。早在二十世纪,支持以合同方式约定未来纠纷交由仲裁裁决的联邦规约就已预示着美国仲裁新时代的到来。然而,二十一世纪初,人们却普遍认为美国的商业仲裁条款类似民事诉讼的“司法化”。为了更有效地解决范围广泛的商业纠纷,包括许多大型的、复杂的案件,仲裁程序往往变得更冗长,更详细。仲裁的出现和其日益增长的诉讼相似性,对仲裁在冲突管理中的作用产生了许多影响。

Commercial arbitration,美国商业仲裁,assignment代写,paper代写,美国作业代写

As early as the twentieth century, federal statutes supporting contractual arrangements to submit future disputes to arbitration heralded a new era of arbitration in the United States, with lawyers supporting arbitration by avoiding "unnecessary disputes with the atmosphere of a courtroom trial." However, at the beginning of the 21st century, it was widely believed that the commercial arbitration clause in the United States was similar to the "judicial" of civil litigation, which was formal, expensive and time-consuming.

The nature of arbitration has changed since the arbitration process took over the areas of cases that have historically been reserved by litigation. Arbitration proceedings tend to become longer and more detailed in order to more effectively resolve a wide range of commercial disputes, including many large and complex cases. One is the discovery before hearing. Arbitration hearings are now often conducted after a number of discoveries, including the discovery of testimony. Because discovery procedures have historically taken up most of the costs associated with litigation, the route of discovery by arbitration is particularly noteworthy. While many arbitrators and some arbitration rules are designed to hold the line on excessive discovery, it is unusual for lawyers to agree to apply discovery procedures similar to trials, and even to some extent use standard civil litigation rules. With the intensive discovery before the hearing, the trial practice is enhanced by the moral rules pursued by the enthusiastic lawyers. Failure to do so would appear to be tantamount to incurring malfeasance claims for lawyers accustomed to full discovery.

At the hearing stage, "making a summary of a case, etc." is a primary concern in large or complex cases. The difficulty of finding a mutually acceptable date for a three-person arbitral tribunal is compounded, as is often the case in international commercial arbitration. The parties are happy to take advantage of this reality and hope to benefit from the delay. As in litigation, defendants with substantial economic power may seek to delay on tactical grounds; Resourceful lawyers are good at slickly delaying time for plausible reasons.

The third is the post-trial procedure. "Judicial" arbitration can also be observed at the post-hearing stage. The final nature of the award is an enduring truth of the arbitration. According to the federal arbitration law ", "the revised the federal arbitration law" regulation, of judicial review of arbitral awards are strict limits on the basic process of defects, such as can only be based on "bribery, fraud, or improper means to" get the arbitral award, "arbitrators obvious bias or corruption," bias of the arbitrators appear similar to the "not to listen to the facts and evidence of wrongdoing on matters beyond the arbitrators permission decision or not for subject matters to make a final and the award to the arbitration cannot fulfill completely to determine the limited reason to review. Arbitration decisions have long been seen as more "impregnable" than court decisions.

Published in 2000, the revised federal arbitration law, formerly the template for arbitration laws in 35 states, incorporated many new elements to reflect the "legalization" of arbitration. These measures include the establishment of judicial and arbitral authority to adjudicate provisional relief; Authorizing the court to strengthen arbitration hearing where appropriate; Clearly stipulate the obligation of disclosure of arbitrators; To grant an arbitrator general right of disposal; Establish the necessary conditions for hearing notice; Allow the parties to hire a lawyer to authorize an arbitrator to issue a subpoena, to admit testimony, and to supervise the discovery of the arbitrator; A variety of arbitration remedies are permitted, including punitive damages authorized by law and regulation and attorneys' fees. At the same time, the shrinking of litigation resulting from civil tort reform and other developments has forced long-established litigants into the practice of American or international arbitration.

The emergence of arbitration and its growing similarity to litigation has had many effects on the role of arbitration in conflict management, and has also made people disappointed and frustrated with the increasingly litigious arbitration process.

"Embracing alternative dispute resolution" poses a challenge to arbitration. In the United States, the United Kingdom and other common law jurisdictions, businesses, as well as courts, institutions and communities, are playing an important role in the trend towards a change of approach towards mediation and other non-binding third party intervention conflicts. Mediation, early neutral evaluation, the dispute review board and other strategies for negotiating conflict resolution have become accepted functions of the court and administrative procedures.

The "thin slice" model explored by Malcolm gladwell gives us new ideas about a pattern in which the human subconscious is able to identify situations and respond based on very rapid or brief "slicing experiences." His point is that considerable and unnecessary effort can be avoided by developing a relatively quick judgment based on selective critical data.

The various potential benefits and functions of mediation have become increasingly familiar and understood by litigation lawyers or dispute resolution departments. Moreover, disputes, whether of commercial and personal interest, legal or DE facto discovery, and relationship considerations in some cases, can be included in the discussion of mediation. More ideas, radical resolution of disputes and relatively little risk make mediation a realistic promise to shorten the cycle and reduce costs. In summary, mediation is the most popular and successful "thin slice" model in conflict resolution.

It is generally believed that mediation is more conducive to cost savings and speed of solution, as well as general satisfaction. It is usually significantly less than the cost of a factual determination of a case and can also help to reduce or waive substantial exchange of information and discovery procedures. The privacy and confidentiality of parties also tend to be more fully protected and the risk is often significantly reduced. While the parties may have the advantage of substantial third-party expertise in arbitration, private mediation is very likely to resolve the dispute in a manner satisfactory to both parties and with a wider range of potential outcomes, as indicated above.

Several years ago, the international institute for conflict prevention and resolution issued a set of guidelines for business parties specifying arbitration as the final step in the recommended three-step approach to business dispute resolution: negotiation, mediation, and binding arbitration. These three steps constitute a complete set of dispute settlement procedures. Such dispute settlement "filtration systems" acknowledge that the logic of the methods initially relied on is often less formal, but more flexible and efficient, and less costly than binding rulings that, if all failed, turn only to arbitration as a final step. Similar provisions for multistep dispute resolution are now common in commercial contracts and related court decisions.

The current challenge to arbitration's commercial market share is more than a non-binding intervention strategy. For example, the global construction industry has gained considerable experience of other forms of "thin slice", mainly by making non-binding decisions by experts early in the conflict. These other procedures include the dispute review board, and "statutory adjudication".

Upstream: the evolution of system conflict management methods. The growth of mediation and other alternative dispute resolution mechanisms has encouraged many thoughtful people to change their approach to conflict resolution. As a strategy this can lead to greater reliance on negotiation or a more systematic approach to conflict management. Although relatively few companies actively develop specific business dispute management policies and procedures, all of this may be gradually changing. Research by queen Mary suggests that the importance of governance over corporate dispute resolution policies is growing. Future options for U.S. commercial arbitration practices

The evolution of "litigious" arbitration, the growing popularity of mediation and other "thin slice" dispute settlement methods, and concerns about fairness due to the use of binding arbitration in standardized contracts for individual consumers and employees have contributed to current dissatisfaction with arbitration and questions about the future of arbitration. In order to solve the current problems and promote the improvement of satisfaction of commercial arbitration, the following dimensions can be used for path selection.

The choice of core values as arbitration. As companies, transactions and disputes vary, and the business objectives and needs of the parties vary, no form of arbitration is always appropriate. For this reason, the core and primary value of arbitration is not speed, economics, privacy or neutral expertise, but the ability of users to leverage their choice of critical processes to meet their particular needs.

The difference between arbitration and litigation is "choice". If the parties really want to speed up the process and treat speed and economy as the primary goal, then it is possible to organize and implement "lean programs" that achieve these goals at the expense of a variety of program affiliate programs. Quick arbitration can also be used to strike a balance between the need for a final award and the need to maintain an ongoing business relationship.

Corporate clients, under the guidance of a competent attorney, can determine how best to position themselves and when to introduce arbitration into the settlement of commercial disputes and what arbitration procedures to use. If business parties really want arbitration to be a swift and effective process, they must take responsibility for process control. In other words, the agent, not the agent, must act like the agent. Ideally, it would consider not only the options at the time of the conclusion of the contract, but also the various conflict management strategies in the arbitration.

In order to be "responsible" and to make effective choices for commercial arbitration, the first step should be to identify the objectives and priorities to be achieved by the conflict resolution mechanism. These objectives may include: flexibility, low cost or cost-effectiveness, "fairness" and "justice," due process of law, predictability and consistency of results, final and binding decisions, and so on. It can be said that the established objectives and priorities are a litmus test for the selection of procedures.

One of the biggest obstacles to effective implementation of program matching for parties' goals is the lack of alternative program templates in the programs published by the primary arbitration service provider. While the United States has made great efforts to develop standard arbitration clauses, arbitrator training and other quality control measures, no single supplier provides direct guidance on the relevant goals. Some of the larger providers also tend to create a single, generic set of business programs.

In the United States, arbitration has increasingly taken on the characteristics of litigation as courts and parties have pushed arbitration into the primary role of adjudication. While this evolution is understandable, it has left many arbitration users frustrated by their inability to satisfy the usual attributes of a program's speed and economy. The growing emphasis on mediation and other emerging "thin slice" approaches highlights the inadequacies of arbitration in these areas and creates the need for arbitration as the final step in dispute resolution.

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