Law
The essay must be a critical Assessment of the instrument by analyzing one or two issues/areas of harmonization under the instrument. Evaluate its successes and failures and make recommendations for better harmonization of the instrument in that area Eg. For International civil procedure & international commercial arbitration(Preferably). Here you can center your discussion on 1968 Brussels Convention (For International Civil Procedure) and UNICITRAL Model Law (For International Commercial Arbitration), Party Autonomy can be seen as an area of harmonization under the UNICITRAL instrument.
it will entail highlighting its successes and failure by considering what is obtainable in jurisdictions like the UK, Germany, US etc. as regards the issue and making use of primary and secondary sources like cases and statutes to valid the points made.
NOTE: Deal with International Civil Procedure and International Commercial Arbitration separately, by this I mean that each should be considered and dealt with separately ie. International Civil Procedure (including conclusions and recommendations) in the first part, then move on to International Commercial Arbitration.
NOTE: Please footnotes and references should be accurately done
I would like to see a draft of the contents or approach
Topic:
Choose from any of the contained in the Assessment Guidelines (Essay Question)
Essay Plan
Working title: International civil procedure & international commercial arbitration
Outline:
The essay evaluates the different procedures and approaches of handling international disputes between entities and individuals from different nationalities. The essay evaluates the International civil procedure & international commercial arbitration separately to evaluate and assess the strengths, weaknesses, necessary reforms that can be adopted and issues of conflict of law and harmonization.
Chapter 1: Introduction
The application and adoption of International civil procedure & international commercial arbitration in law to solve legal disputes and conflict have been a success despite the challenges experienced in the course of implementation. The challenges experienced are addressed by adopting positive and substantial reforms in the interest of achieving the desired goals and objectives. The reforms and changes adopted are achieved and generated through recommendations given by different relevant parties. The recommendations ensure the legal conflicts and disputes are addressed while incorporating the bests practices and appropriate and approached. In this case, the International civil procedure & international commercial arbitration involves the international policies, laws, and rules that must be observed internationally in the interest of justice and thus they need to achieve the set goals and objectives. In this regard, changes and recommendations are regularly adopted to maximize the advantages and benefits of the laws and policies while at the same time reducing the challenges associated with them. The international laws govern and regulate transnational operations to ensure entities and individuals from different nationalities can relate and interact effectively in various endeavours. In this case, the international commercial arbitration presents an alternative dispute resolution approach to handle commercial disputes and conflicts across the boarders can be out of court. On the other hand, the international civil procedure provides a reference desk for lawyers and their clients regarding practices, rules and civil procedures concerning litigation in a foreign jurisdiction. The instruments within International Civil Procedure and International Commercial Arbitration face different issues of harmonization and thus the necessary recommendations need to be adopted to improve the harmonization process.
Chapter 2: International Commercial Arbitration (ICA)
The international commercial arbitrations offer solutions to solving international commercial disputes and conflicts between individuals and entities across the border without the need for involving courts of law. Commercial or any other disputes and conflicts are normal and regular in the course of interacting and doing business between different parties (Cliff, 2004). Conflicts arise in the case that one or more parties in a business dealing or contract feel they are aggrieved or there are unlawful dealings. The aggrieved party seeks the intervention of a legal third party to enhance the solving of disputes. However, the conflicting parties opt to seek the services of the ICA for its advantages over litigations in courts of law. In this regard, an example of an ICA instrument in the course of solving international legal disputes and conflicts include the UNICITRAL Model Law. The UNICITRAL stands for United Nations Commission on International Trade Law and the model creates legal frameworks to harmonize and modernize trade across the borders for the various international partners and parties. Under the UNICITRAL the legislative and non-legislative instruments are increasingly adopted and incorporated in the commercial law thus making them effective in handling commercial disputes. Therefore, International commercial arbitration is made effective through the regular adoption of international treaties and non-binding forms of legislation. Under the UNICITRAL arrangement, the conflicting parties and the third parties involved are in a position to seek a position to effectively arbitrate commercial disputes without the need for courts intervention. The UNICITRAL as an instrument of ICA has strengths and weakness issues that adversely affect the harmonization process.
Issues affecting Harmonization under the UNICITRAL
1. Denying rights to the conflicting parties and transferring the same rights to a third party.
UNICITRAL Model Law has weaknesses that adversely impact the arbitrations process of international commercial disputes. The UNICITRAL Model Law disenfranchises the conflicting parties of their rights (Gabriel, 2008). The conflicting parties give up their rights to the arbitrators and other arbitration staff to evaluate the issues of the dispute and give a final decision and solution. The fact that the conflicting parties give up their rights denying the opportunity of one party correct on issues they feel are contributing to the erroneous arbitration decisions. Therefore, the giving up of the rights of the conflicting parties eliminates the conflicting parties from the arbitration process as they have to wait for decisions to be made without their contribution and participation.
2. Failure to observe the universally accepted rules of evidence gathering.
Under the ICA and especially the UNICITRAL the rules of evidence are disregarded thus the decision made is characterized by uncertainty (Gabriel, 2008). In the courts of law, there are rules of evidence that are strictly followed to the point that evidence that does not meet the threshold is not considered in the making of the final arbitration decision. On the contrary, in arbitration, all the evidence is considered despite them being ineffective to the point of introducing flaws in the arbitration decision made.
Strengths and weaknesses of issues affecting harmonization from the ICA instrument UNICITRAL.
UNICITRAL as an instrument is characterized by strengths and weaknesses that directly affect the harmonization in different ways in the course of solving international disputes. The strengths ensure that the ICA is effective in solving commercial disputes while the weaknesses present barriers and challenges in the course of solving commercial disputes (Bucy, 2010). There is a wide range of strengths/ advantages associated with the application of the UNICITRAL Model Law in the course of handling commercial disputes thus affecting the harmonization process.
The issue of denying rights of rights to the conflicting parties have strengths and weaknesses concerning the harmonization processes. First, the denial of rights has strengths in the fact that the rights are transferred to third parties that are involved in making the right decisions in the solving of the issues affecting the parties (Bucy, 2010). The third parties to the conflict that include mediators or arbitrators have the professional skills and qualifications to provide solutions to issues affecting the conflicting parties. The approach ensures that the third parties tasked with creating solutions for the issues of conflict are free and have the right space to make just and sustainable solutions for the parties involved. This fact ensures that the third parties from different nationalities can work together in the process a way of harmonization.
On the other hand, the denial of rights to the conflicting parties such as making contributions to the issues of conflict introduces weaknesses to the harmonization process. The fact that the conflicting parties have their rights denied makes their contributions to their cases limited thus one of the parties can be disadvantaged (Bucy, 2010). The parties to the conflict have no control of their case at it is left on the hands of the third parties who are tasked with evaluating the presented evidence and facts thus making decisions. The approach negatively affects the harmonization process as the presented evidence and facts are not backed up with the full contributions of the conflicting parties.
The failure to follow the rules of evidence gathering introduces strengths and weaknesses that affect the harmonization process. The failure to follow the rules of evidence gathering and handling meaning thus all evidence is admissible in the arbitration and mediation process (Bucy, 2010). This makes all the facts and evidence to be considered in the making of the decisions. On the other hand, the admission of all types of evidence introduces weaknesses to the arbitrations process resulting in flaws in the decisions made. In this regard, all the evidence is accepted without following the rules of evidence collection thus the evidence has defects that result in confusion and issues as the evidence does not meet the threshold of consideration. The issue if admitting every evidence in the arbitration process adversely affects the harmonization process since courts have strict measures of admitting evidence while the ICA process disregards the evidence rules resulting in confusion.
ICA conflict of law and harmonization
Conflict of law and harmonization arises in the course of the implementation of the ICA and UNICITRAL the issues of the issue of denial of rights to the conflicting parties and disregard on the rules of evidence collection. In this case, the court processes are strict, follow the rule of the law and defined process and procedure as compared to alternative dispute resolution are unpredictable and follow undefined processes and procedures. The mix of legislative and non-legislative practices results in confusion and conflicts that hinder harmonization.
ICA and UNICITRAL reforms
Reforms under the UNICITRAL Model Law need to be adopted to strengthen the arbitration process while reducing the challenges in the course of harmonization. The reforms will ensure that conflicts are reduced and harmonization is made effective. First, there is a need to introduce an advisory Centre on international law to ensure that consensus is achieved in the processes and procedures of arbitration (Faria, 2009). The advisory center ensures that recommendations are consistently adopted to have a positive impact on international commercial arbitration. Additionally, there are damages and multilateral conventional procedural reforms to enhance acceptance and uniformity. The approach ensures that consistency is adopted and maintained such as in the process of arbitration and damages calculations.
Chapter 3: International civil procedure (ICP)
The international civil procedure introduces a definite procedure and process of handling legal disputes across the different national borders. The ICP ensures that legal proceedings across the various are uniform thus making it possible to handle and execute international commercial disputes. Different nations have different rules that govern different operations and subjects thus introducing barriers in the course of handling international disputes and conflicts (Vasijeva, 2004). In this regard, the ICP is introduced to unify the different rules and simplify formalities to enhance effective system recognition and enforcement of judges across the borders. An example of an ICP is the 1968 Brussels Convention to enhance the jurisdiction and administration of judgments in commercial and civil aspects across the different nationalities.
Issues of affecting harmonization under the 1968 Brussels Convention
1. Increased abnegation of sovereignty to countries that are signatories to the conventions
The introduction of the ICP processes and practices amounts to the abnegation of sovereignty. The rules and laws under the ICP are supranational laws that are different from international laws. The supranational laws create legal structures that are above the state powers. The states are compelled to act under supranational laws (Kotuby, 2001). The supranational law disregards the sovereignty of nations thus the states cannot make independent decisions. Therefore, the supranational laws introduced through ICP undermine the sovereignty of nations.
2. The adoption of an exclusive choice of court agreements without consideration of other vital factors.
The ICP rules and proceedings have the weaknesses of the exclusive choice of court agreements. The rules and the process of exclusively use the stated agreements without considering the other factors such as sovereignty and the domestic laws, rules, and regulations of the conflicting parties (Watt, 2001). This approach makes the agreements to stand out in all aspects disregarding important factors that if overlooked they introduce flaws and injustices in the final decisions at the expense of the parties involved.
Strengths and weaknesses of issues in the 1968 Brussels Convention instrument concerning harmonization
The issues associated with the 1968 Brussels Convention have different strengths and weaknesses in the course of harmonization. The fact that countries that are signatories of the convention have their sovereignty reduced ensures that external parties can rarely influence the cases. There are no undue influences on the external third party making decisions (Kramer, 2008). This fact ensures that justice and fairness are achieved in the case issues disputes are solved under the conventions within the ICP. This approach and facts enhance harmonization as all countries will be attracted to be signatories of the conventions thus aligning their laws to the convention.
On the other hand, the convention has weaknesses that adversely affect the harmonization process. The abnegation of sovereignty makes the countries to lack independence in decision making. The decrease in sovereignty translates to a reduction in power to make both internal and external decisions (Kramer, 2008). The fact that signing conventions negatively affects the sovereignty of nations pushes away nations from signing the convention thus adversely affecting the harmonization since few nations will be operated under conventions that are viewed to be against the independence of nations.
The exclusive choice for courts introduces its share of strengths and weaknesses that are directly linked to harmonization. The exclusive choice for courts ensures that means that courts strictly observe the rule of law in terms of the decision-making process (Bayraktaroglu, 2003). This approach ensures that high levels of justice are attained thus attracting many countries to sigh the conventions in the interest of increased harmonization among the signatories.
The exclusive choice for courts makes strict legal decisions based on the rule of laws without the consideration of social, economic as well as other vital factors. The approach adopted in making decisions, in this case, is unbalanced decisions thus received with mixed reactions from the conflicting parties (Bayraktaroglu, 2003). Therefore, the harmonization is negatively affected as few nations will sign the conventions in fear of unjust and unfair rulings or decisions.
ICA conflict of law and harmonization
The abnegation of sovereignty and exclusive choice of courts introduces a substantial conflict of law and harmonization challenges between the domestic and international laws, treaties and conventions. Conflicts between the international and the domestic law exist and there is an urgent need for the harmonization to make the rules applicable in the interest of justice. It is vital to note that different nations have different rules and thus conflict in the application of uniform international law is a challenge. In this regard, the harmonization is achieved through unifying of the rules and simplification of formalities.
International civil procedure reforms
The ICP haw different strengths and weaknesses thus the need to incorporate progressive reforms in the interest of furthering the strengths and reducing the weaknesses thus achieving high levels of harmonization. In this regard, the reforms include the recasting of the rules and regulations to incorporate the necessary changes in bettering the rules (Hamed and Tatsiana, 2015). The recast of the rules is done in the form of effecting a harmonized choice of law and reversal of the priority ruling. The reforms are modelled and directed towards improving the effectiveness of choice of court agreements as well as ensuring that the agreements are followed consistently. The reform needs to satisfy the objectives of unifying rules and simplifying formalities. Additionally, the reforms need to enhance the treatment of jurisdictional agreements in favour of all nations across the border.
Chapter 4: Conclusion
International civil procedure & international commercial arbitration are vital aspects of the law is providing a solution to cross border conflicts and disputes between nations, individuals and entities and they are characterized by strengths and weaknesses that affect the harmonization process. However, the different aspects of the International civil procedure & international commercial arbitration are characterized by strengths and weaknesses that need reforms to advance and reduce them respectively. The procedure and arbitrations determine the success of harmonization in offering solutions to conflicts across international borders. People across the borders continually interact in many endeavors such that conflict is normal and recurrent and thus there is a need to enhance the harmonization of rules, laws, and procedures across the different nations to achieve uniformity and acceptance in the course of solving international disputes.
Key materials:
1. Primary sources
Clift, J. (2004). UNCITRAL Model Law on Cross-Border Insolvency-A Legislative Framework to Facilitate Coordination and Cooperation in Cross-Border Insolvency, The.
Vasiljeva, K. (2004). 1968 Brussels Convention and EU Council Regulation No 44/2001: Jurisdiction in Consumer Contracts Concluded Online. European Law Journal, 10(1), 123-142.
2. Secondary Sources
Bayraktaroglu, G. (2003). Harmonization of Private International Law at Different Levels: Communitarization v. International Harmonization. Eur. JL Reform, 5, 127.
Bucy, D.R., 2010. How to Best Protect Party Rights: The Future of Interim Relief in International Commercial Arbitration Under the Amended UNCITRAL Model Law. American University International Law Review, 25(3), p.5.
Faria, J. A. E. (2009). Future directions of legal harmonisation and law reform: Stormy seas or prosperous voyage. Unif. L. Rev., 14, 5.
Gabriel, H. D. (2008). Advantages of Soft Law in International Commercial Law: The Role of UNIDROIT, UNCITRAL, and the Hague Conference, THe. Brook. J. Int’l L., 34, 655.
Hamed, A., & Tatsiana, K. (2015). A step forward in the harmonization of European jurisdiction: regulation Brussels i recast. Baltic Journal of Law & Politics, 8(2), 159-181.
Kotuby, C. T. (2001). External Competence of the European Community in the Hague Conference on Private International Law: Community Harmonization and Worldwide Unification. Netherlands International Law Review, 48(1), 1-30.
Kramer, X. E. (2008, December). A Major Step in the Harmonization of Procedural Law in Europe: The European Small Claims Procedure: Accomplishments, New Features and Some Fundamental Questions of European Harmonization. In THE XIIITH WORLD CONGRESS OF PROCEDURAL LAW: THE BELGIAN AND DUTCH REPORTS, AW Jongbloed, ed., Antwerp-Oxford-Portland: Intersentia.
Watt, H. M. (2001). Evidence of an emergent European legal culture: public policy requirements of procedural fairness under the Brussels and Lugano Conventions. Tex. Int’l LJ, 36, 539.
