Dispute Resolution and Arbitration in Oil Free Samples to Students

Question: Discuss about the Dispute Resolution and Arbitration in Oil. Answer: Introduction: Mediation is a better ways of solving disputes rather that making use of the courts and the judges. Mediation is time saving when compared to litigation. The process of litigation is quick and settles down to a mutual agreement[2] to the dispute which is accepted by both the parties. The mediator is a person who is the middleman in the dispute between the two parties. The mediator helps the parties to a dispute to benefit from each others private as well as confidential manners. This process starting from the application[3] for mediation till the settlement of the dispute does not take long time like litigation that involves a lot of legal issues which generally take time in the court to resolve the issues. If the parties to a dispute want quick resolution for their dispute, they should choose mediation process. Mediation process is where the cost is saved; the price for mediation service is lower since the time taken for the settlement of the dispute is also shorter. Some of the mediation services are free of charge especially in the Malaysian Mediation Centre. In a mediation process the parties reach to a settlement point in which they are satisfied. With the mediation facilitation[4] the parties to the dispute shall raise their problems concerning their benefits to the dispute in relation to each other. The resolution to the dispute will be concluded with the compromise and the with the fact that the settlement is agreed by both the parties to dispute. Mediation process focuses on the mending the broken relationship between the parties to dispute[5]. The result or the dispute settled under mediation give a win-win situation to both the parties. This is due to the agreement is made to be settled through compromise made by both the parties rather than having a judgment made by a judge which is only one sided. Unlike litigation where there is involvement of close related parties[6] like family members and relatives or the employer and the employee, the party which loses will draw a clear lie with the winning party, such things dont happen in mediation. Parties to a dispute and their counsel often avoid mediation process only because the result of the dispute is neither final nor binding. There is always a tension that an agreement that is mediated will not be enforceable by law just like the courts judgments and arbitration awards are. Yet, mediated agreements have an advantage in comparison to the judgments of the court and the arbitration awards because these mediated agreements are regarded as the agreement that are mutually understood by both the parties. Thus, the parties to a dispute can consider mediation to give effect to or meet the needs of both the parties. The result of the mediation is agreed and signed[7] by the parties at the end of the mediation session, which makes it enforceable in relation to the settlement of the agreement. Commercial mediation is considered as a private[8] and confidential dispute solving procedure in which an independent party and third party who is neutral that is the mediator, who helps the parties to solve dispute through a mutually acceptable negotiable[9] agreement. This process involves briefing of the mediator before the mediation which takes not more than one day. The mediation is attended by a decision maker for both the parties to dispute along with their legal advisors as well as experts or the insurer if there are any. Mediation process are voluntary process and gives scope to the parties to withdraw themselves from it at any point they want to. However, if a settlement is made it will be legally binding. It is believed that mediation should be regarded as the first option of resolving dispute. It is also believed that in most of the cases related to mediation can be deployed suitably. There are two obvious ways where the interference of the court may be needed, one is when the precedents arises determining the future needs or when the party needs urgent relief from the court. In such situations mediation is not advisable. In various mediated agreements a clause is included that states how such difficulties[10] as well any dispute related to the future shall be resolved. There is always scope for unforeseen problems that can come up while solving dispute. Mediation is used in law for the alternate dispute resolution. Mediation laws refer to a form of the alternative[11] dispute resolutionwhere the parties to dispute get a third party who is neutral, and helps in settlement of dispute. The purpose of mediation process is to avoid the time and expense which is caused in litigation[12]. Unlike the other forms of alternate dispute resolution mediation may not be binding on the parties. The role of the mediator is not to reach to a decision but to help the parties to dispute to reach to a decision that will be accepted by both the parties. There is usually no guarantee that mediation process will give effect to any settlement agreement in relation to solving the cases. Sometime mediation may be waste of time but still parties opt for mediation this is only because, when mediation is successful it saves a lot of money. For instance, taking a personal case of injury for trial can cost approx $100,000 or even more. But on the other hand, parties to dispute can pay the mediator some dollars and there are high chances that the case may get resolved by the end of the day. People who have been facing litigation prospects often consider that if their case is appropriate for mediation process. Nearly, all type of cases can be mediated but the best type of cases that should be considered for mediation is those who need to find an agreement of their own. If the parties involved can reach to a settlement on their own they need not involve a mediator. The most difficult issue that arises that during mediation is that whether the clause of mediation creates any enforceable obligations. This issue has made impact on the other related issues and rights. There are two decisions made by the Ontario Court of Appeal in which the court had arrived at a conflicting decision if the mediation clause can create any enforceable obligation. The English Court of Appeal considered this issue in the case, Sulmerica CIA Nacional de Seugros S.A. v Enesa Enharia S.A[13]. Mediation is considered to be a consensual process which requires no agreement for the process. It this is so then it makes it difficult to observe the certainty of the process that is essential element for its validity. In the English Court of Appeal it has been applied that the details of the mediation processes the certainty in relation to the requirements that are found in the law of contract that are related to the making of the contract. If in any case the party does not want to mediate it can state the position as soon as possible and therefore the mediation process can be done at the end. In the case, L-3 Communication Spar Aerospace Limited v CAE Inc[14], the court of appeal held that an obligation which is enforceable for mediation process has been pointed out in this case in relation to the cause of action which did not accrue and the limitation period did not start till the mediation process is held to be over. However, when it is least possible to get a settlement the parties opt for mediation in order to give effect to the settlement of dispute. Most common issues that are referred in mediation process are of breach of contract, injury cases in relation to torts, wrongful terminations of claims, family law matters and many more. Case like criminal charges, bankruptcy, deportation, immigration matters, appeals in relation to disability and any other cases in relation to government prosecution are not included in mediation process. Even cases like active dispute such as estate planning matters or real estate matters will not process under the mediation process. Arbitration is a type of dispute resolution process. It is considered as a private, judicial determination of dispute monitored by an independent third party. An arbitration hearing involves the use of an arbitrator or a tribunal. The tribunal consists of various of arbitrators though certain legal systems insist to avoid ties. The parties to dispute hand over the power to decide their problem to the arbitrators. Arbitration is an alternative to the courts settlement process it is final and binding to the parties. Although mediation and arbitration are similar and have the same mindset that is to solve dispute and give relief to both the parties. Yet they have major differences which the parties should understand before only. The most important difference between arbitration and mediation is that in an arbitration proceeding the arbitrator hears the proof of the both the parties before making his or her decision. Arbitration proceedings are similar to the proceedings of the court only thing is that arbitration proceedings are less formal. Whereas in mediation the process to solve dispute is based on negotiation with the help of a neutral third party. This neutral third party does not reach a conclusion but it helps the parties to decide upon a settlement. Mediators do not issue orders[15] or find fault rather they help the parties to the dispute to reach to a settlement with the help of communication[16]. Mediation process may vary with respect to the parties. Often the mediators meet the part ies to dispute separately. The mediators discuss the dispute with the parties and explore the ways to solve the dispute with each party. The main focus remains towards the parties to solve the dispute. Most of the disputes are solved successfully and often the parties will then enter into a written agreement where the settlement is made. Most of the people are satisfied with the decision of the mediation process than with the decisions made in the arbitration proceedings or the courts process. Arbitration proceedings are generally more formal than the mediation. An arbitrator can be a retired judge or a senior lawyer or a professional like an accountant or an engineer. During arbitration proceeding both the parties are given opportunity to their cases to the arbitrator. In a regular court proceeding[17] lawyers can also question the witness from both the parties. In arbitration there are very few out of court settlement between the parties. The arbitrator has the power to render any decision that is legally binding by both the parties and they must honor it and the award shall be enforceable in the courts. The scope of New York and Panama Conventions[18] and their application is highlighted under this. One of the primary means to enforce the international arbitration agreement is the New York Convention and their awards are made in the United States. The application of the arbitral awards are made in relation to the territory of the State other than those States where the recognition and enforcement of these awards are sorted and the arbitral awards are considered non-domestic which means that they are not considered as domestic awards in the State where their recognition and enforcement are made. Although the New York Convention does not define the term non-domestic awards. An agreement or an award that arise from the legal relationship whether it may be contractual or not it is not considered to be commercial it includes transactions, contracts or even agreements that are described under section 2 of this Convention. This is totally between the people of the United States and may not fall under the criteria of the Convention unless the relationship includes the property that that is located abroad or the enforcement has any other relation with one or more foreign states. For such purpose of this section corporations are considered as the citizens of the United States if they are incorporated or have the principle in the place of business in the United States. However, the ratification of the New York Convention[19], the scope of the convention was limited by the United States otherwise broad application of it would have been applied by the people that would elect the commercial reservation and the reciprocity reservation, which limit the application to commercial disputes and restrict its ambit to enforce the arbitration[20] agreements with the countries who are a part of it. Currently, 135 and may more countries have ratified the New York Convention. The Panama Convention[21] provides the jurisdiction for recognizing and enforcing the arbitration agreements and awards in the international commercial transactions between the individual of the member countries of the organizing states. Like the New York Convention, the Panama Convention is executed by the United States only applies to the arbitration agreements in respect to the commercial transactions and it also limits the enforcement of arbitration agreements with the countries who are a part of it. The Panama Convention does not define the commercial the courts in this country have applied by the United States Supreme Courts broad definition of commerce. There are times when it is expected that both the Ney York and the Panama Convention may be applied to the arbitral awards. When such situation arises then the Panama Convention states that, if most of the people of the parties to arbitration agreement are the people of a States that have been ratified to the Panama Convention and are the members of the conventions, the Panama Convention applies to such acts. But in other cases the New York convention applies. In the theory of enforcing the arbitration awards through the New York and Panama Convention is very straight. Any such case that comes under the convention is within the jurisdiction of the United States District Courts. The conformation of these awards must be made within three years of the award being issued. In the case, Karaha Bodas Co. LLC v Peruasahaan Pertambangan Minyak Dan Gas Bumi Nagara[22], a company needs enforcement of a Swiss arbitral award against the Indonesian government owned company issues in Switzerland to peruse the Swiss procedural laws. The Indonesian company successfully petitioned an Indonesian court to annul the award and then asserted the annulment as a defense to enforce the award under the New York Convention. Bibliography: Sulamerica CIA Nacional de Seguros S.A. v Enesa Engenharia S.A. [2012] 1 Lloyd's Rep. 671 L-3 Communication Spar Aerospace Limited v CAE Inc 2011 ONCA 435 (CanLII). Karaha Bodas Co. v. PERTAMBANGAN, 190 F. Supp. 2d 936 (S.D. 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