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Bus 378 International Commercial Law And International Business Transactions

2903 words - 12 pages

International Commercial Law and International Business Transactions
Bristan Keller
BUS 378 International Business Law
Ashford University
Instructor Jumper
May 5, 2014

International Commercial Law and International Business Transactions
In recent years, various conflicts of law have been identified regarding commercial law and international business transactions. In most cases, there are procedures to follow when a conflict of law comes into play. In others, much is open to interpretation and can be argued in favor of all parties. Normally if this happens, mediation is sought after and all parties compromise upon agreeable terms. Though there are various issues, international ...view middle of the document...

” (Hauberg, 2014) An arbitral tribunal will not stay proceedings without a court ruling on the merits if an arbitration agreement exists. Even still, both authorities may not arrive at the same conclusion even if they decide the validity of the arbitration agreement applies the same law. Due to legal traditions, applications may vary for each party as one application of the law may contradict the other’s application. A prerequisite for the jurisdiction of the arbitral tribunal is determining the agreement’s existence and validity and may rule on its own jurisdiction (also known as positive effects of the competence principle). While typically this principle does not give priority over other courts to rule in its jurisdiction, there are cases where jurisdictions have recognized the tribunal’s priority to rule on its own jurisdiction (also known as negative effects of the competence principle). This is considered as a lis pendens rule. Hauberg (2014) states
In international civil and commercial disputes in the EU, courts in different Member States may have jurisdiction to hear the same case. Such jurisdiction may be based on purely national rules or may be based on the Brussels I Regulation. Parallel Proceedings between courts on the existence and validity of an arbitration agreement may arise where a court in one Member State is seized of an action on the merits of the dispute and has to decide on the question of the validity of the arbitration agreement as an incidental question and another court is seized with an action to support arbitration. The provisions in the Brussels I Regulation on lis pendens and related actions do not apply in this case because the action to support the arbitration does not fall within the scope of the Regulation. Parallel proceedings between an arbitral tribunal and courts on the validity and existence of the arbitration agreement are often possible, because courts, other than the court at the seat of arbitration, will have jurisdiction to decide on the merits of the dispute, to entertain a declaratory action on the validity and existence of an arbitration agreement, or to support the arbitration.
Because national laws often govern relationships among arbitral tribunal and a court within their jurisdiction, parallel proceedings do not often conflict with each other.
Articles II(3) and V(I)(a) of the New York Convention outlines the validity of an arbitration agreement. Article II however does not identify law applicable to validating the arbitration agreement. Article II(3) identifies reason for the court to deny referral of the parties to arbitration. V(I)(a) includes a conflict-of-law rule which states “the law applicable to the validity of the arbitration agreement at the enforcement stage of the proceedings is either the law chosen by the parties, or failing such a choice, the law of the country where the award was made.” (Hauberg, 2014) Unfortunately, the New York Convention does not contain a...

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