- Category: Alternative Dispute Resolution
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Scope and Parties to International ADR
Scope and Parties to International ADR
In the field where there exists the involvement of more than one parties or interaction among human beings, it might be inevitable to think of the possible existence of disputes. Human relation ship is becoming diversified backed by modern technologies. The world’s commercial and diplomatic relation requires the involvement of at least more than one nation or citizens of a nation. Trade is becoming a global phenomenon which requires the involvement of more than one nations or citizens or entities of different nations. It is also becoming impossible this time to think of internal peace and security with out having smooth diplomatic relation ship with the neighbour and even other states far from once geographical location. Border disputes are also common between states especially after the mid of the 20th century as a result of a lots of independences in Africa, Asia and even in Europe. Extra – territorial crimes it self is one treat to the peace and stability of the international community which involves the cooperation of the nations of the world in making sure that criminals did not get a shelter in a nation other than where the crime was committed and are duly prosecuted. Dispute may arise in the extradiction policy of one nation and the ambition of the other nation to prosecute the suspect. These give rise to the existence of differences or disputes which cannot be easily adjudicated by the formal courts of one of the nations involved there under.
These are some examples of international disputes that are frequent in the current global relations. The question to be raised at this very junction is that can we take all these and other kinds of disputes before ADR tribunal and get a valid and enforceable, before the international community and the disputants, out come from it? Do we have subject matters of dispute which can’t be safely entertained by ADR? The other related issue is about the capacity and identity of parties who can be a party before international ADR? The latter question is a kin to the controversy over the subjects of international law; sovereign nations and international organizations only or individual citizens and private institutes as well?
For instance, research has been done about the adequacy of the settlement of trade mark disputes occurring over the world by Rosanne T. Mitchell (Rosanne T. Mitchell, Resolving Domain Name-Trademark Disputes: A New System of Alternative Dispute Resolution Is Needed in Cyberspace, 14 OHIO ST. J. ON DISP. RESOL. 157 (1998), Cardozo Journal of Conflict Resolution). This article contends that current dispute resolution procedures are inadequate for alleviating trademark controversies over Internet domain names. The author believes expansion of the number of generic top level domains and registrars around the globe requires the implementation of an alternative dispute resolution system. Mitchell argues that this system will eliminate uncertainties in determining an appropriate forum and will dramatically decrease litigation time and expenses. The International Ad Hoc Committee's proposal, facilitated by the World Intellectual Property Organization ("WIPO"), attains these goals by providing three dispute resolution procedures: (1) on-line mediation; (2) on-line expedited arbitration; and (3) administrative challenge panels. The author contends that this proposal embodies an optimum solution for insufficient conflict resolution methods. Thus, Mitchell proposes that the United States government and WIPO should adopt this method to effectively resolve all trademark domain name disputes.
International arbitration has proved a useful method of settling some territorial disputes between nations. The question remains, however, as to whether arbitration is an appropriate dispute resolution mechanism to settle ethnic-based claims to land and a research was done on this area (Carla S. Copeland, Note, The Use of Arbitration to Settle Territorial Dispute, 67 FORDHAM L. REV. 3073 (1999), Cardozo Journal of Conflict Resolution). This research addresses the issue by examining three separate arbitration proceedings that have each involved a territorial dispute: (1) the Rann of Kutch arbitration between Pakistan and India; (2) the Taba Area arbitration between Israel and Egypt; and (3) the arbitration between the two Bosnian entities over the Brko area, as provided for by the Dayton Accords. The note concludes that the use of arbitration to solve territorial disputes can be successful only where the parties are committed to resolving the dispute peacefully through arbitration and that such a commitment is unlikely if the dispute involves an issue of vital national importance. Thus, this note contends that an attempt by the international community to force states to arbitrate such disputes may discourage future parties from using the procedure.
Another research was done to determine whether or not mediation works well in public disputes like armed conflict and deadly conflict and peace making role of mediation. In each of these types of dispute mediation has proved it self to be an effective kind of dispute settlement either in resolving the conflict totally or by mitigating the degree of contention. Peace keeping role of mediation is witnessed, for example, in Senator G. Mitchell’s role in mediating the peace talks that led to the Good Friday/Belfast Agreement in 1998 in Northern Ireland. The conflict is often expressed in religious terms as a clash between Catholic and Protestants as a great many Protestants want to keep Northern Ireland in union with the United Kingdom (Unionists) and where a great many Catholics favour Northern Ireland becoming part of the Republic of Ireland (Nationalists). Senator G. Mitchell was appointed as a chair of all party talks and it ends with agreement.
In the field of armed conflicts the effort of Carter Centre’s International Negotiation Network (INN) to mediate one of the longest civil wars in African history between the government of the People’s Democratic Republic of Ethiopia (PDRE) and the Eritrean People’s Liberation Front (EPLF) in 1989 can be mentioned. Lead by the then president of USA, Carter, the two parties have made a partially successful two round meeting in Atlanta – USA and Nairobi – Kenya which ends with agreement on procedural matters. Mediation was tested in deadly conflicts of Bosnia and Rwanda
The above discussion makes clear the experience of different kinds of ADR in resolving international conflicts of different nature. Public disputes which would get a challenge in the domestic jurisdiction of ADR have been freely and fruitfully entertained in the international relations. Thus, we may say that it would be difficult to say that there are subject matters of a dispute in the international level which can’t be entertained by ADR.
In case of capacity of parties before international ADR, the same conclusion can be reached and say that as long as a party has a cause of action and as long as both of the disputants are consented, it would be the obligation of the panel or tribunal to enforce the interest of the parties. This is witnessed from the provisions of different international documents. In arbitration, a party's ability or obligation to arbitrate an international dispute arises from its consent as a signatory to a contract that contains an arbitration clause. Article 1 of the AAA's International Arbitration Rules provides that an international arbitration shall occur "where parties have agreed in writing to arbitrate disputes." The 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), the legal framework by which the international community has chosen to regulate the enforcement of arbitral agreements and awards, imparts a similar writing requirement.
The effort made above shows us that the limitation we have in domestic jurisdiction of ADR over public interest cases would not arise in international relation as most of the disputes between states are resolved by using ADR. In addition, public international law denies parties other than sovereign states and some international organization with the right to be a party before it. This will not happen in ADR as private individuals, private commercial and civic institutes, states and group interests are freely entertained before it.