International sales of goods contract disputes are inevitable due to differences in language, culture, or business practices, which may prevent the parties from understanding each other’s goals. Understanding and selecting the appropriate dispute settlement method can help parties settle the dispute promptly, cost-effectively, and efficiently. This article by TNTP introduces some mechanisms for resolving disputes related to international sales of goods contracts.
1. Negotiation
• Negotiation is a consensus-based dispute settlement method where the parties will discuss disagreements or disputes based on good faith to find solutions. The agreements reached through negotiation are not legally binding and rely on the goodwill of the parties for implementation.
• Negotiation is a simple dispute settlement method. It is often prioritized by the parties due to its flexibility as it can occur at any time or place without being constrained by time or space, especially in the day of technological advancements. Moreover, the parties can avoid the costs for any third party and directly communicate themselves to understand each other’s objectives and potentially achieve a win-win solution.
• However, the success of negotiation will largely depend on the good faith of the parties. Since the agreement through negotiation lacks binding value, their implementation will solely be based on the parties’ cooperation. If a party fails to adhere to the agreed-upon solution, the dispute may remain unsettled, and there are no specific sanctions for such non-compliance. Additionally, language, culture, and other differences can impact the results of negotiation, especially with the international nature of the contract.
2. Mediation
• Mediation is a dispute settlement method involving a third party – typically an individual or organization with expertise in the disputed field, known as the mediator. The mediator acts as a “connector” between the parties, listens to their viewpoints, even up the differences in the parties’ understanding, and proposes solutions that address the parties’ needs for their consideration and decision.
• While mediation shares similarities with negotiation, a notable distinction is that the parties seek the assistance of a mediator rather than negotiating directly.
3. Commercial Arbitration
• Commercial arbitration is a dispute settlement method where the parties agree to resolve their disputes by an arbitral tribunal. The tribunal reviews the documents, evidence submitted, and the case’s facts to issue a final and binding Award.
• In international sales of goods contract disputes, arbitration has unique features due to the international nature of the disputes, such as:
– The language used during the settlement process can be mutually agreed upon by the parties, which may be the language of one of the disputing parties or a third language agreed upon. If there is no agreement, the arbitral tribunal has the authority to decide on the language to be used.
– Regarding the applicable law, the parties may choose the national law or international commercial practices.
– A distinctive feature of arbitration in international sales of goods contract disputes is that arbitral awards are not automatically recognized and enforced. Recognizing and enforcing the foreign Arbitral Award will depend on the international treaties to which the relevant country is a party or on the principle of reciprocity. In certain scenarios, the party seeking recognition and enforcement must undergo the procedures for recognition and enforcement in the country of the award debtor’s nationality or where the enforceable assets are located.
4. Litigation
• Litigation is a dispute settlement method based on state authority, wherein disputes are resolved by national courts, acting in the name of state power, to issue judgments and decisions to settle disputes. Litigation is often considered the “last resort” when disputes cannot be resolved through negotiation, mediation, and without an arbitration agreement.
• For international sale contract disputes, selecting the court for dispute settlement does not guarantee the case will be heard in the chosen court. Jurisdiction will be determined based on the conflict-of-law rules stipulated in the law of the selected court’s jurisdiction, international treaties to which the relevant country is a party and other criteria.
• Another issue is determining the applicable law for dispute settlement. While the parties may choose the governing law, in the absence of such an agreement, the court will apply conflict-of-law rules and private international principles as prescribed by the legal system of the country where the court is located.
• Similar to arbitration, recognizing and enforcing the effective judgment/decision need to be done in the country where the assets for enforcement are located or in the country of the judgment debtor’s nationality, subject to the international treaties, reciprocity principles, and the laws of the country where the recognition and enforcement takes place.
This article, “Dispute Settlement Methods in International Sales of Goods Contracts” is presented by TNTP with the hope of providing valuable knowledge to readers.
Sincerely,
