A Dissertation Proposal on Dispute Initiation Under the WTO

7 Pages

20 Downloads

Words: 2091

Date added: 17-06-26

Category:

open document save to my library
Dissertation Proposal 1 The trend and scale of developing countries' Disputes initiation under the WTO Introduction Disputes between nations that result from commercial conflict or any other relation issues are usually resolved through international arbitration. The conflicting parties usually select an arbitrator or an arbitrator that helps them come to a mutual contract to honor by both the conflicting parties. This mutual agreement also forms part of the future resolution of conflicts between such parties. The aim of international arbitration is to solve international disputes amicably between states. This conflict resolution should be done without going into the bureaucratic details of a given state's judicial system. The use of such method of solving disputes also reduces the impact of cultural hindrances in court related litigations In the past few years, international arbitrations have grown in popularity and stature. There are a number of reasons that have led to the growth and popularity of this type of arbitration. This is mainly dependent on the fact that this form of contracts has unique characteristics that make it favorable for use between nations. The growth in the use of this type of contract implies that there should be a considerable amount of literature about the subject. This paper gives a proposal for a dissertation on one of the identified literature gaps in the subject of the international commercial arbitration exercise. Context of the project To understand the benefits of international arbitrations, it is also important to look at both the advantages posed by this system and the disadvantages of the ordinary national court processes. The flaws of international court processes will provide insights into the benefits of opting for an international arbitration process other than the court process. Some of the main benefits of arbitration include the control of the process by the conflicting parties. In this perspective, the parties have the power to decide when and where to commence the depositions. The parties in conflict can make their own decision on the use of technology like video links to conduct meetings or depositions. This is normally not a possibility in the traditional national court processes. In this case, the two parties have to agree with the decision of the court. The court sets all the important milestones of the litigation and parties have to comply. Another benefit of the international arbitration process is closely linked to the amount of time consumed and the level of expenditure in these arbitrations. As compared to national litigations, arbitrations take a considerably short amount of time. The implication in this kind of setting is that the shorter the time the lesser the amount of time the nation will have to pay. In litigations, the biggest share of the resources goes towards the payment of attorneys over the litigation period. If this period is shortened, then the costs are significantly reduced. Other reasons for preference of this kind of service include the flexibility of the process to meet the need o f the two parties and the confidentiality of the information that is discussed in these arbitrations. From this preceding discussion, it is important to acknowledge the fact that international arbitration has become common ground between states. Its applicability in international relationships and international commercial conflicts has become extremely important. The core issues that arise in developing countries as a result of arbitration are the scale of the award and the enforcement of such awards. As noted in BüHring-Uhle, Kirchhoff & Scherer, (2006, p. 63), enforcing an award is quiet easy in a foreign country. However, in different jurisdictions, the laws or conventions that are used could provide for no specific actions to engage during or in the case of an award. Rubino-Sammartano (2001, p 163), opines that since international investment disputes have taken the same trend, there is bound to be a bias against developing countries. The bias against developing counties is as a result of the fact that many critics see international arbitrations as favoring the investing side and not the recipient. As such, the use of international arbitration in commercial disputes involving both developed and developing nations is a form of oppression to the developing nation. This study further supports this notion by indicating that in international investment conflicts, the investors cannot be treated as a nation. This is due to the reason that such persons or group of investors have no international law personality and are not recognized by international treaties. This is a breach of the ethics of international law. The arbitration process would also be out rightly unfair to the developing nation. The involvement of the mother states of the investors in this arbitration can be viewed as an unfair approach to conflict resolution. This is because of the idea that the private investor was acting not on behalf of the interest of their states but for the purpose of self-gain. The debate on fairness has been advanced over a long period. According to a number of critics, the feeling is that party appointed arbiters, the arbiters will act as attorneys of the party appointing them. Due to this the outcome of the arbitration process might not be fair. Such challenges are common to many judicial systems. However, the provisions of the New York Convention provide that the arbiters should act in the best interest of the process. In Gusy, Hosking & Schwarz (2011, p 104), identifies the fact that most of the challenges in arbitrations often result from the large number of participants in these arbitrations. The increase in participants does not serve to improve the efficiency of the arbitration process but makes it more complex. As such conflicts that would have taken a shorter time and fewer resources to handle takes a protracted amount of negotiations. In some cases, the study also identifies the fact that this can be a source of failure of the arbitration process. Some countries have developed immunity defense to cope with the negative impact of international commercial arbitration. In such countries, their sovereignty clause is cited to imply that it is not possible for another nation to enforce an award in their territory (Ismaili, 2003, p. 156). However, this study suggests that since there is an existence of a contract after the arbitration, then it is imperative that the award is enforced. As such any laws that bar the enforcement of the contract takes a backseat. The New York Convention, set the enforcement of an award is binding globally in the resolution of such disputes. The conventions requirement is that all the parties are given equal opportunity to be heard before the due process of enforcing an award. Hypothesis The aim of this literature is to show the relationship between international arbitrations involving developed and developing nations and the declining trend on the use of arbitration by developing countries. . Research question The main question to be answered is the existence of any relationship between the declining levels of use of arbitration in developing countries an unfair arbitration by developed countries. In this question, the study will try to establish the following aspects Do investors from developed nations use international commercial arbitration in dealing with disputes between them and the developing countries? What are the current trends in the consumption of arbitration in developing countries? What are the most probable outcomes in commercial conflicts involving developed and developing nations? How do developed nations enforce awards in commercial disputes that pit them against developing nations and what are the probable impacts of the same? Who are the most likely arbiters in conflicts involving developed and developing nations? Methodology Before conducting a study, the first process is to choose a research methodology that best fits the data the researcher needs to collect and the research objectives. A quantitative research, for instance, is essential when one wishes to provide a postulation on facts that can be quantified in figures. This type of research best fits research objectives that need to be explained in terms of the amount (Handler, Kennelly, & Peacock, 2011, p.8). This study will involve a mixed method approach in reaching the objectives of the project. This mix of technique is known as blending or triangulation. This ensures that much of the perspectives being investigated are captured within a study (Thomas, 2003, p. 57). First, the paper will use a quantitative approach. This will involve gathering of information or statistics from relevant agencies about the subject of discussion. Here the main data collected are the total number of cases that have involved developing countries and developed countries. This data or statistics will then be analyzed in order to determine the relationships that exist that aim at showing the validity of the research questions. The use of statistics software will be employed to perform a regression on the data. The most common statistical tool used, in this case, is the SPSS software that harnesses the power of computers in performing regressions. Both primary and secondary data sources will be considered, in this case. The primary source of this data will be the national arbitration associations' databases available online and publications. The secondary source of information or data will be from peer-reviewed articles and journals. The journals are particularly essential because they provide data and opinions of other scholars in the same field of study. A qualitative study will also be involved in this study. The aim of this qualitative study is to determine the main causes that could lead to the type of behavior exhibited by the statistics. In behavioral sciences, qualitative approaches of research provide a suitable modeling to making the connections (Stommel & Wills, 2004, p. 279). It is for this reason that the second part of the study implements a qualitative approach in research methods. The aim of the method used here is to come up with a sort of explanation that will go along with the findings in the quantitative research. To conduct this qualitative review, a number of experts and stake holders will be identified for interviews. This is to seek their opinion on the possible trends that have been revealed by the study. The interviews will be administered through the use of internet mail and in person where possible. Through administering the interviews by email, a wider sample with a variety of opinion reached. The impact of this is that there is a wide information base to analyze increasing the level of consistency of the explanation of the phenomenon. Secondary sources will also be used in this study, and this includes the analysis of literature available on the subject under discussion. Bibliography BÜHRING-UHLE, C., KIRCHHOFF, L., & SCHERER, G. (2006). Arbitration and mediation in international business. Alphen aan den Rijn (Netherlands), Kluwer Law International.

GUSY, M. F., HOSKING, J. M., & SCHWARZ, F. T. (2011). A guide to the ICDR international

arbitration rules. Oxford, Oxford University Press.

HANDLER, A., KENNELLY, J., & PEACOCK, N. R. (2011). Reducing racial/ethnic

disparities in reproductive and perinatal outcomes the evidence from population-based interventions. New York, Springer

ISMAILI, M. A. (2013) Globalization and New International Public Works Agreements in

Developing countries. Burlington, Ashgate publishers.

KAUFMANN-KOHLER, G., & STUCKI, B. (2004). International Arbitration in Switzerland: a handbook for practitioners. The Hague, Kluwer Law Int. [u.a.]. RUBINO-SAMMARTANO, M. (2001). International arbitration law and practice. The Hague [u.a.], Kluwer Law International.

STOMMEL, M., & WILLS, C. (2004). Clinical research: concepts and principles for advanced

practice nurses. Philadelphia, Lippincott Williams & Wilkins.

THOMAS, R. M. (2003). Blending qualitative & quantitative research methods in theses and

dissertations. Thousand Oaks, Calif, Corwin Press.

Read full document← View the full, formatted essay now!
Is it not the essay you were looking for?Get a custom essay exampleAny topic, any type available
banner
x
We use cookies to give you the best experience possible. By continuing we'll assume you're on board with our cookie policy. That's Fine