Name: Nang sophy

Course: International Arbitration

Course: International Arbitration

Assignment week two
Today is your first day as a Junior Associate in a law firm. After being introduced to your
colleagues, your boss tells you that she is working on a case with her client, NUMerical
Precision Pte Ltd. (“NPP”). The client, NPP, is a Cambodian company that helps other
companies to improve online sales revenues.
Your boss says that the CEO of NPP wants NPP to enter into a contract with a Chinese
company,
iLAWangxia Hunan Co. Ltd (“IHC”). Under the contract, NPP would help IHC to analyse data
from its online sales platforms find ways for IHC to more efficiently sell its products. Your boss
was about to explain different dispute resolution mechanisms to the CEO but the CEO had to go
for another urgent meeting. Your boss has therefore asked you to prepare a short memo
explaining what types of dispute resolution mechanism NPP and IHC should consider, and which
mechanism(s) they should adopt for this contract.
In preparing the memo, some of the issues that your boss has asked you to consider
include:
1. What are the strengths and weaknesses of different dispute resolution methods?
2. Can parties combine methods? If so, which ones?
3. In light of your answers to questions 1 and 2 above, what dispute resolution method should the
CEO of NPP propose in the contract with IHC?

ANSWER
1. Strengths and weaknesses of different dispute resolution methods There are four forms

Negotiation, Mediation, Conciliation, Arbitration.

Negotiation The simplest form of Alternative Dispute resolution. Where both parties have a
dispute they can negotiate a solution themselves. There is no third party of middle man who
facilitates the resolution process or imposes a resolution.

 Strengths point Negotiation is a quicker and cheaper alternative to litigation, often

advisable for its potential savings and reduced costs. It doesn't require a lawyer and
doesn't require significant taxpayer funding, making it less expensive and faster.
High-level negotiations, like TOW settlements, can take longer but generally are
 shorter. Negotiation can also preserve relationships, especially in legal fields like
employment, commercial, and family law, by preserving goodwill and committing
both parties to a legally binding contract. Negotiations can be conducted under a
judge's order to "settle out of court" and can occur anywhere, with complete control
over the process and outcome.

 Weaknesses point Negotiation lacks a third party, making it vulnerable to undermined

processes. Flexibility removes safeguards, making it dangerous for weaker parties.
Lawyers can address this, but not all are as effective. Negotiation does not develop
laws or make statements on community values, and private nature prevents public
enunciation of principles. Precedents do not follow negotiated settlements, but can be
beneficial for avoiding adverse publicity. Legal negotiation is subjective and parties
may not consent to agree, and a signed binding agreement is not guaranteed.

Mediation is a process of third-party involvement in a dispute. A mediator cannot impose an

outcome but rather assists the disputing parties in reaching their own agreement.

 Strengths point Mediation is a confidential and informal approach to resolving

conflict, aiming to preserve relationships and address power imbalances. It is
relatively inexpensive, with the main cost being the mediator's fee, and often without
lawyers. It is less time-consuming than litigation, allowing parties to construct their
own solutions and take responsibility for the issues under discussion. Mediation
introduces more 'feminine' approaches to the legal system, requiring interpersonal
communication and relationship building qualities. However, it may be open to
accusations of bias.

 Weaknesses point Mediation plays a crucial role in dispute resolution, allowing

mediators to suggest solutions and interview parties about the context of the dispute.
However, mediators may face bias claims and impose their own views on the parties.
The effectiveness of mediation depends on the mediator's abilities and the ability of
the parties to reach their own solutions. However, mediation lacks legal safeguards
for certainty and is confidential, preventing binding decisions and potential court
involvement. In 2011, Chief High Court Judge Helen Winklemann criticized
mediation for exaggerating its strengths and undermining the court system.
 Strengths point The conciliation process is an informal process that enables parties to
have their say and make their own decisions. The conciliator listens to facts, suggests
solutions, and helps them discuss the dispute. This cooperative and less competitive
approach to dispute resolution is particularly beneficial in ongoing relationships, such
as child custody or workplace cases.

 Weaknesses point Conciliation is a voluntary process that relies on the goodwill of

both parties. It aims to resolve disputes by discussing issues and generating options
for settlement. Final decisions are not legally binding, making enforcement difficult.
However, one party may refuse or withdraw at any time.
 Arbitration. Arbitration is a private system of adjudication. Parties who arbitrate have
decided to resolve their disputes outside any judicial system.

 Strengths point Arbitration offers a faster and more convenient resolution to disputes
compared to court trials. Arbitration follows simplified rules of evidence and
procedure, reducing the time-consuming and expensive discovery process. It also
allows for a private resolution, keeping information confidential, making it appealing
for well-known public figures or clients in business disputes. The parties usually
choose an impartial arbitrator together, ensuring impartiality and unbiasedness.
Arbitration is generally less expensive than litigation, with reduced attorney fees and
lower costs in preparing for arbitration.Binding arbitration has limited appeal
opportunities, giving finality to the dispute. Employers are increasingly interested in
including a class action waiver in employment agreements to limit risk exposure.

 Weaknesses point Arbitration is a voluntary process that relies on the goodwill of

both parties to resolve disputes. However, the process of choosing an arbitrator can be
biased due to business relationships or agency selection. Arbitration clauses can favor
large employers or manufacturers when challenged by employees or consumers who
don't understand the process. Arbitration may not always follow the law consistently,
as the standards used are not clear. There is no jury, which can prevent biases and
unfairness. Arbitration hearings are generally held in private, but this lack of
transparency may make the process more likely to be biased, as decisions are
infrequently reviewed by the courts.

2. Can Partie combine methods It is possible to combine expert determination in such a way
with both litigation and arbitration proceedings. However, because of the flexible nature
of arbitration proceedings, it is easier to combine expert determination and arbitration
proceedings, and the results are more predictable.

3. In light of my answers to questions 1 and 2 above, the dispute resolution method should
the CEO of NPP propose in the contract with IHC first is Negotiation if it’s not the big deal
between NPP and IHC because it has the neutrality, fast, a little of cost and it also bring the good
relationship for parties. And another once is the International Arbitration if it’s the big deal
which is cannot resolve it by easily between parties, because Arbitration proceedings are
typically final and binding by issue the arbitral award which can enforceability.