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Been there, done that: Why even international arbitration proceedings have, for the most part, weathered the pandemic just fine. In the absence of an arbitration clause, American companies face the prospect of litigating in unfamiliar legal dinara malinina options reviews that often differ markedly from that of the U. To manage this uncertainty, parties can also negotiate for the inclusion of forumselection clauses. Unless your company has significant leverage or is willing to offer substantial concessions, though, securing a forum-selection clause in your own backyard can be difficult.
And while the parties can always choose a neutral country as a dispute forum, that means both will then face the expense of litigation in an unfamiliar system. Arbitration clauses alleviate these concerns. When the case proceeds to final award, the parties are likewise typically assured of its enforceability in both countries. The pandemic has added another major reason to include an arbitration clause in international agreements. Arbitration ensures that your dispute will be promptly and fully adjudicated.
This March, at the outset of the outbreak, many courts across the U. In July, for example, the Texas Supreme Court ordered the suspension of all in-person jury trials through at least September 1, with few exceptions.
The Lone Star State is not alone. Numerous other state and federal courts suspended or curtailed jury trials for the foreseeable future, including the Southern Districts of New York and Florida, and the Central District of California.
And while courts in Texas and other states have conducted exchange- traded options jury trials via Zoom, those experiments have been few and far between, and unlikely to gain widespread acceptance due to their obvious logistical and practical difficulties. A recent survey by the Texas Office of Court Administration found that fewer than 20 percent of attorneys were in favor of remote jury trials.
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The legal systems of many countries, in c lu din g t h o s e in Euro p eh ave nonetheless encountered significant pandemic-related disruptions. Some have even halted the process for ef fectuating ser vice of foreign juridical documents under the Hague Convention. If ef fective ser vice of process is unavailable in international disputes, a suit might not even begin even if filed in the U.
Several factors explain why arbitration, unlike court proceedings, provides a stable forum for companies that need prompt and certain dispute resolution: First, parties in arbitration have always relied on remote means rather than in-person appearances to advance disputes.
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M o s t c our t son the other handconducted pre-COVID proceedings in person, and the quick shift to remote proceedings has proven dif ficult for many to implement. Second, arbitration is a highly flexible procedure that both parties and the arbitrator can tailor to address any problems that crop up. In late March and early April, with the legal system in disarray and cour ts across the nation shuttering, one of the authors par ticipated in several preliminar y teleconferences with arbitrators in matters pending before the AAA and JAMS.
Such instant flexibility is not typically available in a courtroom, where judges and parties are often bound by inflexible rules, disdain for technology, and prejudice against nontraditional methods.
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A s arbitrator s and par tie s were tailoring their own arbitration proceedings, meanwhile, domestic and international arbitral bodies such as the AAA, JAMS, International Chamber of "Such instant flexibility is not typically available in a courtroom, where judges and parties are often bound by inflexible rules, disdain for technology, and prejudice against nontraditional methods. Courts, while quick to suspend proceedings, adapted to videoconferencing technology far more slowly, and have still not uniformly resolved if at all how they will resume trials.
Third, long before Zoom was commonplace, parties and arbitrators were familiar with presenting option is that claims via videoconference or other means, so conducting the entire final hearing this way is a relatively small step to take. The same can by no means be said of typical court proceedings, where the parties are bound by strict rules of evidence that would exclude much of the evidence admitted in arbitration.
Judges have no such incentive. Being sure to include arbitration clauses in contracts, then, will help American companies ensure that their disputes will be expediently adjudicated in a tried, tested forum immune from the effects of a pandemic or anything else.
Dinara malinina options reviews benefit, combined with the elimination of practical and logistical hurdles in international litigation, should make arbitration the preferred forum for any company engaged in international business. By George H. I had no idea that after I got back the virus would virtually shut down air travel, personal vehicle use, and the burning of hydrocarbons in general worldwide.
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Depending on where you get your data, the environmental impact of the shutdown has been anything from slight to significant. Readers of a certain age will remember the ozone crisis of the s. By the s the primary cause had been traced to the use of refrigerants remember CFCs? I think the prognosis is good for best mobile app for binary options large companies those that are upstream, midstream, and downstream, in other wordsbut not for non-integrated upstream companies unless something is done now to help them.
We should also note a few other important factors unrelated to the virus itself. More on this in a moment. Critics charge that these prominent companies are engaged in nothing more than public relations, but I disagree. These businesses are realistic. Likewise, the sk y is not falling.
It amazes me that people never fail to underestimate the speed of innovation. Natural gas is plentiful, cheap, and burns cleaner than oil or bot that makes money. This requires money, something the large dinara malinina options reviews businesses have and that capital providers have quit doling out to non-integrated upstream companies.
Either way, their midstream costs are lower, which dinara malinina options reviews to higher profits on upstream assets.
This makes for a bleak outlook for non-integrated companies should they fail to adapt to the changing landscape. For example, oil and gas leases can be modified to permit wind or solar farms in suitable locations. This has the video about options benefit of reducing the risk of transporting gas through the U.
Companies can also team up with a carbon-capture business at the electricity-generation site to further reduce emissions and, ideally, generate a tax benefit. The possibilities are limited only by human ingenuity. Reducing oil consumption to sustain production. Once extracted, gas must be moved to downstream facilities. Non-integrated companies therefore must make deals with midstream businesses to get their gas into the system to be sold.
This increases expenses, lowering profits and necessitating, again, higher prices to make money. Integrated companies, by contrast, have their own midstream is second, but with a caveat: Oil is different. We use it as feedstock to make a variety of products necessary to nearly everything we do. Third, we must foster the acceleration of the move to electric vehicles and artificial-intelligence-based self-driving technologies.
The most dangerous thing most of us do, after all, is drive a car. Selfdriving tech will eventually significantly reduce needless death and suffering. It will also cut local carbon-monoxide and noise pollution. Fuel cells are electrochemical devices that convert hydrogen the most abundant element in the universe dinara malinina options reviews air to electrical energy. Hydrogen can be separated from water using energy generated by natural gas, at centralized locations that use carboncapture technology.
The naysayers of the s dinara malinina options reviews right about one thing, though: population growth. Regarding the latter, we can take a lesson from Mother Earth herself, who seemed to have settled on solar and geothermal energy before humans came along and discovered things to burn. Thinking on an even larger scale, nature runs on hydrogen, otherwise known dinara malinina options reviews the sun. But I digress.
I also like the idea of capturing heat and using it much like a mini-cogeneration facility. The technology has a way to go, however. Hydrogen is more flammable than gasoline, and transportation and storage present risks.
Hydrocarbons, like it or not, are not going away, and we should think creatively about how to use them as a transition fuel. That includes saving our non-integrated upstream companies from our current upstream troubles.
After all, they were the innovators who gave us the shale revolution and the plentiful, cheap, and cleanest hydrocarbon transition fuel. For that, we need our non-integrated upstream companies to innovate as they always have. Much like the case of Dallah before it 1, the Kout saga has mired French and English courts in direct conflict, leaving behind no small amount of legal uncertainty, notably in the matter of determining the governing law of an arbitration agreement.
In the meantime, Kout sought to annul the award before the French courts. These diametrically opposed judgments serve as a stark reminder that the major cultural dif ferences among various jurisdictions may in fact hamper the effectiveness of arbitral proceedings. The sort of legal uncertainty exemplified by these divergent judgments is something that must be anticipated by parties whose contracts contain an arbitration agreement. It contained, inter alia, an English choice-of-law clause, an arbitration clause providing for ICC arbitration in Paris, an entire agreement clause, a contractual definition of the agreement that dinara malinina options reviews to all provisions, and a No Oral Modification clause providing that any agreement had to be signed in writing.
A further stipulation: The agreement had to be interpreted and executed in good faith. It also made clear, though, that under no circumstances could the tribunal apply any rule that would contradict the terms of the agreement. KFG, since its corporate restructuring, was consistently involved in the per formance of the franchisedevelopment agreement.
When it came time to renew the agreement inhowever, KFG elected not to do so and entered into discussions to terminate it. Where required to determine the governing law of an arbitration agreement, English courts will thus carry out the following inquiry: First, the court will examine whether there is an express choice.
Should there be, the court need look no further. Absent an express choice, the court must determine whether there is an implied choice, which can be inferred either from the law of the arbitral seat or the law applicable to the underlying contract.
Under English law, there is a rebuttable presumption of an implied choice in favor of the governing law of the underlying contract5. There was, therefore, no need to proceed: The fact that the seat of the arbitral tribunal was in Paris made no difference. Having established this, the English Court of Appeal looked at whether the arbitration agreement could be extended to KFG under English law. The court, affirming the U. According to Rock Advertising, such clauses can be set aside only if an estoppel can be shown.
Specifically, it must be established that a party has engaged in words or conduct which unequivocally led to the belief that modification of the contract, notwithstanding the informal nature of the modification, was valid; more than a mere informal promise is required.
The Court of Appeal found that no such estoppel could be established and refused enforcement of the award. Unlike English courts, French courts do not inquire into the governing law per se, but instead simply look to the common intention of the parties 9. French law does allow parties to derogate from this rule by expressly choosing the governing law of the arbitration agreement However, in this case the Paris Court of Appeal found that the various provisions of the agreement did not suffice to establish that the intention of dinara malinina options reviews parties was to extend the English choice-of-law clause to the arbitration agreement.
Moreover, the parties had expressly designated Paris as the seat of arbitration. The Paris court therefore held that the parties had made no express choice regarding the governing law of the arbitration agreement and rejected the application of English law. Dinara malinina options reviews established this, the French court considered the jurisdiction of the arbitral tribunal.
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The Paris Court of Appeal also held that the No Oral Modification clause could not prevent the extension of the arbitration agreement to KFG, given that the franchise agreement stipulated that the arbitral tribunal was also required to apply all principles of law generally recognized in international transactions. The French court simply verified whether the arbitral tribunal had fulfilled its mission by applying the law designated by the parties, and refused to review the merits of dinara malinina options reviews award.
Aftermath: Reconciling the Irreconcilable The judgment of the Paris Court of Appeal remains subject to appeal to the French Cour de Cassation, but the risk of an overruling is low. Par tie s rare l y ex p lici tl y c ho o s e the governing law of their arbitration agreementsand these t wo diametrically opposed results highlight the legal uncer taint y they might face when it comes to enforcing or challenging the enforcement of arbitration awards.
This is, in part, because the commercial contex t of this particular dispute is relatively commonplace and the relevant contractual provisions in play are typical. As such, the conclusion reached in this saga is likely to occur in other cases, and where the governing law of a contract is English law, any misapplication of English law by an arbitral tribunal may lead to a refusal of enforcement of an award before the English courts.
The legal uncer tainty could have been somewhat mitigated by taking care to initiate arbitration against both the franchisor and its parent.
In any arbitration, it is essential to ensure, to the best of your ability, that any arbitral award in your favor will be enforceable. In order to provide legal certainty, arbitral tribunals should have their attention drawn to the applicable rules in any state where the award is likely to be enforced. In addition, during contractual negotiationsthorough analysis of the governing law of the underlying contract will enable you to anticipate any potential enforcement obstacles.