Topic 2 how to deal with contractual disputes

Often, a facts-based discussion between the parties about the difference can resolve the matter, but it’s when the ‘facts’ are not accepted as such by a party and the difference cannot b

TEAM WORKING REPORT

Group: 02 Grade: 4529_N01

1 Team work plan

- Content:

+ Group meeting to agree on ideas

+ Make an outline and send it to the teacher

+ Edit and finalize

+ Divide the portions for each person

+ Extension of specific deadlines for each part

+ Check reviews for each other

+ Complete the form of the word version

+ Team leader checks for the last time

- Power point: 2 members find images, video, and the others design

- Division of presentations : all members usualy practice

- Group meeting and review before the test session.

Implement ation progress (on time)

Completion Level Group meeting

Yes No Not

good Medium Good

Full Participation

Vibrant positivity

Result of article score:

Teacher marks first: ………

Teacher marks the second:.………

Teacher for the presentation: …………

Final conclusion: ………

Teacher's final rating: …………

Teacher for the presentation: …………

Ha

Nguyen Thi Thu Ha

TABLES OF CONTENT

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OPENING……….………… ….…5

CONTENT……… ……….5

I Overview of dealing with contractual disputes……… 5

1.1.Definition……….… 5

1.2.The causes of contractual disputes and purposes of dealing with them……… … 5

1.3.Some requirements when settling contractual disputes……… … 6

II How to deal with contractual disputes……… 6

2.1.Negotiation……… … 7

2.2.Mediation……… …8

2.3.Arbitration………10

2.4.Court………11

III Example of resolving contractual disputes………

A contract is a satisfaction with a document, a document transactionbetween related parties about the performance of a job, in which there is a cleardefinition of the rights and obligations of each party to orient and comply withthe contract according to the provisions of the law as well as the content agreed

in the contract However, in reality, there are still cases where the rights andobligations of the parties are classified, leading to disputes So what is a contractdispute and how it will be resolved will be clearly shown in the essay below

*The Legal basis:

+The Arbitration Rules of the International Chamber of Commerce (ICC)

+ The Hague Convention of 11 June 1955 on the Law Applicable to theInternational Sale of Goods.

+Nations Convention on International Trade in Goods of 11 April 1980 (CISG)+Clause 307 Vietnam Commercial Law 2005

+

*Common types of disputes:

There are some common types of disputes, such as: Issues when your clientreviews your contract; Issues concerning an offer you’ve made in a contract;Disagreements regarding the meaning of a contract’s technical terms; Mistakesand errors concerning the terms you’ve addressed in a contract; Fraud, such as aparty claiming they’ve been forced into signing your contract; Disputes wherethose involved in a contract do not stand by their original agreements mademonths or years earlier

Disputes can also involve the performance of a party’s duties, or where theyhave failed to perform their duties, which have been addressed in a previouslyformed contract This is known as breach of contract An example could be aseller failing to deliver goods to a buyer

1.2 The causes of contractual disputes and Purposes of dealing with them

*Some of the fundamental causes of contract disputes:

The first one is the contract itself The language used iscommonly impenetrable and unintelligible, certainly to thosewithout a legal background but often also to trained people

There is a strong disincentive for many non-lawyers to actuallyread the contract, because past history has taught them thatthe effort will not lead to any real understanding The upshot isthat an undue amount of trust is fostered in the belief that the

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lawyers have got everything right, that the contract iscomplete, consistent, correct, practical and precise.

Presence of an ambiguous contract clause that can beinterpreted in different but valid ways.Absence of a specificclause, and each party adopts a different approach for dealingwith the missing subject matter Often, a facts-based discussionbetween the parties about the difference can resolve thematter, but it’s when the ‘facts’ are not accepted as such by aparty and the difference cannot be reconciled that a full-blowndispute can occur

*Purpose of dealing with contractual disputes:

Firstly, Conflicting issues between the two parties are handled

to ensure the interests of both parties Secondly, Successfulresolution sometimes creates a good foundation for a futurerelationship Thirdly, the dispute resolution process may besupported; Check whether the provisions in the efficiency laware already high enough for appropriate developmentamendments

Dealing with contractual disputes is vere important Whenhandled without the right skill, knowledge and approach, acontractual dispute can end badly, causing harm torelationships, reputation and finances

1.3 Some requirments when settling contractual disputes

Fast, convenient, does not limit or hinder business andcommercial activities

Restore and maintain the relationship of cooperation and trustbetween the parties in the business

Keeping business secrets, reputation of parties and Minimumcost savings.

II How to deal with contractual disputes

There are four commonly used methods of resolving contractual disputes suchas: Negotiation, Mediation, Arbitration and Court The issue of choosing anappropriate commercial dispute settlement method should be considered by theparties and selected on a series of factors such as the objectives to be achieved,the nature of the dispute, the business relationship between the parties.Therefore, when choosing a dispute settlement method, the parties need toclearly understand the nature and consider the advantages and disadvantages ofeach method to make a reasonable decision

2.1.Negotiation

*Definition: Negotiation has been defined as any form of direct or indirect

communication whereby parties who have opposing interests discuss the form

of any joint action which they might take to manage and ultimately resolve thedispute between them

*Characteristics of a negotiation

Voluntary: No party is forced to participate in a negotiation The parties are

free to accept or reject the outcome of negotiations and can withdraw at anypoint during the process

Non-adjudicative: Negotiation involves only the parties The outcome of

a negotiation is reached by the parties together without recourse to a third-partyneutral

Informal: There are no prescribed rules in negotiation The parties are free to

adopt whatever rules they choose, if any Generally they will agree on issuessuch as the subject matter, timing and location of negotiations

Confidential: The parties have the option of negotiating publicly or

privately In the government context, negotiations would be subject to thecriteria governing disclosure as specified in the Access to Information Actandthe Privacy Act

Flexible: The scope of a negotiation depends on the choice of the parties.

The parties can determine not only the topic or the topics that will be the subject

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of the negotiations, but also whether they will adopt a positional-basedbargaining approach or an interest-based approach.

*Advantages of negotiation

In procedural terms, negotiation is probably the most flexible form

of dispute resolution as it involves only those parties with an interest inthe matter and their representatives, if any

The parties are free to shape the negotiations in accordance with their ownneeds By ensuring that all those who have an interest in the dispute have beenconsulted regarding their willingness to participate and that adequate safeguardsexist to prevent inequities in the bargaining process (i.e., an imbalance in powerbetween the parties), the chances of reaching an agreement satisfactory to all areenhanced

Negotiation is a voluntary process. No one is required to participate in

negotiations should they not wish to do so

There is no need for recourse to a third-party neutral This isimportant when none of the parties wants to involve outside parties in theprocess, e.g., the matter to be discussed or the dispute to be resolved may behighly sensitive in nature.1

Negotiations may preserve and in some cases even enhance the relationshipbetween the parties once an agreement has been reached between them.Optingfor negotiation instead of litigation may be less expensive for the parties andmay reduce delays

*Disadvantages of negotiation

A particular negotiation may have a successful outcome

However, parties may be of unequal power and the weaker party(ies) may beplaced at a disadvantage Where a party with an interest in the matter in dispute

is excluded or inadequately represented in the negotiations, the agreement'svalue is diminished, thereby making it subject to future challenge In theabsence of safeguards in the negotiating process, the agreement could be viewed

1 https://wtocenter.vn

by a participant or others outside the process as being inequitable, even thoughthe substance of the agreement may be beyond reproach.

A successful negotiation requires each party to have a clearunderstanding of its negotiating mandate If uncertainty existsregarding the limits of a party's negotiating authority, the party will not be able

to participate effectively in the bargaining process

The absence of a neutral third party can result in parties being unable

to reach agreement as they be may be incapable of defining the issues at stake,let alone making any progress towards a solution.The absence of a neutral thirdparty may encourage one party to attempt to take advantage of the other

No party can be compelled to continue negotiating Anyone who chooses toterminate negotiations may do so at any time in the process, notwithstanding thetime, effort and money that may have been invested by the other party orparties

The negotiation process cannot guarantee the good faith ortrustworthiness of any of the parties.Negotiation may be used as astalling tactic to prevent another party from asserting its rights (e.g., throughlitigation or arbitration)

2.2 Mediation

* Definition

Mediation is a procedure in which the parties discuss their disputes with theassistance of a trained impartial third person(s) who assists them in reaching asettlement It may be an informal meeting among the parties or a scheduledsettlement conference The dispute may either be pending in a court orpotentially a dispute which may be filed in court Attendance at the mediationconference is voluntary by the parties, except where governed by statute orcontract clause.2

2 https://www.justice.gc.ca/eng/rp-pr/csj-sjc/dprs-sprd/dr-rd/index.html

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* Characteristics of mediation

There are numerous reasons why a party to a contractual dispute might choosemediation over traditional litigation or other forms of alternative disputeresolution Some of them are affordability, timely resolution, private sessions,confidentiality, participation in the resolution of the dispute, and in many casespreservation of the interrelationship between the parties

* Types of Mediation

We tend to think mediation processes are all alike, but in fact, mediators followdifferent approaches depending on the type of conflict they are dealing with.Before choosing a mediator, consider the various styles and types of mediationthat are available to help resolve conflict

Facilitative Mediation: In facilitative mediation or traditional mediation, a

professional mediator encourages disputants to reach their own voluntarysolution by exploring each other’s deeper interests In addition, mediators tend

to keep their own views regarding the conflict hidden

Transformative Mediation: In transformative mediation, mediators focus

on empowering disputants to resolve their conflict and encouraging them torecognize each other’s needs and interests At its most ambitious, the processaims to transform the parties and their relationship through the process ofacquiring the skills they need to make constructive change

Evaluative Mediation: Standing in direct contrast to facilitative mediation

is evaluative mediation, a type of mediation in which mediators are more likely

to make recommendations and suggestions and to express opinions Instead offocusing primarily on the underlying interests of the parties involved, evaluativemediators may be more likely to help parties assess the legal merits of theirarguments and make fairness determinations Evaluative mediation is most oftenused in court-mandated mediation, and evaluative mediators are often attorneyswho have legal expertise in the area of the dispute

*Advantages of Mediation

First of all, mediation involves simple procedures which parties can modify

by agreement.Secondly, mediation offers potential savings in time and costs Itcan help keep costs within budget for the management to focus on their businessneeds and development Mediation is also a faster way to resolve your case

than litigation or further investigation It’s conference can be scheduled soonafter the complaint has been screened in

Thirdly, mediation gives both sides the chance to be heard and give their side ofthe story It also allows each side the opportunity to work toward aresolution.Next, mediation is a Win/Win solution for everyone – there are no

losers So it improves communication between the parties and may encouragethem to adopt a more cooperative approach in their future dealings

In addition, mediation is confidential Information shared at the conference

will not be shared with anyone else This advantage is to avoid the risk ofaffecting the reputation of the dispute parties

Finally, because mediation is non-binding and confidential, it involves minimalrisk for the parties and generates significant benefits Indeed, one could say that,even when a settlement is not achieved, mediation never fails, as it causes theparties to define the facts and issues of the dispute, thus in any event preparingthe ground for subsequent arbitration or court proceedings

* Disadvantages of Mediation:

Besides many advantages of mediation, there are three disadvantages ofmediation First, mediation may not be conducted without the consent of all theparties Second, if mediation fails, the cost of mediation will become anadditional burden for the disputing parties Third, someone may take advantage

of the mediation procedure to delay the performance of his/her obligations Thusinfringing parties will lose the right to initiate a lawsuit at Court or arbitrationbecause of the statute of limitations for lawsuits

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