Law

• Private law


  Law that regulates relationships between private parties (horizontal dimension because both parties are on the same level)
• Public law


  Law that regulates the exercise of public authority; deals with disputes between private party and state or states between themselves (vertical dimension, the state is higher than the person, they are not on the same level)
• Private international law is only concerned with international disputes, not purely internal disputes (only relates to one country)
• Public international law is the body of rules legally binding on States in their interactions with other States, individuals, organisations and other entities
• Law


  A set of rules of conduct that tells you how you should behave. There are two types of rules: prohibitions (what you cannot do) and orders (what you must do)
• Mandatory rules


  Laws that you cannot derogate by agreement
• Dispositive (gap-filling) rules


  Laws that are only applied if the parties did not make another agreement
• Laws are established and enforced by public authority. They are the expression of the will of society, differing from moral rules or religious rules
• The law aims to seek efficient organisation of society, characterised by justice and legal certainty
• Domains of private international law

  • International jurisdiction
  • Applicable law
  • Recognition and enforcement of foreign judgments and authentic instruments
• International jurisdiction


  Determining which court has the competence to deal with the dispute and where the litigation can take place
• Applicable law


  Determining which law governs the dispute
• Recognition


  Accepting the legal consequences of a foreign decision
• Enforcement


  Using a foreign judgement as the basis to seize the assets of the losing party to ensure payment
• Private international law is the branch of law providing legal answers to issues arising out of cross-border private relationships. It builds bridges between different legal systems and aims to refer to the correct judges and/or legal systems
• Sources of private international law

  • Treaties
  • EU Regulations
  • National rules
• EU Regulations are binding legislative acts which must be applied in their entirety across the EU
• Denmark and Ireland have special arrangements with the EU regarding private international law legislation
• Forms of dispute resolution

  • Litigation
  • Arbitration
  • Mediation
• Litigation


  The traditional route where parties go to the state court and let the state court rule on their dispute
• Arbitration


  An alternative dispute resolution where parties set out in their contract how they will deal with a dispute, and a neutral third party (the arbitrator) makes a binding decision
• Mediation


  An alternative dispute resolution where parties choose a method of dispute resolution in their contract
• The PIL does not deal with arbitration and mediation
• LITIGATION


  PIL regulates jurisdiction for litigation before state courts. It is the norm of dispute resolution.
• ARBITRATION


  The resolution of a dispute by the binding decision (called the award) made by a neutral third party (called the arbitrator), without resorting to court action
• Arbitration


  • Arbitrators are chosen by the parties (mostly lawyers or law professors)
  • It has become the preferred method for resolving disputes to avoid having to litigate before the court of the other party's country
• Institutional arbitration


  Parties decide to let the arbitral procedure be governed by the arbitration rules of a certain institution
• Ad hoc arbitration


  Parties draft their own rules for the organisation of the arbitral procedure
• Types of arbitration


  • Commercial arbitration
  • Investment arbitration
• Advantages of arbitration over litigation

  • Speed
  • Confidentiality
  • Expertise
  • Flexibility/informality
  • Finality
  • Neutrality
  • Enforcement under New York Convention
• The cost of arbitration is usually higher than for litigation
• Final offer/baseball arbitration


  One arbitrator or more are appointed and the parties both explain their part of the story to the arbitrator. At the end, they will submit their best monetary award (offer) to the arbitrator, who decides and picks the option they think is best.
• MEDIATION


  A voluntary, informal and flexible procedure in which a neutral third party (called the mediator) assists parties in finding a negotiated solution (called a settlement)
• Advantages of mediation


  • Speed
  • Confidentiality
  • Cost
  • Solutions don't need to be based on the law
  • Survival of business relationship
• Caucus


  A private meeting between mediator and one of the parties
• 5,000 cases per year of mediation in Belgium, not a lot compared to 1 million court cases
• In China, 6 million court cases and 9 million disputes are mediated
• Multi-tiered dispute resolution clause


  The dispute resolution goes through a sequence of steps (e.g. negotiation, then mediation, then litigation/arbitration)
• MedArb


  The first sessions are done with a mediator, and if no solution can be found, the process will be transformed to an arbitration
• ArbMed


  The arbitration is done and the award is locked away, then some sessions are spent with a mediator, and if no negotiated solution can be found, the arbitration award will resolve the dispute