B- Business uncertainty
Litigating international business disputes may not be as
satisfactory or optimal alternative for business people. Additional
uncertainties may be practically figured out from the control over the process,
the deficiency of the decision-maker expertise, delays, the narrowed issues and
the limited remedies and sometimes additional indirect costs.
First, based on business practice, it has been argued that in
litigation the control of the process is removed from the client and delegated
to the lawyer and the court. In many sense that it true. Secondly in most
civil
148 In the United States discovery is a technique by
which each party prior to trial seeks to obtain from the
other side information useful in establishing its position or
controvert the position of its adversary. Buhring, C. and Uhle., Arbitration
and Mediation in /nternational Business: Designing procedures for effective
conflict management, International Arbitration Law Library, Kluwer Law
International, 1996
149 French Law n ° 80-538 of July 16, 1980
related to the communication of economic, commercial industrial and financial
documents to foreign natural or legal persons. (regarding the French blocking
statute)
law and common law courts, judges are generalists. In complex
cases such as those involving intricate financial transactions, like in a
cross- border merger, the judge will most often be unfamiliar with the details
and nuances of the background of the dispute. At worst there is the risks that
the judge will become lost in details and render a verdict that is based on a
view that is objectively inaccurate though no demonstrable as reversible error.
Thirdly in many civil law and common law jurisdictions the time required to
bring a matter to trial is measured in years rather than months. In the
meantime unresolved issues can cause disorder on the operations of the client's
business affairs. The party who is disadvantaged by delay is in a weaker
position from which to negotiate a satisfactory settlement.
Moreover, litigation requires that business people's problems is
to be translated into legal issues. Yet a decision about those issues does not
always respond to the real nature of the underlying problem. Courts are
constrained in the range of remedies that can be ordered. Some times that will
be sufficient but not always. And very often even if the money remedy is fully
compensatory it may still not the best outcome that could be achieved. Dominant
features of litigation tends to drive disputing parties further spaced out
while effective resolution may require that they come closer together. This is
in part attributable to the needs of the "adversary system" itself applied by
the majority of civil law countries. Each party is encouraged to state its
position in the most self-serving, and often the most argumentative
terms150. Finally, clients who have been involved in litigation
experience indirect costs in addition to the direct costs of legal fees and
other losses. In some cases these indirect costs can exceed the more visible
measured direct expenses. They include the change of the management time. Both
time and energy are reallocated, as the defense of the litigation becomes a
matter of concern, at the expense of developing the positive potential of the
client's business affairs.
150 ~leadings are some time not very good vehicles for conveying
conciliatory messages!
The uncertainties associated with litigating international
business disputes should bring business people to seek more reliable and
predictable means of resolving the controversies that may arise out during the
negotiations of their agreement.
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