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International
Marketing MKT630
VU
Lesson
# 12
FOREIGN
NATIONAL ENVIRONMENTS
Dispute
resolution and Exchange Rate
Environments
Dispute
resolution in international
business:
Following
issues are raised when
thinking of business dispute
resolution by international
marketers;
·
Which
country's law applies?
·
In
which country should the
issue be resolved?
·
What
technique should be used to resolve the
conflict?
·
How
will the settlement be enforced?
The
above questions are answered in following
section.
Methods
of International Business Dispute
Resolution:
Methods
of international business dispute
resolution include:
·
Lawsuits
(litigation)
·
Negotiations
·
Conciliations
·
Mediation
·
Arbitration
One
could theoretically include
violence or even war as part of
this spectrum, but dispute
resolution
practitioners
do not usually do so;
violence rarely ends
disputes effectively, and indeed,
often only
escalates
them. Some individuals, notably
Joseph Stalin, have stated
that all problems emanate
from
man,
and absent man, no problems ensue. Hence,
violence could theoretically end
disputes, but
alongside
it, life.
Dispute
resolution processes fall
into two major
types:
·
Adjudicative
processes, such as litigation or
arbitration, in which a judge,
jury or arbitrator
determines
the outcome.
·
Consensual
processes, such as mediation,
conciliation, or negotiation, in which
the parties
attempt
to reach agreement.
Not
all disputes, even those in which
skilled intervention occurs, end in
resolution. Such
intractable
disputes
form a special area in dispute
resolution studies.
Conciliation
Conciliation
is an alternative dispute resolution
process whereby the parties to a dispute
(including
future
interest disputes) agree to utilize the
services of a conciliator, who
then meets with the
parties
separately
in an attempt to resolve their
differences. Conciliation differs
from arbitration in that
the
conciliation
process, in and of itself, has no
legal standing, and the conciliator
usually has no
authority
to
seek evidence or call witnesses,
usually writes no decision, and
makes no award. Conciliation
differs
from
mediation in that the main
goal is to conciliate, most of the
time by seeking concessions. In
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mediation,
the mediator tries to guide the
discussion in a way that
optimizes parties needs, takes
feelings
into
account and reframes
representations.
In
conciliation the parties seldom, if ever,
actually face each other
across the table in the presence of
the
conciliator.
(This latter difference
can
be
regarded as one of species to genus. Most
practicing mediators
refer
to the practice of meeting with the parties separately
as "caucusing" and would regard
conciliation
as
a specific type or form of
mediation practice -- "shuttle diplomacy"
-- that relies exclusively
on
caucusing.
All the other features of conciliation
are found in mediation as
well.)
If
the conciliator is successful in
negotiating an understanding between the parties,
said understanding is
almost
always committed to writing
(usually with the assistance of
legal counsel) and signed by the
parties,
at which time it becomes a
legally binding contract and
falls under contract
law.
Recent
studies in the processes of negotiation
have indicated the effectiveness of a technique
which
deserves
mention here. A conciliator
assists each of the parties to
independently develop a list of
all of
their
objectives (the outcomes
which they desire to obtain
from the conciliation). The
conciliator then
has
each of the parties separately prioritize
their own list from
most to least important. She
then goes
back
and forth between the parties and
encourages them to "give" on the
objectives one at a time,
starting
with the least important and
working toward the most
important for each party in
turn. The
parties
rarely place the same priorities on
all objectives, and usually have
some objectives which are
not
on
the list compiled by parties on the other
side. Thus the conciliator can quickly
build a string of
successes
and help the parties create an atmosphere
of trust which the conciliator can
continue to
develop.
Most
successful conciliators are
highly skilled negotiators.
Some conciliators operate under the
auspices
of
any one of several non-governmental
entities, and for governmental
agencies such as the Federal
Mediation
and Conciliation Service.
Mediation
Mediation
in legal terminology comprises an
act of bringing two states,
sides or parties in a dispute
closer
together toward agreement
through alternative dispute
resolution, a dialogue in which
a
(generally)
neutral third party, the
mediator,
using appropriate techniques, assists
two or more parties to
help
them negotiate an agreement, with
concrete effects, on a matter of common interest.
More
generally
speaking, the term "mediation" covers any
activity in which an impartial
third party (often a
professional)
facilitates an agreement on any matter in
the common interest of the parties involved.
Mediation
applies to different fields,
with some common peculiar
elements and some differences
for
each
of its specialties. The main
fields of mediation include
commerce, legal disputes and
diplomacy,
but
forms of mediation appear in other
fields as well. Mediation in marriage
technically belongs in the
category,
although it has followed its
own peculiar history since
the times of ancient Greeks:
compare
marriage
counseling.
Common
aspects of mediation
Mediation
as a process involves a third
party (often a neutral third
party) assisting two or more
persons,
("parties"
or "stakeholders") to find
mutually-agreeable solutions to difficult
problems.
People
make use of mediation at all
levels and in all contexts, from
minor disputes to global
peace talks.
This
makes it difficult to provide a general
description without referring to
practices in specific
jurisdictions
- where 'mediation' may in fact have a
formal definition and in some
venues may require
specific
licenses. This article
attempts only a broad
introduction, with more specific
processes (such as
peace
process, binding arbitration, or
mindful mediation) referred to
directly in the text.
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While
some people loosely use the
term 'mediation' to mean any
instance in which a third
party helps
people
find agreement, professional mediators
generally believe it essential
that mediators have
thorough
training, competency, and continuing
education.
Some
few of the types of business disputes or
decision-making that often go to
mediation include the
following:
·
Financial
or budget disagreements
·
Family
businesses
·
Estate
disputes
·
Workplace:
·
Wrongful
termination
·
Discrimination
·
Harassment
·
Grievances
·
Labour
management
·
Public
disputes
·
Environmental
·
Land
use
·
Disputes
involving the following
issues:
·
Landlord-tenant
·
Homeowners'
associations
·
Builders/contractors/realtors/homeowners
·
Contracts
of any kind
·
Medical
malpractice
·
Personal
injury
·
Partnerships
·
Non-profit
organizations
Mediation
commonly includes the following
aspects or stages:
·
a
controversy, dispute or difference of
positions between people, or a need
for decision-making
or
problem-solving;
·
decision-making
remaining with the parties rather than
imposed by a third party;
·
the
willingness of the parties to negotiate a
positive solution to their
problem, and to accept a
discussion
about respective interests and
objectives;
·
the
intent to achieve a positive result
through the facilitative help of an
independent, neutral
third
person.
In
the United States, mediator
codes-of-conduct emphasize 'client-directed'
solutions rather than
those
imposed
by a mediator in any way.
This has become a common,
definitive feature of mediation in
the
US
and in the UK.
Mediation
differs from most other
adversarial resolution processes by
virtue of its
simplicity,
informality,
flexibility, and economy.
The
typical mediation has no
formal compulsory elements,
although some common elements
usually
occur:
·
each
party allowed to explain and
detail his/her story;
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·
the
identification of issues, usually
facilitated by the mediator;
·
the
clarification and detailed specification
of respective interests and
objectives;
·
the
conversion of respective subjective
evaluations into more objective
values;
·
identification
of options;
·
discussion
and analysis of the possible effects of various
solutions;
·
the
adjustment and the refining of the proposed
solutions;
·
the
memorialization of agreements into a
written draft
Due
to the particular character of this
activity, each mediator uses
a method of his or her own (a
mediator's
methods are not ordinarily
governed by law), that might
eventually be very different
from the
above
scheme. Also, many matters
do not legally require a
particular form for the
final agreement,
while
others
expressly require a precisely determined
form. Most countries respect a
mediator's
confidentiality.
Mediation
in business and in commerce
The
eldest branch of mediation applies to
business and commerce, and still
this one is the widest field
of
application,
with reference to the number of mediators in these
activities and to the economical range of
total
exchanged values.
The
mediator in business or in commerce helps
the parties to achieve the final goal of
respectively
buying/selling
(a generical contreposition that
includes all the possible varieties of
the exchange of
goods
or rights) something at satisfactory
conditions (typically in the aim of
producing a bilateral
contract),
harmonically bringing the separate
elements of the treaty to a respectively
balanced
equilibrium.
The mediator, in the ordinary practice,
usually cares of finding a
positive agreement
between
(or among) the parties looking at the
main pact as well as at the
accessory pacts too,
thus
finding
a composition of all the related
aspects that might combine.
in the best possible way, all
the
desiderata
of
his clients.
This
activity is sometimes scholastically
included among those of the auxiliary
activities of commerce
and
business, but it has to be
recalled that it differs
from the generality of the others,
because of its
character
of independence from the parties: in an ordinary
activity of agency, or in the
unilateral
mandate
this character is obviously missing,
this kind of agent merely
resulting as a longa
manus of
the
party
that gave him his (wider or
narrower) power of representation. The
mediator does not obey to
any
of
the parties, and is a third party,
looking at the contraposition from an
external point of
view.
Subfields
of commercial mediation include
work in well-known specialized branches:
in finance, in
insurance,
in ship-brokering, in real estate and in
some other individual markets, mediators
have
specialised
designations and usually obey special laws.
Generally, mediators cannot practice
commerce
in
the genre of goods in which they
work as specialized mediators.
Competence
of the mediator
Numerous
schools of thought exist on
identifying the 'competence' of a
mediator. Where parties retain
mediators
to provide an evaluation of the relative
strengths and weaknesses of the parties'
positions,
subject-matter
expertise of the issues in dispute
becomes a primary aspect in
determining 'competence'.
Some
would argue, however, that an
individual who gives an
opinion about the merits or value of a
case
does
not practise true mediation,
and that to do so fatally compromises the
alleged mediator's neutrality.
Where
mediators are expected to be process experts
only (i.e., having been
employed to use their
skills
to
work through the mediation
process without offering
evaluations as to the parties' claims)
competence
is
usually demonstrated by the ability to
remain neutral and to move parties
though various
impasse
points
in a dispute. International professional
organizations continue to debate
what 'competency'
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means.
Current information can be
obtained from professional
associations such as the Association
for
Conflict
Resolution.
Mediation
as a method of dispute
resolution
In
the field to resolving legal
controversies, mediation is an informal
method of dispute resolution,
in
which
a neutral third party, the
mediator, attempts to assist the parties
in finding resolution to
their
problem
through the mediation process.
Although mediation has no
legal standing per
se,
agreements
between
the parties can (usually with
assistance from legal counsel) be
committed to writing and
signed,
thus
rendering a legally binding contract in
some jurisdiction specified
therein.
Mediation
differs from most other
conflict resolution processes by
virtue of its simplicity, and the
clarity
of
its rules. It is employed at all
scales from petty civil
disputes to global peace
talks. It is thus
difficult
to
characterize it independently of these
scales or specific jurisdictions - where
'Mediation' may in
fact
be
formally defined and may in
fact require specific
licenses. There are more
specific processes (such
as
peace
process or binding arbitration or
mindful mediation) referred to
directly in the text.
Safety,
fairness, closure
These
broader political methods usually focus
on conciliation, preventing future
problems, rather than
on
focused dispute-resolution of one
matter.
Mediation
can be reasonably seen as the simplest of
many such processes, where there is no
great
dispute
about political context,
jurisdiction has been
agreed, whatever process
selected the mediator is
not
in doubt, and there is no great fear
that safety, fairness and
closure guarantees will be violated
by
future
bad-faith actions.
If
some warranty of safety, fairness, and
closure can be assumed, then the
process can reasonably be
called
'mediation proper', and be described
thus:
Mediation
with arbitration
Mediation
has sometimes been utilized
to good effect when coupled
with arbitration,
particularly
binding
arbitration, in a process called
'mediation/arbitration'. In this process,
if parties are unable to
reach
resolution through mediation, the
mediator becomes an arbitrator,
shifting the mediation
process
into
an arbitral one, seeking additional evidence as
needed (particularly from
witnesses, if any,
since
witnesses
are normally not called
upon by a mediator), and finally
rendering an arbitral
decision.
This
process is more appropriate in civil
matters where rules of evidence or jurisdiction
are not in
dispute.
It resembles, in some respects,
criminal plea-bargaining and Confucian
judicial procedure,
wherein
the judge also plays the
role of prosecutor - rendering what, in
Western European court
procedures,
would be considered an arbitral (even
'arbitrary') decision.
Mediation/arbitration
hybrids can pose significant
ethical and process problems
for mediators. Many of
the
options and successes of mediation
relate to the mediator's unique role as
someone who wields
coercive
power over neither the parties
nor the outcome. If parties in a mediation
are aware the
mediator
might
later need to act in the
role of judge, the process
could be dramatically distorted.
Thankfully,
mediation-arbitration
often involves using
different individuals in the role of
mediator and (if
needed
later)
arbitrator, but this is not
always the case.
Mediator
liability
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The
role of mediator is less
controversial than the role of
judge, if only because a
mediator may only
propose,
rather than impose, a contract.
The
assumed moral or legal
responsibility, or even liability, of the
mediator differs drastically
in
different
methods - for instance, in
global political negotiations, it is
often difficult to find
anyone who
is
sufficiently trusted by both sides to
even get a peace process to begin.
Accordingly, liability is
not
assigned
to the mediator no matter how
badly things go wrong -
doing so would discourage
future
efforts
to help.
Global
relevance
The
rise of international trade law,
continental trading blocs, the World
Trade Organization (and
its
opposing
anti-globalization movement), use of the
Internet, among other factors, seem to
suggest that
legal
complexity has started to
reach to an intolerable and undesirable
point. There may be no
obvious
way
to determine which jurisdiction
has precedence over which
other, and there may be
substantial
resistance
to settling a matter in any one
place.
Accordingly,
mediation may come into more
widespread use, replacing formal
legal and judicial
processes
sanctified by nation-states. Some, like
the anti-globalization movement, believe
such formal
processes
have quite thoroughly failed to
provide real safety and closure
guarantees that are
pre-
requisite
to uniform rule of
law.
Following
an increasing awareness of the process,
and a wider notion of its
main aspects and
eventual
effects,
mediation is in recent times frequently
proposed as a form of resolution of
international
disputes,
with attention to belligerent
situations too.
However,
as mediation ordinarily needs to be
required by the interested parties and it would be
very
difficult
to impose it, in case one of the parts
refuses this process it cannot be a
solution.
Fairness
As
noted, mediation can only
take place in an atmosphere where there is
some agreement on
safety,
fairness
and closure, usually provided by nation-states
and their legal systems.
But increasingly
disputes
transcend
those borders and include many parties
who may be in unequal-power
relationships.
In
such circumstances, with
many parties afraid to be identified or
to make formal complaints,
terminology
or rules of standing or evidence slanted against some
groups, and without power to
enforce
even
"legally binding" contracts,
some conclude that the process of
mediation would not reasonably
be
said
to be 'fair'.
Accordingly,
even when it is offered and
attempts are made to make it
fair, mediation itself might
not be
a
fair process, and other
means might be pursued.
From
a more technical point of view,
however, one must recall
that the mediation must be
required by
the
parties, and very seldom can it be imposed by
"non-parties" upon the parties.
Therefore, in presence
of
entities that cannot be clearly
identified, and that
practically don't claim for
their recognition as
"parties",
the professional experience of a mediator
could only apply to a
proposal of definition,
that
besides
would always miss the
constitutional elements of a mediation.
Moreover, in such
circumstances,
the
counter-party of these eventual
entities would very likely
deny any prestige of 'party' to
the
opponent,
this not consenting any kind
of treaty (in a correct
mediation).
More
generally, given that
mediation ordinarily produces
agreements containing elements to enforce
the
pacts
with facts that can
grant its effectiveness, note
that the legal system is not
the only means that
will
ensure
protection of the pacts: modern mediation
frequently tends to define
economical compensations
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and
warranties too, generally considered
quicker and more effective.
The concrete 'power' of
an
agreement
is classically found in the equilibre
of
the pact, in the sincere conciliation of
respective
interests
and in the inclusion of measures that
would make the rupture of the pact
very little
convenient
for
the unfaithful party. Pacts
that don't have such
sufficient warranties are only
academically effects of
a
mediation, but would never
respect the deontology of the
mediator.
Arbitration
Arbitration
is a form of mediation or conciliation,
where the mediating party is given
power by the
disputant
parties to settle the dispute by making a
finding. In practice arbitration is
generally used as a
substitute
for judicial systems,
particularly when the judicial
processes are viewed as too
slow,
expensive
or biased. Arbitration is also
used by communities which
lack formal law, as a substitute
for
formal
law.
Commercial
and other forms of contract
arbitration
Agreements
to arbitrate were not enforceable at common
law, though an arbitrator's
judgment was
usually
enforceable (once the parties had already
submitted the case to him or
her). During the
Industrial
Revolution,
this situation became
intolerable for large
corporations. They argued that
too many valuable
business
relationships were being destroyed
through years of expensive
adversarial litigation, in
courts
whose
strange rules differed significantly
from the informal norms and
conventions of businesspeople
(the
private law of commerce, or
jus
merchant).
Arbitration appeared to be faster,
less adversarial, and
cheaper.
The
result was the New York
Arbitration Act of 1920,
followed by the United States
Arbitration Act of
1925.
The USAA is now known as the Federal
Arbitration Act. Thanks to the
subsequent judicial
expansion
of the meaning of interstate commerce, the
U.S. Supreme Court
reinterpreted the FAA in a
series
of cases in the 1980s and 1990s to
cover the full scope of interstate
commerce. In the process,
the
Court
held that the FAA preempted many
state laws covering arbitration,
some of which had
been
passed
by state legislatures to protect their
consumers against powerful
corporations.
Since
commercial arbitration is based
upon either contract law or the
law of treaties, the agreement
between
the parties to submit their dispute to
arbitration is a legally binding
contract. All arbitral
decisions
are considered to be "final and binding."
This does not, however,
void the requirements of
law.
Any dispute not excluded from
arbitration by virtue of law (e.g.
criminal proceedings) may be
submitted
to arbitration.
Other
forms of contract arbitration
Arbitration
can be carried out between
private individuals, between states, or
between states and
private
individuals.
In the case of arbitration between
states, or between states and
individuals, the Permanent
Court
of Arbitration (Hague Tribunal) and the
International Center for the Settlement of
Investment
Disputes
(ICSID) (an institution of the World
Bank Group) are the
predominant organizations.
Arbitration
is also used as part of the
dispute settlement process under the
WTO Dispute Settlement
Understanding.
International arbitral bodies for
cases between private persons
also exist, the
International
Chamber of Commerce Court of
Arbitration being the most
important. The
American
Arbitration
Association is a popular arbitral
body in the United States.
The National Arbitration
Forum
is
another leading arbitration provider in
the United States. Arbitration
also exists in international sport
through
the Court of Arbitration for
Sport.
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A
growing trend among employers whose
employees are not represented by a
labor union is to establish
an
organizational problem-solving process,
the final step of which
consists of arbitration of the issue
at
point
by an independent arbitrator, to resolve
employee complaints concerning
application of employer
policies
or claims of employee misconduct. Employers in the
United States have also
embraced
arbitration
as an alternative to litigation of employees'
statutory claims, e.g., claims of
discrimination,
and
common law claims, e.g., claims of defamation.
Currently found in open Brazillian
markets and
misc.
benches.
Labor
arbitration
Arbitration
has also been used as a
means of resolving labor
disputes for more than a
century. Labor
organizations
in the United States, such as the
National Labor Union, called
for arbitration as early
as
1866
as an alternative to strikes to resolve
disputes over the wages,
benefits and other rights
that
workers
would enjoy. Governments have also
relied on arbitration to resolve
particularly large
labor
disputes,
such as the Coal Strike of
1902.
This
type of arbitration is commonly
known as interest arbitration, since it
involves the mediation of the
disputing
parties' demands, rather than the
disposition of a claim in the manner a
court would act.
Interest
arbitration is still frequently
used in the construction industry to
resolve collective
bargaining
disputes.
The United Steelworkers of America
adopted an elaborate form of interest arbitration,
known
as
the Experimental Negotiating Agreement,
in the 1970s as a means of avoiding the
long and costly
strikes
that had made the industry
vulnerable to foreign competition.
Major League Baseball uses
a
variant
of interest arbitration, in which an
arbitrator chooses between the two
sides' final offers, to
set
the
terms for contracts for
players who are not
eligible for free
agency.
Unions
and employers have also employed
arbitration to resolve employee
grievances arising under a
collective
bargaining agreement. The
Amalgamated Clothing Workers of
America made arbitration
a
central
element of the Protocol
of Peace it
negotiated with garment manufacturers in the
second decade
of
the twentieth century. Grievance
arbitration became even more popular
during World War II,
when
most
unions had adopted a no-strike pledge.
The War Labor Board,
which attempted to mediate
disputes
over
contract terms, pressed for
inclusion of grievance arbitration in
collective bargaining
agreements.
The
Supreme Court subsequently made
labor arbitration a key
aspect of federal labor
policy in three
cases
which came to be known as the
Steelworkers' Trilogy. The Court
held that grievance
arbitration
was
a preferred dispute resolution
technique and that courts
could not overturn
arbitrator's awards
unless
the
arbitrator exceeded his or her
authority, engaged in fraud or
corruption, or violated basic
due
process.
Securities
arbitration
In
the United States securities industry,
arbitration has long been
the preferred method of resolving
disputes
between brokerage firms, and between
firms and their customers.
The securities industry uses
a
pre-dispute
arbitration agreement, where the parties
agree to arbitrate their
disputes before any
such
dispute
arises. Those agreements were
upheld by the United States
Supreme Court in Shearson
v.
MacMahon,
482 U.S. 220 (1987) and
today nearly all disputes
involving brokerage firms
are resolved in
arbitration.
The
process operates under its
own rules, and is described in an article
Introduction to Securities
Arbitration.
Securities arbitrations are held
primarily by the NASD Dispute
Resolution program and
the
New
York Stock Exchange.
Judicial
arbitration
Some
state court systems have
promulgated court-ordered arbitration;
family law (particularly
child
custody)
is the most prominent example.
Judicial arbitration is often
merely advisory dispute
resolution
technique,
serving as the first step
toward resolution, but not
binding either side and
allowing for trial de
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novo.
Litigation attorneys present their
side of the case to an independent
teritary lawyer, who issues
an
opinion
on settlement. Should the parties in question decide
to continue to dispute resolution
process,
there
can be some sanctions imposed
from the initial arbitration per
terms of the contract.
Proceedings
Various
bodies of rules have been developed that
can be used for arbitration
proceedings. The two
most
important
are the UNCITRAL (United
Nations Commission on International Trade
Law) rules (Model
Law)
and the ICSID rules. The rules to be
followed by the arbitrator are
specified by the agreement
establishing
the arbitration.
The
Convention on the Recognition and
Enforcement of Foreign Arbitral
Awards (Done at New
York,
10
June 1958; Entered into
force, 7 June 1959; 330
U.N.T.S. 38, 1959) provides
for the enforcement of
foreign
arbitral awards on the territory of the
contracting parties. Similar provisions
are contained in the
earlier
Convention on the Execution of Foreign
Arbitral Awards (Done at Geneva, 26
September 1927;
Entered
into force, 25 July 1929;
L.N.T.S. ???).
Some
jurisdictions have instituted a limited
grace period during which an
arbitral decision may
be
appealed
against, but after which there
can be no appeal. In the case of
arbitration under
international
law,
a right of appeal does not in general
exist, although one may be
provided for by the
arbitration
agreement,
provided a court exists capable of
hearing the appeal.
When
arbitration occurs under
U.S. law, either party to an
arbitration may appeal from the
arbitrator's
decision
to a court, however the court
will generally not change
the arbitrator's findings of fact
but will
decide
only whether the arbitrator
was guilty of malfeasance, or
whether the arbitrator exceeded
the
limits
of his or her authority in the arbitral
award or whether the award conflicts with
positive law. The
Supreme
Court has described the standard of
review as one of the narrowest known to
Western
jurisprudence.
Arbitrators
Arbitrators
are not bound by precedent
and have great leeway in such matters as
active participation in
the
proceedings, accepting evidence, questioning
witnesses, and deciding
appropriate remedies.
Arbitrators
may visit sites outside the
hearing room, call expert
witnesses, seek out
additional evidence,
decide
whether the parties may be represented by
legal counsel, and perform many
other actions not
normally
within the purview of a court. It is
this great flexibility of action,
combined with costs
usually
far
below those of traditional
litigation, which makes
arbitration so attractive.
Arbitrators
have wide latitude in crafting
remedies in the arbitral decision,
with the only real
limitation
being
that they may not
exceed the limits of their
authority in their award. An example of
exceeding
arbitral
authority might be awarding one
party to a dispute the personal
automobile of the other
party
when
the dispute concerns the specific
performance of a business-related contract.
It
is open to the parties to restrict the possible awards
that the abitrator can make. If
this restriction
requires
a straight choice between the position of
one party or the position of the
other, then it is
known
as
pendulum
arbitration or final
offer arbitration. It is designed to
encourage the parties to moderate
their
initial positions so as to make it more
likely they receive a
favourable decision.
No
definitive statement can be
made concerning the credentials or experience
levels of arbitrators,
although
some jurisdictions have elected to establish
standards for arbitrators in
certain fields. Several
independent
organizations, such as the American
Arbitration Association, offer
arbitrator training
programs
and thus in effect, credentials.
Generally speaking, however, the
credibility of an arbitrator
rests
upon reputation, experience level in
arbitrating particular issues, or
expertise/experience in a
particular
field. Arbitrators are
generally not required to be
members of the legal profession.
38
International
Marketing MKT630
VU
To
ensure effective arbitration and to
increase the general credibility of the
arbitral process,
arbitrators
will
sometimes sit as a panel,
usually consisting of three arbitrators.
Often the three consist of an
expert
in
the legal area within which
the dispute falls (such as contract
law in the case of a dispute
over the
terms
and conditions of a contract), an expert in the
industry within which the
dispute falls (such as
the
construction
industry, in the case of a dispute
between a homeowner and his general
contractor), and an
experienced
arbitrator.
Exchange
rate systems:
Exchange
rate is the price of one country's
currency in terms of another country's
currency. Three types
of
exchange rate systems are
give in the following;
Fixed
exchange rate system (the
exchange rate is
fixed)
Flexible
(floating) exchange rate system
(the
exchange rate is determined by market
forces
and
changes freely)
Managed
exchange rate system (the
exchange rates are allowed to
move only within limits
-
if
the exchange rate is moving
out of the desired limit then
central banks buy or sell
the
currencies
to control the exchange
rate)
Pros
and Cons of Fixed & Flexible Exchange-Rate
Systems
Fixed
and flexible exchange rate systems have
their pros and cons that
are listed below;
·
Fixed
exchange-rate system
reduce
riskiness of international
trade
important
anti-inflationary tool
wide
swings in the values of key currencies
can disrupt sound
international investment
decision
making
·
Flexible
exchange-rate system
with
BOP equilibrium, domestic policy
makers can concentrate on domestic
economy
represent
true state of economy
Factors
influencing exchange-rates:
Business
in international markets are
strongly affected by exchange
rates of host and home
countries'
currencies
as well as with other
exchange rates. The major
factors that affect exchange rates
are
discussed
in the following;
Capital
controls on any foreign currency
would often work to increase
its exchange rate as its
trading
·
gets
restricted.
Higher
exchange-rate spreads (difference between
buying and selling rate of a currency)
allows more
·
flexibility
to buyers and sellers to change
exchange rates.
Strong
balance-of-payments statistics of any
country affect that
country's currency to strengthen.
·
Higher
foreign-exchange reserves of any
country influence that
currency of that country to
appreciate
·
in
value.
39
International
Marketing MKT630
VU
Direction
and strength of economic growth any
country also affects its
currency's exchange
rates.
·
Government
spending increases money in circulation
and also affects growth ot
certain sectors of a
·
country's
economy and may also affect
exchange rates.
Relative
inflation rates (purchasing
power parity - higher
relative inflation leads to lower
purchasing
·
power
of currency & hence lower exchange
value) also
affect exchange rates with
pressure on the
currency
of the country with higher
inflation to depreciate overtime.
Large
money-supply growth increases
inflation and accordingly affects the
value of a country's
·
currency.
Interest-rate
differentials (investors
will arbitrage to keep exchange rates in
equilibrium) also
work
·
like
the relative inflation rates in
affecting the currency of a
country.
Trends
in exchange-rate movements also impact
the direction of exchange rate movements,
at-least
·
in
near-term future.
In
time of economic turmoil in the regains of the
world investors move their
capital in the currencies
·
that
are strong (safe haven) and
with increasing demand their
exchange rates may
increase.
Technical
factors (i.e. seasonal, release of
statistical data) also affect
exchange rates in near-term.
·
Business
implications of exchange
rates:
Changes
in exchange rates of international
currencies impact business decisions in
many ways. Some of
the
common implications of changing exchange
rates are discussed
below;
Marketing
Decisions
Changes in
exchange rates affect demand
for products (home & abroad)
Marketer may
need to change prices of products and
services
Production
Decisions
Changes in
exchange rates may affect
production costs in various
countries
Financial
Decisions
Changes in
exchange rates affect
sourcing of funds by
firms
Also affect
cross-border remittances of funds
and reporting of
financial results into home
country accounts
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