Originally from:
AAA/ICDR Handbook on International Arbitration and ADR 2nd Edition - Hardcover
AAA/ICDR Handbook on International Arbitration and ADR - 2nd Edition - Electronic
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CHAPTER 28
SAVING TIME AND MONEY IN CROSS-BORDER
COMMERCIAL DISPUTES
Walter G. Gans∗
I. Introduction
The number of transnational transactions spawned by an expanding
global economic environment and trade liberalization is increasing at a
rapid rate. Many of these are in the form of joint ventures, alliances and
other collaborative arrangements which envisage ongoing, usually longterm,
business relationships.
But just as two people getting married are not disposed to foresee
disputes between themselves or contemplate the unthinkable, a rupture or
a divorce, so business negotiations typically have failed to recognize, in
otherwise detailed documentation of their venture, the importance of
anticipating the consequences of future disagreements that might result
in serious disputes. Lawyers’ efforts to get the business people to focus
on these issues, let alone to adopt well-articulated modalities to handle
differences of opinion, often fall short. What frequently results is a
truncated dispute resolution clause that fails to take into account the
nature of the transactions envisaged, the organization and cultures of the
participants, and their intentions, whether or not expressed at the outset.
Yet, business executives will acknowledge that in any long-term
contractual relationship differences in business philosophy and
interpretation of the negotiated deal are inevitable. The document
evidencing the relationship cannot possibly foresee, nor perhaps should
it, the myriad areas of possible conflict and disagreement. Nevertheless,
the ideal time to acknowledge and deal with potential future conflict is at
