国商Chaper 2.ppt

II. Dispute Settlement 争端解决 A. Settlement of disputes through diplomacy（通过外交途径解决争端） B. Settlement of disputes in international tribunals （在国际争端解决机构解决争端） C. Settlement of disputes in municipal courts（在内国法院解决争议） D. Immunities of states from the jurisdiction of municipal courts （国家在内国法院的管辖豁免） E. Choosing the governing law （选择准据法） F. Refusal to exercise jurisdiction（拒绝管辖） G. Opposition to the exercise of jurisdiction （管辖权异议） H. Proving foreign law （外国法的证明） I. Recognition of foreign judgments （外国判决的承认） A. SETTLEMENT OF DISPUTES THROUGH DIPLOMACY 1. Diplomacy Defined: The process of reconciling the parties to a disagreement by negotiation, mediation, or inquiry. a. Formally applies only to disputes between states. b. Informally applies to disputes involving institutions and individuals (where it is commonly called “alternative dispute resolution”). 2. Negotiation a. Defined: The process of reaching an agreement by discussion. 3. Mediation a. Defined: The use of a third party who transmits and interprets the proposals of the principal parties, and, sometimes, advances independent proposals. 1) Good offices: When mediators provide a channel of communications only. 2) Conciliation: When mediators make a formal investigation and present a formal proposal. 4. Inquiry a. Defined: The determination of a disputed fact or facts by an independent third party. B. SETTLEMENT OF DISPUTES IN INTERNATIONAL TRIBUNALS 1. Where Disputes Are Heard a. Disputes between states or intergovernmental organizations (IGOs) may be heard by: 1) An international tribunal (e.g., ICJ). 2) A dispute resolution panel (e.g., WTO). 3) Arbitration. a) Arbitration is usually arranged on an ad hoc basis. b. Disputes between a private person and a state, or between a private person and an IGO, will normally be decided by either: 1) A municipal court. 2) Arbitration. a) Arbitration is usually arranged through a permanent arbitration tribunal (or “facility”) such as the International Center for the Settlem