Dear megsie,
This question appears, to my eye, to be difficult to answer. The
analysis would have to begin with the laws of France, Germany, and (if
different) the nation(s) where the contract is to be put into effect.
For example, if a French Company contracted to deliver a shipment of
items from Malaysia to the Canadian affiliate of the German company,
there would be four nations in which litigation could potentially be
commenced.
Each nation might accept litigation between the parties, or might
defer to the courts of a different nation. If they accept the
litigation, they would then apply a "choice of law" analysis, to
decide if their laws should apply in whole or in part the laws of a
different nation when interpreting or applying the agreement(s). (That
is to say, a German court might decide that it had jurisdiction to
hear the case, but that parts of the contract should be interpreted
under the laws of France.)
Finally, each nation's courts, when confronted with this matter, would
have different laws and standards for determining if the arbitration
agreement is binding, whether it should be enforced despite the
illness of the chosen arbitrator, and how it can be enforced given
that illness.
If both parties sincerely want to arbitrate, they are probably best
served by trying to reach a compromise. Researcher pinkfreud suggested
one option. Another would be to have each side choose an arbitrator,
and to have their chosen arbitrators pick a third, neutral arbitrator.
The third could then determine the case, either acting individually or
as part of a three-arbitrator panel. Another option would be to agree
to apply the rules of a major dispute resolution society (such as the
American Arbitration Association), and then apply that organization's
rules for selecting an unbiased arbitrator. |
