P to P’s
commercial dispute negotiation
Scope of commercial dispute
Investment: any sector of commercial activities; Any kind of corporate IP exploitation: patent,
copyrights, industrial design, trade secreet, trade mark, etc.;
Commercial disputes
Mostly arising from contractual
transactions
settlement of dispute clauses:
Disputes arising from non-contractual
transaction ;
Ex. Infringing patent,
Negotiation clause
Co-operative negotiation
“The parties hereto shall use their best efforts and shall co-operate and negotiate in good faith to resolve any and all disputes which may arise between them relating to this KSO Agreement, the KSO Construction Agreement or the KSO
Project (hereinafter in this Article 18 referred to as a “Dispute”). All such disputes shall be
reffered initially to the KSO Committee for
resolution. For a period of 90 days from date of such referral no party shall take any further
action under this Article 18 in respect of a dispute which has been reffered to the KSO
Arbitration clause
Article 18.3 KSO Agreement:
“The parties hereto hereby consent and agree that any dispute not resolved in accordance with
Section 18.1 shal be submitted to arbitration under the Rule of arbitration of the Indonesia National Board of Arbitration (BANI), upon the
writen consent of both parties, in the absence of such mutual writen consent shal be finally
settled under the Rule of Concilliation and Arbitration of the International Chamber of
Commerce in Geneva by one or more arbitrators appointed in accordance with the said Rules”
“All disputes under this agreement shall be settled through arbitration under commercial arbitration
rules of the stockholm Chamber of Commerce”
How to negotiate ?
- Identifying character (culture) of parties;
- It may be a process of communication between :
similar culture; two different (cross) cultures; and multi-cultures;
- Each has different methods or strategies to
communicate;
- Determining the areas of conflicts; - Narrowing the scope of conflicts; - Making alternative solutions;
- Choosing one of alternatives;
- Making an agreement to take one of forums, like
Possible and useful strategic steps
Party A Speaker
Recognizing culture B
The claim of interest of B Identifying the differences Exchanging information to B Finding simlarities
Seeking for similar areas of Interests
Minizing the rest of differences Formulating consensus
Party B Speaker
Recognizing culture A
The claim of interest of A Identifying the
differences
Exchanging information to A
Finding similarities
Seeking for similar areas of
Interests
Minizing the rest of differences
