11. 사후 단계

(1)

English for Global Business

Unit 08 Follow-up Phase

(2)

After studying this lesson, you will be able to :

• understand the

definition of Claim;

• identify

Management of Claims and Disputes;

Objectives

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At the Follow-up Phase

, claims by trading

partners involved may occur and the dispute

settlement procedure between the contracting

parties will be determined.

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 International businesses face regular

potential conflicts

between other businesses, customers, suppliers and

trading partners.

 Many can be dealt with quickly and effectively through

negotiation, yet some disputes that remain unresolved may

affect the profitability and productivity of a business.

 Alternative dispute resolution

, for example, is the

practice

of

settling

such

disputes

without

using

conventional legal modalities (e.g. the court proceedings).

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Claims between Businesses

 There are claims or disputes over terms of trade with suppliers,

predatory pricing, misuse of market positioning, misleading or

deceptive conduct, and can involve suppliers, operators in both

his/her own country or other nations around the world and

competitors.

 Sales contracts

can suffer from breaches in

performance

and

disputes

are

commonly

focused on price, delivery of goods, quality and

customer service standards.

 Claims

regarding the Trade Practices cases involve

areas such as price fixing, price discrimination,

restraint

of

trade(including

certain

types

of

exclusive dealings), abuse of market power(i.e.

called Market Claim), misleading/deceptive conduct

and unconscionable conduct (i.e. referring to

International Claim).

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The methods used to resolve disputes include the litigation

and alternative dispute resolution (ADR) processes such as

negotiation, mediation, conciliation and arbitration.

Management of Claims and Disputes

The Methods used to resolve disputes

PARTIES SEEK TO RESOLVE DISPUTE

Litigation (traditional route)

Adversarial - binding decision of

third party

Procedure – governed by rules Consider positions rather than

interests in public domain

ADR (alternative)

Consensual Control

Continued business relations Confidentiality

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(i) Negotiation

 In negotiation, both parties attempt to reach an agreement or

settlement of disputes through give and take in an informal discussion.

 No third party is involved in the negotiation.

Management of Claims and Disputes

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(ii) Mediation

 Mediation is a dynamic, structured, interactive process where a neutral third party assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process.

 Mediation is a “party-centered” process in that it is focused primarily upon the needs, rights, and interests of the parties.

 The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution.

 In mediation, a neutral 3rd _{party assists the negotiations but does not render}

a binding decision.

 A disinterested third party acts as a go-between to help resolve disputes among parties themselves.

Management of Claims and Disputes

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(iii) Conciliation

 Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences.  They do this by lowering tensions, improving communications,

interpreting issue, encouraging parties to explore potential solutions and assisting parties in finding a mutually acceptable outcome.

 Conciliation differs from mediation in that in conciliation, often the parties are in need of restoring or repairing a relationship, either personal or business.

Management of Claims and Disputes

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(iv) Arbitration

 In some countries, arbitration is a process provided by an act of law, adopted by parties through mutual agreement stipulating that they will submit any dispute that may arise between them to the impartial judgement of some third party of their choice and that the award by this impartial person will be final and binding.

Management of Claims and Disputes

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(v) Litigation

 In litigation, an accusing party (the plaintiff) files a lawsuit against an accused party (the defendant) with a judicial court of a country.

 The court system renders a judgment or a decision based on relevant law and the facts.

 Litigation is the most expensive and time-consuming method of dispute settlement.

 In many cases, it take several years to get a court date.

 Parties must do their best to resolve disputes through means other than litigation not only to save time and money, but also to avoid bad publicity.