overreliance on power, history assignment help
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I need three forum responses which will be listed below. APA format with works cited. Please help with a response to each of the below listed posts.
Overreliance on power in arbitration can cause many problems, especially when the arbitrator is a non-state actor, which is generally the case (and also arguably one of arbitration’s best benefits). The agreements reached in arbitration (and other forms of conflict resolution) have greater implications than internal resolutions or resolutions that apply only to private parties, so care must be taken in this conflict resolution approach (Basaran 2015, 501). When nation states are signatories to the same treaties and conventions, this makes the enforcement of arbitration settlements much more likely to hold and legally binding.
Sometimes a state is reluctant to accept international arbitration as a means of dispute settlement, such as in the case of many countries in Latin America prior to the 1990s (Brunet and Lentini 2007, 593). In cases such as these, states have historically not been involved in international politics or perhaps do not see eye-to-eye with the world’s hegemon(s) and therefore may be historically biased against international intervention in conflict resolution. If arbitrators choose to ignore this and use their power to mandate settlements, the likelihood of pushback or refusal (and possibly resentment) would be fairly high. The stance of non-intervention is also very high within Southeast Asia whereby the Association of Southeast Asian Nations (ASEAN) has been unable to affect real change in many of its member states (particularly in human rights issues) due to a cultural attitude that intervention shall not be allowed because of an antiquated idea that it would undermine and end national sovereignty.
However, as the international market shifts and the number of international investors- as well as cash flow- increases in states who previously shunned arbitration, the pressure and requirements for a comprehensive and reliable method of conflict resolution also increases. It is important to ensure that the arbitrators and neutral actors involved in arbitration have legitimacy in order to ensure that there is not corruption and to encourage acceptance of resolution requirements. Without legitimacy, there is not much else and would cause confidence in the system to be undermined (Wang 2009, 317).
Furthermore, there is the issue that it can be very hard for foreign parties (even third party actors or international courts) to enforce settlements in other countries in which they do not have jurisdiction (Ibid. 329). When a state adopts the laws that are utilized to reach agreements through arbitration into their own domestic laws, use of power becomes more commonplace and enforcement is easier. There are also other international mechanisms that can be used in conjunction with settlement enforcement, such as political and economic sanctions to help influence states when used appropriately so that overreliance on arbitrator power is not as likely.
Arbitrators possess the power to mandate settlements, but the most successful arbitrators use that power carefully. Discuss the reasons that arbitrators might be wise to avoid over-reliance on power in trying to reach a settlement between two groups. Be sure to provide examples that demonstrate your arguments (current events and from the textbook and/or journal readings).
Arbitration is classified as a legal means of settlement because, along with judicial settlement, the goal is a binding decision that is usually based on international law that the parties have agreed not to reject (1). Parties can be hesitant to turn over control of a dispute to even an impartial third party. This was the case in Latin America due to the adherence to anti-interventionist doctrine (2). Once parties agree to arbitration, there are still many hurdles that must be considered and treated carefully. Because arbitration is legally binding, this method of dispute settlement can get very complex when it comes to the award.
Parties can appeal for several reasons. One is if they feel the arbitrator was chosen contrary to in-place treaties, meaning that the following proceedings and/or award would be null. Another reason parties can appeal is if they are not satisfied that the questions set out at the start were answered, or that the arbitrator failed to choose one of the preset options for resolution. These grounds, if proven viable, also render the outcome null because of procedural deviance. The agreement of how the arbitration will be run are one of the only ways parties can have any control of the process before they put their dispute into a third party’s hands. Other reasons can be if the arbitrator is found to be other than impartial, has their own agenda related to the outcome of the dispute, has failed to give reasons for a decision, or committed fraud (1). Some of these bases for appeals are rare, like the debating of the legality of appointment of an arbitrator, which did occur in the Peace Treaties case, where Nicaragua submitted that the appointment of the King of Spain was invalid (1). Additionally, accusations of fraud are often just thinly veiled attempts to overturn an unfavorable outcome or award, as was the case with Argentina in the Beagle Channel award (1).
The goal of arbitration is the peaceable resolution of a dispute. The delicacy of the arbitration proceedings and the binding nature of an award, are reason enough for an arbitrator to exercise caution throughout the case and when developing a solution, lest their hard work be dismissed on a technicality and the dispute remain unsettled.
Thank you for your following thoughts on the importance of the Arbitrator maintaining a perception of fairness and objectivity: “Arbitration does not aim to ensure that one party in successful but instead focuses on providing that both sides get the reprieve. The main problem with this is the fact that the arbitration may in many cases be tilted towards on side as compared to the other and this will lead to unfair outcomes. Furthermore, the rules of evidence may not be very useful in arbitrations especially since the case may be more focused on the point of view of the arbitrator (Kantor,2002).The over usage of power in arbitration may also be of many disadvantages especially since the decision in many cases cannot be appealed.”
What can the Arbitrator do to accomplish the above; and why is this important?
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