01 e = P to P Negotiation - 04 March 2010
P to P’s
commercial dispute negotiation
Zulherry
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.;
Any kind of purchasing (transactions) of goods and
services
Commercial disputes
Mostly arising from
contractual
transactions
settlement of dispute
clauses:
Disputes arising from
non-contractual
transaction ;
Ex. Infringing patent,
copyrights, and others
corporate IP;
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
Committee in accordance with this section 18.1
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
mediation, or mediation;
Possible and useful strategic steps
Party A
Party B
Speaker
Speaker
Recognizing culture B
Recognizing culture A
The claim of interest of B The claim of interest of A
Identifying the differencesIdentifying the
Exchanging information to Bdifferences
Exchanging information
Finding simlarities
Seeking for similar areas of to A
Finding similarities
Interests
Seeking for similar areas
Minizing the rest of differences
of
Formulating consensus
Interests
Minizing the rest of
differences
commercial dispute negotiation
Zulherry
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.;
Any kind of purchasing (transactions) of goods and
services
Commercial disputes
Mostly arising from
contractual
transactions
settlement of dispute
clauses:
Disputes arising from
non-contractual
transaction ;
Ex. Infringing patent,
copyrights, and others
corporate IP;
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
Committee in accordance with this section 18.1
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
mediation, or mediation;
Possible and useful strategic steps
Party A
Party B
Speaker
Speaker
Recognizing culture B
Recognizing culture A
The claim of interest of B The claim of interest of A
Identifying the differencesIdentifying the
Exchanging information to Bdifferences
Exchanging information
Finding simlarities
Seeking for similar areas of to A
Finding similarities
Interests
Seeking for similar areas
Minizing the rest of differences
of
Formulating consensus
Interests
Minizing the rest of
differences