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Dispute Resolution in International Agreements

Stephen Hancock, Lawrence Collins, International Resources Law: A Blueprint for Mineral Development (1991)

The theme of this paper is the ways in which business people can in their contracts minimise the uncertainties in this area, so that if a dispute should arise they can receive reliable advice as to what court or tribunal will hear the case and what law will be applied.

In the international context of mineral resources development, the principal problems arise out of the fact that the contractual relations will frequently be between a sovereign state (or a state-owned entity) on the one hand, and a multinational corporation (or its local subsidiary) on the other. For the reasons to be developed below, arbitration is the most common formal mechanism for dispute settlement. The substantive problems which may need to be addressed include: the consequences of nationalisation; the consequences of unilateral legislative alteration of contractual terms; and the potential conflict between the State's wish to accommodate fundamental changes in circumstances, and the private party's wish to uphold the sanctity of contract.

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The distinction between choice of law and choice of forum

Choice of law seeks to answer the following question: when a case comes before a court or an arbitral tribunal, whether it is in New York or London or Paris, what system of law will be applied to determine the rights of the parties? Choice of forum involves the question: wh