international arbitration
ruchi
(Querist) 27 May 2011
This query is : Resolved
When there is a standard arbitration clause on the internet and the other party agrees to it and specifically mentions it and subsequent to that they sign a memorandum of understanding which incorporates another ADR clause which is contrary to the standard arbitration clause on the net and also doesnt specifically mention the seat of arbitration.
now when the dispute arose, which arbitration clause will be binding.its a bit urgent
Devajyoti Barman
(Expert) 27 May 2011
First mention what do you mean by ADR on net.
In general the second clause would be effective.
ruchi
(Querist) 28 May 2011
well the company has a standard clause on its website stating tht any dispute is relation to quality and shipping has to be resolved by mediation followed by arbitration. the other party read this and agreed to it.
but then they entered into mou stating all disputed arising out of this agreement shall be resolved by arbitration followed by mediation.
there was a dispute in relation to quality and regarding some aspects of shipping... i need to prove that the 1st agreement is binding.. how can i do so??
Guest
(Expert) 31 May 2011
Dear Ruchi,
You have not clarified, what did you mean by ADR, as asked by Mr. Devajyoti. Is it correct that by the term ADR, you wanted to say, "American Deposit Receipt" in lieu of the fee deposited by you and the other party?
Secondly, you may also have to clarify, whether you intend to state that the other party agreed to the conditions of the website, which was maintained by you before shipping of the stuff, or the terms of conditions of the arbitrators website?
Thirdly, you may also have to intimate, after which period the altered clause clause stating arbitration and mesiation was entered in the MOU and whether the scanned copy of MOU was sent by email or by post and whether you duly signed and sent the MOU with the altered clause to the other party or not?
Fourth, whether, the goods were shipped after the MOU was received by you or before the receipt of the MOU?
Even such like questions will be asked by the International Arbitrator before starting arbitration.
About the arbitrator's seat, it is immaterial in online international arbitration. Arbitratormay even belong to India, UK, Australia or any other country also, but the seat of the website adminstrator is treated as the seat of the arbitrator. You would however be informed about the arbitrator's name.
However, mediation if mentioned in the website terms & conditions refers to the mediation between the parties themselves, if any held.
You may need to present your case to the arbitrator as per your own terms & conditions as might have been agreed by the other party.
