Expert Determination by Glancing at the Economies Research Paper
- Length: 16 pages
- Sources: 10
- Subject: Business - Law
- Type: Research Paper
- Paper: #62169511
Excerpt from Research Paper :
By glancing at the economies and the trading patterns of the world it can be deduced that the investments made in the petroleum business, forms a radical majority; as it involves huge and many a times capital intensive projects. The facts indicate that the conditions, economies and the states that form the parties to the oil and gas contracts change integrally, this variation causes disputes. Energy in today's world is an ultimate source to generate power and accumulate wealth, so this is hereby an urge of the nations to stay involved as active participants in the contracts pertaining to oil and gas development and enrichment. As petroleum sector forms a major portion of the world's investments and consequently the international structure of energy; the affiliated developmental activities often results in wide range of international investment disputes. The major issue that needs timely anticipation is to analyze a company's methodology and competence to resolve conflicts timely. As it has been mentioned that the contracts pertaining to the oil and gas are prone to disputes and there timely resolution generates the goodwill of an organizations investment and corporate standing.
Dispute in the contract pertaining to the oil and gas is inevitable due to the involvement of huge capital and intellectual properties. Many a times the parties involved in a contract that having an actual dispute select counselors and arbitrators, which serve to facilitate the ongoing dispute among the contracting parties. Keeping the fact in mind that corporations by and large plan and implement operation for devising effective dispute resolution strategies, mainly because of two facts; initially because they need to plan the dispute immediately and secondly because the corporation operate to maximize the profits and at the same time reduce the possible loss that may result as a conflict[footnoteRef:1]. [1: Cummings, S.N. (Ed.). (2003). Oil, Transition and Security in Central Asia. New York: Routledge. Retrieved July 8, 2011, from Questia database: http://www.questia.com/PM.qst?a=o&d=104242848]
The point of dispute management and its needs elevates once the corporations are in a process of binding themselves in a formal contract pertaining to energy including oil or gas, because; at this point the parties are hoping a dispute free contract and a mutually positive actualization and implementations of that very contract. Owing to the importance of dispute management it is generally advisable for the businesses and corporations that at the time of making a contract they should also decide with the mutual consent the ways rather the acceptable ways by which the contract will be dissolved or the dispute will be settled. In has been observed for long that organization or the contracting parties think over the fact of depute management planning as the last clause while negotiating over the contract details and benefits. The negotiation over dispute resolution clause is depended the discretion of the contracting parties. If the contract is among the international parties than this clause is not discussed as it is not considered ethical to discuss the ends before initiating the final terms of the contract, the organizations operate on an ongoing assumption and considering the facts that calls for the interpretations both the applied as well as the enforced[footnoteRef:2]. But on the other hand while considering the nature of domestically contracting parties; they usually discuss the dispute resolution as the last clause of the negotiations mainly due to the fact that the two parties exist and operate within the similar domains and more precisely face similar challenges and scarcities. Nevertheless once the two international parties came into an international energy contract there is a greater risk involved because if the contract ends up at a dispute than there are equal chances for either of the two parties to get exploited by the unfriendly and hostile laws on an international forum. This is therefore advisable that the companies should come up to a valid point where the disputes will be resolved to avoid all possible intrusions. Hence the dispute planning in the international countries hereby does not include the local courts but the process of dispute management and timely management needs an analysis for the resolutions. [2: Energy and International Law: Development, Litigation, and Regulation. (2001). Texas International Law Journal, 36(1), 1+. Retrieved July 8, 2011, from Questia database: http://www.questia.com/PM.qst?a=o&d=5037676098]
The chief forms of disputes that pertain to the oil and gas contracts are the state vs. state disputes, company vs. states disputes, company vs. company and in some cases individuals vs. individuals. Energy as a matter of fact is the substance of core interest and it is hereby the first priority of any and all contracting parties to get frequent resolutions pertaining to the oil and gas contracts. Independent profit maximization is a far cry for the countries across the world because the new era of liberal and state trade practices are far ahead to the criterion.
Apart from the individual interests of the contracting parties the state can also hold a due right in taking a counterfeiting action against or in favor of particular oil and gas or all energy related contracts. The contracts related to the energy including oil as well as gas are mainly devised to enhance the standing of the state and to attract the campaign contributors and the primary constituents. The point or argument is the settlement of the disputes of the parties so that the interest of the contract can be maintained and even on the occasion of intrusions and divergence of the main clauses of the contract the dispute planning tool is utilized[footnoteRef:3]. [3: If Britain Has Flouted Justice and Decency to Feather Its Nest in a Squalid Deal with Gaddafi, the Scandal Will Know No Bounds. (2009, August 24). The Daily Mail (London, England), p. 14. Retrieved July 8, 2011, from Questia database: http://www.questia.com/PM.qst?a=o&d=5031913187]
The contract laws pertaining to the contract of energy including gas and oil shall be discussed in this paper. The paper will also describe the methods of resolution of contract with a special emphasis on the expert determination in settling the disputes pertaining to oil and gas. Out of different methods that are utilized to settle the disputes of contract the method of utilizing the expert determination is focused throughout the paper.
2: Overview of experts' determination in oil and gas contracts
As per the contracts pertaining to the oil and gas agreements the resolution is expected to be attained by the following methods
Throughout the course of this paper the importance and significances of the Expert determination will be highlighted by emphasizing the circumstances that justifies the usage of the expert determination to settle the disputed pertaining to oil and gas contracts by means of various circumstances.
2.1 Definition of Expert Determination
Expert determination is defined in various contexts
Expert determination is a traditionally customary structure of dispute resolution appealed when there in an absence of the originate dispute in which the parties have defined positions that need to be subjected to arbitration, but rather both parties are in agreement that there is a need for an evaluation.
Another definition claims it to be process whereby a neutral expert is nominated under the terms of the contract in order to resolve a conflict with an accord of the agreed upon terms at the time of the contract. But the important fact about this expert says that the decision and the command of this agreed upon expert should be abided by from either of the two parties. Due to the conforming and abiding nature of this decision made by the expert that fact needs to be acknowledged that special attention has been paid on the selection criterion of this expert.
Expert determination is also defined as a process whereby an independent third party enters with the mutual consent in to the contract and serves as the expert over the issue resulting in dispute, the point argued by this definition is that the third party enters as an expert and not as an arbitrator or a judge and hereby either of the two parties cannot claim over the finality of the decision made by the expert.
Expert determination can be finally defined as a process whereby the disputing parties present their argument along with the proofs to a dispute resolution professional, this specialized independent expert is chosen on the basis of his qualifications in the particular field that pertains to that vey dispute, as discussed the an expert determination for an oil and gas dispute would be expected to be of a similar background who understands the basic requirements and technicalities of that field.
It has been recorded that the process of expert determination has taken its roots from the process of Early Neutral Evaluation. The basic discretion between the expert determination and the Early Neutral Evaluation is chiefly about the finality of the decision made by the expert. In the expert determination the disputing parties are bound to abide by the decision made by the expert but in the Early Neural…