102
parties. Whether a choice of forum is possible, and what requirements a
valid agreement must fulfil, are questions that are legally complex and need
to be decided based on applicable law.
Arbitration
As an alternative to legal proceedings, it is often advisable to agree on a
court of arbitration to resolve cases of dispute. This has various benefits
compared with legal proceedings. For example, the parties involved can
appoint the arbitrator themselves, to ensure the necessary expertise of the
arbitration committee. The arbitrators need not be lawyers, but can be
other experts, especially IT experts. Especially in the case of material that
state courts very rarely deal with, and where the judge lacks the
professional experience, a court of arbitration is a meaningful alternative.
One benefit of the court of arbitration compared with a legal venue is that
the superior ability to assert the decision of the court of arbitration
internationally. The New York Convention, which 145 countries have
ratified, guarantees that the decision reached by the court of arbitration is
recognised and can be enforced in all of the participating countries.
Compared to this, the international enforceability of a decision by a national
court is far more restricted − at least outside of the EU.
Depending on the point of view, there are also disadvantage of the court of
arbitration proceedings compared with normal court proceedings due to the
fact that the proceedings cannot be escalated. Unless the parties agree to
the contrary, no appeals are possible against the decision of a court of
arbitration.
For a court of arbitration to be responsible for the decision, the parties to
the contract need to conclude an arbitration agreement. This can be
concluded in advance, but also after the dispute arises. The applicable
national law may contain special requirements in order to constitute a valid
arbitration agreement.
45
Enforcement of legal decisions
A legal decision is of limited practical value if it cannot be enforced against
the opposing party; that is executed against that party's will. In this case it
would be a matter of discretion for the opposing party to follow a negative
court decision.
45
An expanded version of this chapter can be found under
