World is growing smaller day by day and with the help of technologies we are able to connect to people across the world more easily. Globalization is widely accepted around the world, through globalisation we are able to perform business transactions across the world. While doing business across the nations we come into contact with different people which results in communication. Cross culture communication plays a very important role in making business deals. Negotiation has become an important aspect of business transactions and cross culture negotiating styles are also not similar across the globe. Culture affects negotiating in many complex ways. As a person is said to be competence in making cross culture deals, depends on how well the person is able to interact and communicate with people from other cultures. For a successful intercultural communication, the important factor is that when a message is produced in one culture, it should be interpreted in the same manner in another culture. Failure in anticipation leads to culture obstacles.

Cross Culture Negotiation

When two people of different culture communicate, they rarely talk about the same subject matter, the meaning of their conversation is highly influenced by their culture. And most often misunderstandings, communication gaps or miscommunication takes place while negotiating because of different paths of logic, cross culture context.

For instance while communicating through your Japanese client, he says “that’s difficult” for you it may mean that you can negotiate more regarding the deal. On the other hand he may mean that he does not agree to the deal and is rejecting it. 

There is even need for the change of basic behaviour pattern while dealing with a person from another culture, because the negotiating style which is considered as highly effective in your domestic area, may be considered inappropriate in other cultures. For achieving success in cross culture negotiations one must understand the others and their culture. A party must understand what one wants from this negotiation and can help to turn negotiation deal into a win – win deal for both the parties.

For instance when Mc Donald’s came to India for setting up its business it had to change its menu according to the culture in India as in its burger they used to serve beef and according to Indian Culture beef isn’t eaten by majority Indians, so it shifted from beef to potatoes which is eaten by majority Indians to capture the large Indian market and establish its brand. If the Company had not changed the menu then it would be utter failure and would cause huge losses to Mc Donald’s. So understanding the Culture before setting up a business in foreign state is important. 

Sometimes Culture barriers may also create difficulty in understanding the behavioural patterns.

For instance while in India hiring of relatives is considered to be good, and securing of trustworthy and long term employees while American may view this as a practice of nepotism.

For efficient and effective communication for handling international business we should follow some simple rules.

·        Before interaction with your foreign partner try to have knowledge about their culture and the individual.

·        Be conscious about your own culture, and how people may think or interpret your culture.

·        Always have respect for the other cultures.

·        Try to find a solution for the cultural gap that may benefit you as well as your foreign partner.

 Therefore we can understand that cross cultural differences affect the business transactions. And due to these cultural differences business transactions are affected and can cause huge loss to the parties. And many times cross- cultural differences can become a source of conflict at initial or later stage, so to prevent such conflicts parties can use various methods of alternate dispute resolution such as deal mediation.

Deal Mediation:

Deal mediation is a type of dispute resolution process in which a mediator is appointed who helps both the parties to build their relationships successfully. The mediator is serves as a neutral cross – culture assistant. The mediator helps them to bridge gaps of culture and legal differences which often become a source of conflict between parties. By appointment of mediator it eliminates the miscommunication and builds a durable contractual relationship. Mediation is a process in which the mediator, who is a qualified attorney and is neutral, helps the parties to reach a settlement through which both the parties are satisfied. As it creates a win- win situation for both sides. Mediation can never be binding onto parties. And both the parties can equally bear the cost of mediation.

Advantages of Cross- Culture Mediation:

·        It is economic in nature, cooperative, interest based approach which creates a win-win situation for both the parties.

·        Helps to manage renegotiating before closing the final deal.

·        Can benefit parities in understanding the behaviour of each other.

·        It is a fair process.

·        Managing the intergroup conflicts and Ethical problems.

·        Retain business relationships.

Conclusion:

Understanding Cross- Culture is a complex task. With the help of the Cross-Culture mediation it makes it easier for the parties to deal with the foreign clients. And this method of dispute resolution eliminates all the obstacles which one may face during the Cross- Culture Negotiations.

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Conciliation:

Conciliation is a process which settle disputes without litigants. In this process in which individual person or persons are appointed by the parties with mutual consent by an agreement to arise upon a settlement of their dispute. It is a process of persuading parties to reach a settlement. Essential elements of conciliation are- confidence and trust. Conciliation is considered as an effective tool of ADR as it is often used for domestic as well as international dispute settlement. Conciliation is considered as an effective mechanism of the alternative dispute resolution because there is no need of formal agreement between the parties. Like in the other methods of ADR formal agreement is necessary for carrying out the proceedings. Moreover conciliation is chosen by many parties because of the privacy been provided by the act[1] i.e. if the amicable settlement in conciliation could not be reached then the evidence leaded, the proposals made to the parties cannot be disclosed in any other proceedings.

Conciliation is basically a non – binding procedure in which an impartial third party is appointed who assists the parties in reaching a mutual agreement for the settlement of their dispute. For the process of conciliation it is important that the parties must be brought together face to face so they can resolve dispute with the help of the conciliator and agree to a settlement. One important principle that why conciliation can be a preferred choice of the parties because in the other proceedings a presiding authority gives the judgement which is binding to the parties on the other hand in conciliation parties themselves arrive at a settlement through mutual agreement, conciliator just helps them in reaching the settlement, and does not act as a dictator. 

Principles of Conciliation:

1.   Impartial and Independence in nature:

According to the Section 67(1)[2] of the arbitration and conciliation act, a conciliator should be impartial and shall assist the parties in an independent manner and help the parties to reach the amicable settlement of their disputes.

2.    Just and Fair:

It is stated by the Section 67(2)[3] of the act that a conciliator should be guided by the principles of justice, fairness, and objectivity and should give equal importance to other major factors like the rights of the parties, circumstances and reasons due to which the dispute arose, obligations of the parties and their business relations.

3.    Confidential

The conciliator can only disclose the necessary information to the other party in regard for the settlement of the dispute. Other than that any information provided by any party from the two should be kept confidential by the conciliator. The parties and the conciliator are bound to keep all the information related to the conciliation proceeding confidential. This clause is mentioned in the Section 70[4] of the act.

 Disclosure of the Information:

When a conciliator receives any fact regarding the dispute from one of the party, he should disclose the fact to the other party which might help the conciliator to know the appropriate explanation from the other regarding same. This provision is mentioned in the Section 70 of the act.

Co-operation with the conciliator:

According to the Section 71[5] of the act parties should co-operate with the conciliator and shall act in good faith. The parties should comply with the terms conciliator asks them to like submitting of evidences, documents and attending meetings.

Procedure of Conciliation:

1.   Commencement of Conciliation proceedings:

Conciliators can be appointed by the parties on a mutual agreement or can appoint one conciliator each and the third conciliator can be appointed by mutual agreement. While appointing conciliator it should be noted that the person has the required knowledge in the field in which the dispute has arisen. He can be an expert on the subject matter of the dispute. According to section 62[6] of the act, the conciliation proceedings are initiated by one party by sending a written invitation to conciliate. The invitation should contain the clear information about the dispute aroused. And the conciliation proceedings are started when the other party accepts the invitation. If the other party rejects the invitation then the proceedings does not take place. If the party who sends the invitation does not receive a reply by the other party within 30 days from the date he has sent the invitation or in the time mentioned in the invitation the he can elect to treat this as rejection and inform other party according in writing.

2.   Submission of Statement to Conciliator:

In the Section 65[7] of the Act, it is stated that after the appointment of the conciliator, the conciliator may ask both the parties to submit a written document stating the basic facts of the disputes and the issues of each party, should submit the statements to the conciliator. The conciliator may further ask each party ton submit necessary evidence in support and any other additional information. The copies of these should be sent to the other parties as well.

3.  Conduct of Conciliation Proceedings:

According to sections 67(3)[8] and 69(1)[9] of the act, the conciliator may invite parties to meet him together or separately and may communicate with the parties orally or in writing. There are no hard and fast rules for the conciliator to conduct the proceedings of conciliation in a particular manner, he/ she can conduct them in any manner he/she considers appropriate. But he should take important factors into consideration like the wishes of the parties, circumstances of the disputes, and the party’s request of speedy proceedings should be heard.

4.   Administrative Assistance:

Section 68[10] of the act talks about the administrative assistance in which the parties with the conciliator may approach an institution or a person for the administrative assistance.

Advantages of conciliation as a dispute mechanism:

·    Conciliation is cost effective as compared to the other methods like litigation and arbitration as the conciliator generally prevents cost multiplication of actual cost.

·   The conciliator acts according to the whims and fancies of the parties including the need for speedy proceedings. This makes conciliation an excellent method of dispute settlement. Moreover the conciliator concludes the proceedings in a short span of time rather than dragging them for years and years.  

·   Conciliation is considered as a flexible process as the time, venue etc. can be managed according to the ease of parties.

·   Parties can withdraw from conciliation process at any stage of the process.[11]

·        Conciliation promotes satisfaction and harmony between the parties as both the parties agree to the proposal and creates a win – win situation for both parties which help them to retain their relations in the future. Unlike in the process of litigation and arbitration there is win- lose situation and the parties do not continue their relations in the future.

·  Unlike litigation conciliation is a process which is confidential in nature as it can be done behind a closed door rather than in an open court. Confidentiality in conciliation proceeding is a statutory guarantee.[12]

·   The settlement agreement drawn up in conciliation proceedings has the same status and effect as if it is an arbitral award.[13] The settlement agreement in conciliation is executable as a decree of the civil court.[14]

Why conciliation method is not popular in India?

India lacks a system of federal courts and state courts, the courts established by the State Government administer both the state and central laws. They administer cases related to Concurrent list (list III) and Union list (list I) in the VII schedule of the Constitution. This creates an obligation on the central government to meet the expenses of the state courts of up to 50 percent. Whenever a bill is passed in the parliament there is no ‘Judicial impact assessment’ attached to the bill, which states that how many civil and criminal cases will be increased if the bill is passed and becomes a law. However we all know that the government cannot establish all the needed courts in a reasonable span of time. Alternative reasons therefore must be found necessarily, which reduces the burden of the judiciaries. As it is said that necessity become the mother of inventions in many counties. In the western world the methods of ADR are widely used and appreciated. Let us take the example of Lok Adalats in our country. When 15 years ago the institution of lok adalats were established there was a lot of oppression from the bar and judiciary. Soon it was discovered that some special kind of cases are best suited for settlement through the Lok Adalats only. Ultimately, Lok Adalats have today have been accepted. Around the globe when the disputes arise for the money or property related matters, people adopt conciliation produces for the settlements. If such methods can be successful in other countries then it can be successful in India too. Moreover if there will be a reduction in the number of civil cases as they can be solved through the process like conciliation, Indian courts will be able to focus to the criminal matters as they need to go through the process of litigation.

Conclusion:

Litigation is not the only method of resolving disputes. We need to re-look and adopt various methods of dispute resolving. As conciliation can be a benefit for the parties who have a lack of time and financial resources.  Conciliation can be considered as a boon provided to the parties who can arrive at a settlement with their aspirations.

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International conventions are the most frequent agreements between two nations regarding any issue or for citing international standards. This paper gives you a basic knowledge of what is a treaty or an agreement and why is there need to make such agreements between the nations. It also gives you the glimpse of three conventions i.e. Vienna convention and the other two which are ratified by India. Later the paper mentions about what is the significance of the international treaties in international laws? It also tells the relevance of some constitutional articles why the parliament is involved in ratification of treaties.

What is a treaty?

A treaty is a formal, written agreement between two or more states which has a binding effect of international law. There are bilateral treaties which is between two nations or multilateral between two or more states. Treaties are being formed due to several reasons it can be because of disputes between two or nations, so a treaty can be for ratified by the nations to maintain peace or harmony and to agree on the similar terms to settle the dispute. A treaty can signed to reduce the depletion of natural resources or for the establishment of science & innovation based public and private partnerships. So there can be several motives of signing a treaty.

Need for international treaties

 As we know globalisation plays a very important role in today’s era. The world is becoming smaller day by day. And the problems are becoming global day by day. So global problems need global solutions. No matter how much powerful a nation is it cannot solve the global problems alone. In other words international law act as a mechanism between two or more nations to corroborate peace, harmony, stability, order in international relations and security of the sovereign state. Despite being known for maintaining peace &security among nations there was no codified law for signing of treaties. It took a long time in making a codified law for making treaties. 

Vienna Convention on the Law of Treaties, 1969

It is a UN agreement which has a set rules and regulations that binds every treaty which is being formulated between two sovereign states. It provides legal framework for the nations to abide at the time of peace. The framework includes directives on application, conclusion, interpretation, amendment, entry into force treaties and modification. It also states regulations on validity, termination and suspension of different treaties. By this Vienna convention UN enforces its charter onto nations to live in peace and harmony and to maintain international security. Convention may still represent a progressive development of international laws, not supported by a large number of states. Article 26 of the convention says that every treaty signed by a country is binding on it and its obligations imposed by the treaties should be done with good faith.

Few treaties ratified by India

FTA agreement:

 FTA treaty or FTA agreement is multinational agreement according to the international law, it is an agreement which promotes trade across nations with no trade barriers or less trade barriers encouraging international trade however now the agreement not only include trade of goods but also trade of services and investment. The FTA agreement not only facilitates the free trade between nations but also helps under developed nations and developing nations to become more prospers. 

Few advantages of FTA

• More dynamic business climate – In the absence of free trade the countries protected their local business which made them stagnant and non – competitive but with the introduction of free trade the local business of nations become more competitive and  motivated to be able to grow globally.
• Foreign direct investments- FDI’s promote local business as foreign investors invest in the domestic market so it boost our economies and help domestic business to grow internationally.
• Sharing resources and valuable information- as we know international business are expert in developing resources , so it would help domestic companies to access of the information and methods to work efficiently and effectively.
• Technology advancement- if domestic companies lack in technologies then the international companies will help the locals in accessing the latest technologies which will make the domestic business grow globally.

Few disadvantages of FTA

• Outsourcing- The job outsourcing has been a major problem instead of being a advantage, as there is cheap labour available in other counties it affects the local people who are jobless.
• Theft of IP – Every country does not have protected patent laws and other country takes advantage and as a result their ideas are often stolen.
• Poor working conditions- Every country does not have proper labour laws so the many times children and women are being harassed.

Solution

Protection of trade is not the permanent solution of the problems faced. As increasing the tariffs and subsides can be a solution for the short term but not for the long term.  A better way is to make some rules within trade agreements that are the solutions to all the cons of the trade agreement.  Countries can insist that foreign companies build local factories as part of the agreement. They can insist to train their workers and make share technology.

Shimla Agreement, 1972

The Shimla agreement signed between India and Pakistan on 2 July 1972 was more than just an agreement, it was set of guidelines which India and Pakistan adhere to maintaining the peaceful relations with India. The agreement was signed the Prime mister Indira Gandhi of India and President Zulfikar Ali Bhutto of Pakistan.

The agreements says that-

• The UN charter will govern the relations of the two nations.
• Both the countries shall resolve all the issues between them by mutual and peaceful means. And all the rest of the issues between the nations will be solved through bilateral agreements and by unilateral. 
• They also agreed to maintain respect for each other’s territorial integrity, sovereignty and non – interference in each other’s internal affairs on the basis of equality, and mutual benefit. 
• Both the nations will take steps to resume communication, to promote travel facility, exchange in field of science and technology will be promoted.
• In order to maintain durable peace forces of both the nations will be withdrawn from their side of international border.
• In Jammu and Kashmir, the line of control shall be respected by both the nations and no one can unilaterally seek to alter it. It shall be resolved with mutual or unilateral agreements.

Despite having the legal agreement Pakistan has continually failed to be committed to the agreement. They have continually terrorised India by their terror attacks, which has always been an issue for India. However we know that using terror to achieve ones goals is not a rational behaviour. And the matter of article370 was an internal matter of India to promote socio- economic development and good governance. And India has always been committed to the agreement while Pakistan has been failed to comply with it. Moreover terrorism is the act which no democracy accepts.

Significance of international conventions under international law:

The international agreements set ground rules for different nations in framing laws and policies on various subjects. They also lay down guidelines for Indian judicial system to fill gaps in the matter where there are no clear laws in Indian legal system. Like on case vishaka v. state of Rajasthan where vishaka and other women filed an PIL against Rajasthan and the central government to enforce fundamental rights in articles 14, 19 &21 of the constitution of India. The petition was filed after a social worker was gang raped for stopping a child marriage. Later the SC took in the consideration of international laws and guarantee of gender equality, right to work with human dignity in article 14, 19, &21 of constitution of India. Without domestic law involving the field to plan successful measures to check the abhorrence of evil of sexual harassment against working ladies at all work puts, the substance of International Conventions and standards are noteworthy with the end goal of translation of the assurance of gender equality, right to work with Human nobility in Articles 14, 15, 19(1) (g) and 21 of the Constitution and the protections against sexual harassment verifiable in that. Any international treaty showing not conflicting with the key rights and in congruity with its spirit must be added something extra to those arrangements to develop the significance and substance thereof, to advance the object of the Constitutional assurance. International conventions help the country to settle disputes with the foreign states like Shimla agreement, 1972 and bilateral agreement with Bangladesh of sharing Ganges water are few examples of the same.

Conclusion:

As mentioned international treaties play a significant role in cultivating global participation in different fields influencing the lives of individuals and advancing harmony and peace.  The Indian Constitution contains provisos with that impact in article 51(c). The question however remains that in any case, is that who chooses which settlement is useful for the nation and which authority is skilled to settle on the equivalent. Under the Indian Constitution and as asserted by different legal proclamations it is the Indian Parliament which is preeminent in choosing such issues. Article 253 of the Indian Constitution is sure about that. Notwithstanding, the Indian Parliament has not made any law so far controlling the methodology for the Indian government to go into universal or two-sided arrangements.  In the absence of same under article 73 it is the executive which is consenting to global arrangements now and again without bringing the parliament into certainty. While it may not be pragmatic to have the Parliament to favour all agreements. It will be suitable to take a fair view regarding the matter and have an enactment engaging the official to sign arrangements subject to specific conditions. The Parliament may command particular kinds of conventions to be endorsed by it preceding its marking by the executive. Particular sorts of treaties then again might be left totally to the discretion of the executive.

Author: Mudita Dubey, Legal Intern at Legal Desire (June 2020)

Law Student pursuing BBA-LLB (H) from amity university, Rajasthan. My interest is corporate laws.

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