Disputes+resoliution+&+appeals


 * ‍ **** Disputes & Appeals **

Customer and seller benefit from open, clear and transparent purchasing regulations, procedures and enforcement policies. But when the application of provisions, however clear and well written, such as those found in the [|EU Procurement Directives] or the WB “ [|Master Procurement Documents] ” are interpreted differently by the customer and the vendor, it is important that a forum and procedure for resolution of the dispute be readily available. The method for resolution should be relatively informal and flexible enough to provide a review and settlement effort that is proportionate to the complexity of the claim that is being disputed. The customs "appeal" procedure is one such example. Officials responsible for making the initial decision, under tutelage of a designated oversight individual or board are required to cite established customs rules and proven product/vendor deficiencies. Similar requirements apply to procurement authorities responsible for decisons on the following actions:

Number of sources asked to bid EU Procurement Directives also permit procurement “appeals” whereby vendors may obtain immediate reply to complaints and a promise of prompt review and explanation of decisions rendered regarding duties, fees and product specifications during inspection. The World Trade Organisation ADR procedures and forum is available to particpants for consideration in disputes resolution.
 * Proposal evaluation results
 * Award and pricing decision, and
 * Payment disallowances

**// Definitions //** // “Appeal” according to the // Revised Kyoto Convention, //(as it pertains to decisions rendered by customs officials at time of entry) means the act by which a person who is directly affected by a decision or omission of the Customs authorities and who considers themselves to be aggrieved thereby seeks redress before a competent authority.//

// “Appeals” permitted by the EU Procurement Directives are requests for procurement or payment reviews of decisions involving inspection, acceptance and payment authorization. // The directive promises prompt review and reply. Failure to obtain satisfactory resolution of a party’s concern may result in the complaint ratcheting up to a dispute.

// A “claim” is the demand of vendor or buyer for the fulfillment of any outstanding obligation on the part of the other. Cross-border procurement claims are usually monetary or performance (product delivery). When the parties disagree on the validity or amount of the claim, a “dispute” arises. //

// “Disputes” are contractual disagreements between the parties to a procurement transaction. They may focus on licensing, data rights, warranty service, product specifications or delivery delays but usually involve payment. //

//“Disputes & Appeals Settlement” is the resolution of a claim.//

**// Benefits //**

Appeals & Claims are important trade facilitation mechanisms that should provide a predictable, transparent and trustworthy environment in which the private sector trader can challenge decisions or omissions made by government authorities without having to fear negative consequences. The customs appeal and the contract claims processes are important administrative methods for disputes resolution endorsed and facilitated by international bodies such as the United Nations Committee on International Trade Regulation and Legislation (UNCITRAL), the World Trade Organisation, the EC DBR Committee and the International Chamber of Commerce (ICC) in The Hague provide procedures and resources for resolution.

**// Problem //**

WTO Initiatives in __ Singapore __, __Doha__ and __ Geneva __ have consistently recognized the excessive costs and untimely delivery delays resulting from unsettled trade disputes. Vendor claims require an established, accessible forum for the quick resolution of disputes arising from: Decisions from contracting officials Contracting Officers decide remedy and penalty involving agreement terms and conditions. Customs authorities respond to appeals of their decisions on entry, duty and license. Payment officials must respond to claims brought by vendors for proper payment. The alternative to an accessible forum for disputes resolution is the court judicial system, an expensive and time consuming approach - [|Factors in Disputes Resolution.docx] **// ‍ //****// Solution methods //**
 * Decisions from customs authorities
 * Delays by Payment representatives

Alternative (to the formal judicial system) Disputes Resolution (ADR) is unlike traditional court cases in several ways. They are usually resolved faster, at less expense, with greater formality and in an atmosphere that is neutral for both parties. Cases brought under the EU Procurement Directives [|ADR website] are less formal in several ways:

The establishment of local and regionalised appeals and disputes resolution forums and a published procedure for disputes settlement have been recommended in the Revised Kyoto Convention, WTO Milestones and codified by UNCITRAL. Their recommendations foster transparency and improve predictability by publishing customs determination guidelines. The forums delineate objective criteria utilised by officialls before making their determinations and then holding their decisions to those published criterion alone. In any forum it is essential that decisions be accompanied by a written justification explaiing the rationale for a decision so that transparency in the proceedings can be demonstrated and public confidence maintained.. In many instances, published accountability by itself (in Step 1 below) is sufficient to ensure fair and impartial resolution. Unexplained decisions could progress to a second, third and fourth levels of appeals escalation: Decision making authority is required to clearly provide the reasons of the decision, omission or dismissal, in writing and referencing the published determination criterion, to ensure maximum transparency. Required response times and minimum standards for documentation further expedite appeals & disputes resolution. ‍  **// Links & References //** See the International Finance Corporation (IFC) " [|Enforcing Contracts] " [|__UNCITRAL__] is the recognized legal authority and repository for legal research in international legal matters of the United Nations. Its rules on alternate disputes resolution have provided the objective standard for third party arbitration of disputes settlement for more than 30 years. See also [|__UNCITRAL PUBLISHED RULES__]
 * Rulings are made by //panelists//, not judges. Panelists are drawn from a group of intellectual property experts situated throughout Europe.
 * Cases are conducted online. The correspondence between all parties occurs via email.
 * Cases are usually conducted in the language of the domain name holder but can be filed in any language officially recognised in the EU. Filing in another language must be approved by the panelist(s) chosen for the case and results in additional expense.
 * In order for an .eu domain name to be transferred to a complainant as the result of an ADR, the complainant must be eligible for an .eu name by residing or being located within the European Union.
 * 1) Right to request the reason(s) for a decision/omission;
 * 2) Right of an initial administrative appeal to the Customs authority;
 * 3) Right of further appeal to an authority independent of the Customs organisation, and;
 * 4) Right of appeal to an international and local judicial authority.