How Final Should Dispute Resolution Be Essay

Note that your students can find the answers to the even-numbered For Review questions in Appendix F at the end of the text. We repeat these answers here as a convenience to you.

Litigation is the process of engaging legal action in court for resolving a dispute. The court is then able to implement or determine one party’s rights or responsibilities. In construction industry litigation is not preferred to resolve disputes as it cost much more than alternative dispute resolution methods and also it takes more time than other methods but in case of Linklaters there was a disagreement between parties on

Alternative dispute resolution is by no means a recently adopted form of dispute resolution. Courts now yield a vast number alternative dispute resolution alternatives, with even some courts requiring that cases be taken to mediation before the court will allow the litigation process to begin. In many facets of industry, alternative dispute resolutions are much preferred alternatives to the litigation process. For example, the construction industry

One of the foundations of arbitration is that awards rendered are final and not subject to appeal before the courts. In this respect, Article 5 of the UNCITRAL Model Law provides for minimal intervention, and says, “In matters governed by this Law, no court shall intervene except where so provided in this Law“. As a result, the grounds upon which a court may set aside an award or refuse to recognize and enforce the same are limited. Article 34 of the Model Law and Article V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards provide the restrictive grounds for such relief.

Finally, based on common law, the principle of comity and equity may oblige the courts to recognize foreign arbitral award, regardless where the arbitration was seated. The US Courts

“The concept of procedural fairness forms the basis for a ground of judicial review under the common law and the ADJR Act, requiring that certain standards and procedures be observed throughout the decision making process. In subjecting an administrative decision to judicial review, a Court will be restricted from looking at the substance of the decision maker’s assessment of facts, and can only examine the process by which that decision was made”.

Nevertheless, certain categories of ADR have been named and understood to involve the use of particular means and methods to produce the desired end result. These procedures include: negotiation, mediation, arbitration, med-arb, early neutral evaluation, settlement conference and conciliation to name a few. However this essay will concentrate on mediation as a form of alternative dispute resolution.

For instance, a violation of arbitral tribunals and arbitrators’ impartiality’s requirement and obligation as well as the impartiality itself are commonly understood and litigated as a violation of procedural public policy. Connection with the arbitral proceedings to some extent clarifies that the concept of procedural public policy derives from one of the fundamental arbitral principles - due process. Nevertheless, it is argued that the concept of procedural public policy somewhat overlaps with Article V (1) (b) of the New York Convention, thus, the discussions on the question whether procedural public policy deals with something more than a breach of due process is present. In the authors point of view it would be illogical to restrict the

Despite the fact, that the idea behind the procedural public policy concerns only arbitration proceedings itself, still the concept has to be scrutinized. Reference to the arbitral proceeding makes is understandable that procedural public policy deducts from the principle of due process . Though, there exist affirmation whether procedural public policy overlaps with the Article 1 of the New York Convention or whether this constitutes more than any breach of due process should not be a breach of public policy. According to the authors point of view, it has not sense to restrict the due process only to cases, such as lack of proper notification or lack of arbitrators’ qualification. Failure to present facts of the should not automatically form a breach of due process and also breach of procedural public policy.

Cooley, J. W., & Lubet, S. (2003). Arbitration Advocacy (2nd ed.). Notre Dame, IN: National Institute for Trial Advocacy.

The court’s power to require the attendance of witnesses can often be very important to the proper resolution of a dispute. The right to a jury also may be very valuable to one or more litigants. Finally, the existence of an appeals process can be critical. There is not much a party can do about an arbitration award that is unfavorable. But if a judge makes a mistake the decision can be appealed to a higher court.

Disputes are a common occurrence when dealing with construction contracts, and can arise in a number of different areas. Some of the more common areas include; time for completion, quality of workmanship, payment, and contractual documentation. Section 13 in NZS3910:2013 sets out to resolve such disputes using the “Disputes Resolution Mechanism”, by attempting to fairly/equally resolve any dispute which is “not precluded by the previsions of 12.4, 12.6, 13.1.1 or 13.2” (NSZ3910:2013-13.1.2), whilst maintaining flexibility, and preservation of the disputants relationship. Section 13 of NZS 3910:2013 sets out to resolve any dispute/difference using a three step process, wherein after each stage if the dispute is not amicably resolved, the next step is taken.

Firstly, the choice of law applicable to the substance of the dispute which the parties have made can be either express or implied and if such choice took place the arbitrators have to apply it. Without any indications concerning choice of applicable law, an arbitral tribunal has to determine such law through the searching of proper

From this brief history of ADR provisions, it is easy to see the widespread acceptance of ADR in more recent times compared to the hostility that courts expressed toward it early on. The trend of acceptance spread, and in May of 1986, forty-five states had enacted statutes similar to the second Uniform Arbitration Act, enforcing agreements to arbitrate future disputes.

2(a). Are there any differences between the arguments of the English Court of Appeal and the Singapore High Court in determining the proper law to the arbitration agreement?