English Law Essay
Explain the Different sources of english law and laws that organizations must comply with.
The English law is a merger that has been derived from a number of laws which are the common law, equity and the statute (Barkan, 2015). Common law was a combination of the local customs and hence the judge’s decision. Common law is very much dependent on the judge’s own interpretations of the community and area customs. Similarly equity such as common law are based on judicial decision, without any rulebook to be followed. The decision formulated is based on what the judge thinks is right and just according to him. As its rigidity has a repute to itself originally was very flexible on the basis of no written guidelines..
English Law Essay
Later on, a development from common law and equity was the statute law, which is originally believed to be in existence since Norman times King-in-Council but the first publication was considered as the Magna Carta 1215. Elaborating statute law is passed by the Queen-in-Parliament nowadays hence needs approval by the state’s legislative board. By which it is clear that it supersedes the common law and equity due to its implementation by the authority and proves itself superior to the custom and traditional decisions. A very distinct difference from the former two is that it is actually written.
English Law Essay
Since it is clear that UK is a member of the EC (European Community) appreciation is important, EC legislation is superlative to the English law, and it is must for the English law not to create any conflict with the Treaty of Rome regarding its implementation and enactment. Due to this reason EC law can be regarded as a source of law in England (Cheeseman, 2014) (Riches & Allen, 2011).
English Law Essay
Explain the role of government in law making and how statutory and common law is applied in the justice court
The advanced English legal framework is a result of more over than 900 years of its implementations in organizations, procedures and assortment of principles. The law hence mirroring the necessities of people who leave their own mark upon it as time passes by. The development of the English law has increased its pace from the end of the 18th century when Britain had just entered the industrialization phase.
English Law Essay
The constant and very significant fluctuation is a result of the 21st century being very fast and hard to keep up with. Therefore constant change means constant law modifications and alterations leaving a weight on organizations to promptly act according to the recent developments. This implies that businessmen need to be very well educated and informed of the day to day changes made in any type of law may that be health and safety issues for the employees or the consumers protection for the consumers, more importantly anything that can affect his business. Practically every aspect of his business will be liable to legal regulation and the law could simply always change.
English Law Essay
Statute law, regularly known as legislation, an Act of Parliament, is written law sanctioned by the approved legislative procedure of the state. From the reign of Edward I, individuals delivered petitions to the King which were either proclaimed to be the law or held to be further thought on. Under Edward III, two houses formed known as the Common and the Lords are where the Parliament started to meet, it was now in general the idea that the laws should be enacted by the King-in-Parliament.
English Law Essay
But still the Kings declared on their rules not until the Bill of Rights 1689 that the rule of the sole legislative expert of the King-in-Parliament was acknowledged. Formally, rulers do contain the authority to reject any rules or bills by the Parliament as did Queen Anne in 1707 regarding military setting in Scotland, but this veto is only to be used in extraordinary crisis.
English Law Essay
At a point when a statute is passed in due shape, as far as anyone has perfected, it must be deciphered and implemented. Hypothetically, this ought to be simple, for everyone just needs to apply the letter of the law. However if the nature of many other statutes were to be examined and deciphered many conflicts that would prove to be irrational against the Parliament.
English Law Essay
It is hence the judges responsibility to make sure of the genuine intention and meaning behind the law being proposed. Therefore, it was formerly the rule that remedial statutes should be interpreted broadly or generously, while penal statutes and statutes forcing taxation ought to be interpreted as prohibitively or barely as possible (Myers, 2014)
English Law Essay
The Curia Regis (King’s Council) was formed by a group of vital and capable men along with the assistance of the Norman lords. This gathering did various capacities: it went about as a primitive lawmaking body, performed regulatory assignments and practiced certain legal forces. The gatherings of the Curia Regis were of two kinds: intermittent congregations went to by the nobles and more incessant however littler gatherings of imperial authorities. These authorities started to spend significant time in specific sorts of work and offices were framed. This pattern in the long run prompted the advancement of courts to hear instances of a specific kind. The Normans practiced focal control by sending agents of the ruler from Westminster to all parts of the nation to determine the status of the neighborhood organization. At to start with, these illustrious officials played out various errands: they made records of land and riches, gathered assessments and arbitrated in question brought before them. Their legal powers bit by bit turned out to be more imperative than their different capacities. Initially these chiefs used to connect neighborhood laws into the hearing but in time numerous other traditions were incorporated which were supplanted by many tenets which travelled about through the nation and once back discussed all their experiences. A steady process which discarded the irrational ones and tolerating those which were applicable were then framed as an example of law throughout England. A common activity at precedent-based law was started with the issue of a writ which was bought from the workplaces of the Chancery, a branch of the Curia Regis under the control of the Chancellor. Various types of activity were secured by various writs. The procedural standards and sort of trial differed with the idea of the writ. It was basic that the right writ was picked, generally the inquirer would not be permitted to continue with his activity (de Silva, 2017).
English Law Essay
Evaluate the effectiveness of the legal system in terms of recent reforms and developments.
The most interesting changes brought about by the UK government’s reforms of the UK financial services regulatory structure pursuant to the Act are those related to the Financial Conduct Authority (FCA). Its creation is seen to be an opportunity to reset conduct standards of the financial services industry which have been under a spotlight since the beginning of the 2008 financial crisis. There seems to be a focus on requiring firms, from the boardroom to the point of sale and beyond, to put the well-being of their customers at the heart of how they run their businesses and to promote behaviour, attitudes and motivations about good conduct above anything else. The new powers the FCA has, such as banning financial products, publishing details of misleading financial promotions and publishing information about taking disciplinary actions, are expected to enable to the FCA to step in earlier, and act faster, when problems are identified that risk harming consumers or markets. Although the vision and ambition of these reforms is clear, it remains to be seen how the new regulators, and in particular the FCA (with its new enforcement powers), will in practice approach regulation of the UK’s banking and financial services industry once the Act and its new regulatory structure is in force.
English Law Essay
Provide a coherent and critical evaluation of the legal system and law, with evidence drawn from a range of different relevant examples to support judgments
English Law Essay
Advantages of common law
English Law Essay
Specificity. Common law expands on, clarifies and implements legislation. The wording of acts of parliament is often broad and generic, providing general instruction on the law but not how it should work in certain situations. The role of judges and common law is to examine specific facts for each case, interpret relevant legislation and administer the law in line with these findings. As one jurist put it, “common law puts meat on legislative bones”.
English Law Essay
Unforeseen cases. Similar to the point above about specifics, common law can also respond to cases, situations and facts that were not foreseen or anticipated by legislators. It is impossible for parliament to legislate for every possible problem, action or condition that might arise in society. Common law can examine and develop responses to real life situations.
English Law Essay
Consistency. The doctrine of precedent works effectively for the most part because it provides stability and consistency in the legal system. Parties involved in trials and hearings can understand that decisions made are based on precedent, rather than personal views or arbitrary judgement. Precedents tend to be developed by senior judges in higher courts, which lends them authority and experience.
English Law Essay
Flexibility. Common law provides us with consistency but it also allows for flexibility and change in law-making. Precedents can be challenged, set aside and replaced by new precedents. The courts provide ample opportunity for common law reform.
English Law Essay
Speed and efficiency. Common law is faster, more flexible and responsive than parliamentary law. Common law often reacts and responds more quickly to changing social values, community expectation and so on. Institutional law reform bodies or the parliament years to decide on the need for change; judges and courts can do it while reviewing one case. The courts can also achieve law reform faster because they are not bound by the political and procedural constraints of the legislative process.
English Law Essay
Political independence. Unlike their law-making counterparts in the parliaments, judges and courts are not dominated or controlled by party politics or ideology. Because of this, the courts can implement law reforms that might be controversial or unpopular – reforms that might affect or even sabotage the government’s chances for election if they were initiated in the parliament. Abortion, for example, has been permitted under common law in three States – but the parliaments in those States have refused to legislate on the matter.
English Law Essay
Disadvantages of common law
English Law Essay
Reactive, not proactive. Unlike the parliament, the courts can only change common law ex post facto(‘after the fact’). They cannot change the law of their own accord. Courts can only deal with cases which are brought before them. Laws and precedents may be obviously outdated and in need of reform – but until relevant criminal charges are laid or relevant civil action is initiated, there is not an opportunity for these laws and precedents to be changed.
English Law Essay
A secondary function. Creating legislation is the main function of parliament, however forming common law is not the main function of the courts. The courts exist primarily to administer justice and developing common law is a secondary outcome.
English Law Essay
Undemocratic law. Parliamentarians are elected by and responsible to the people – but judges are appointed by the court system. This fact leads to criticism of judges as being unaccountable to the people. Some believe judges make decisions that are inconsistent with community standards and values; they believe that common law is itself undemocratic. This point of view is often expressed in the media, particularly during debates about sentencing.
English Law Essay
Lack of review. Courts lack the personnel, time, resources and opportunity to fully consider the changes they make to common law. In the parliament, draft legislation will go through numerous stages of review, including inquiries, investigations, parliamentary committees, law reform bodies and consultation, before it is drafted and introduced. In contrast, a judge or panel of judges has minimal time and resources at their disposal when forming common law decisions.
English Law Essay
Easily overridden. Common law can be overridden at any time by legislation. The parliament is the supreme law-making body and common law is considered inferior to legislation made by the parliament. This may be a disadvantage of common law, however it is also a response to the point about common law being undemocratic. If the parliament considers that common law is problematic or does not reflect the views of the people, it can legislative to abolish or change it.
English Law Essay
Using specific examples illustrate how company, employment and contract law has a potential impact upon businesses.
- Advise the owner of the business on the steps they will need to take, and any issues or restrictions they should bear in mind, in creating and naming their company, what would be the potential impact on the business of not following the correct steps.
English Law Essay
The rule of law allows business to understand what is expected of them in their personal capacities but also sets forth rules for businesses so that they, too know what is expected of them in their dealings and transaction. In addition, it restrains government and others from infringing on property rights, should disputes arises, the rule of law provides a peace and predictable means by which those disputes can be resolved.
English Law Essay
The rule of law provides guidance and direction in every are of business. For example it provides a means to bring a complaint against another party to a neutral decision maker so that a decision can be made regarding the dispute. Because of rule of law system, businesses and employer and employees to file complaint in the proper court to commence legislation. or the parties in the disputes can try an alternative method of disputes resolution if they don’t wish to engaged in litigation. We know that we are permitted to do these things because rules of law system allows us to do them, we can expect some sort of resolution when we institute such proceeding.
English Law Essay
2 · Advise the employee about his rights in relation to employment with this firm and determine the potential impact on the business of his actions
English Law Essay
Employment law is designed to protect the rights of the employee and covers almost all aspects of the employer/employee relationship. It is essential for employers to comply with the various rules and regulations if they are to avoid costly employment tribunals and lawsuits.
English Law Essay
Broadly speaking, employment law covers the following areas of employment: employment contracts and conditions; the treatment of employees; employee pay and working hours; sickness absence and time off work; and business transfers and takeovers.
English Law Essay
Within these broad areas, employment law affects more specific issues such as: discipline and grievances; bullying and harassment; equal pay; maternity and parental rights; age discrimination; sex and sexual orientation discrimination; race discrimination; disability discrimination; discrimination due to marital or civil partnership status, gender, religion or belief and pregnancy or maternity; redundancy and dismissal; employment tribunals; data protection; and terms and conditions of employment.
English Law Essay
Environmental Legislation will impact business operation, Businesses have to find environmental and friendly ways of disposing of waste that will not contribute to pollution. They can be found negligible .
English Law Essay
Impacts the Health and Safety of staff employees and the public. Employees or the public can litigate for negligence if they can prof that their loss or damages was as a result of the business poor health practices. This will impact the business reputation (Goodwill) profit margin and less confidence from stakeholders in the business.
English Law Essay
3.A· Advise the buyer in regards to late delivery of goods and where goods are not as specified (use the Consumer Rights Act 2015), and the potential impact on the business
English Law Essay
The rights a consumer has when a trader supplies goods under contract (the notes on section 1 explain how a contract may be formed). These are in effect contractual rights and if they are breached it is therefore a breach of contract; the statutory remedies to which the consumer is entitled if these rights are breached: namely a right to reject the goods within an initial period, a right to repair or replacement and a subsequent right to a reduction in the price (keeping the goods) or to reject the goods for a refund (subject to deduction for use in some cases); that the statutory remedies do not prevent the consumer claiming other remedies from the trader where they are available according to general contract law (e.g. damages); and that the trader cannot limit or exclude liability for breaches of the above rights, in most cases.
English Law Essay
Currently, provisions relating to contracts to supply goods are contained within several different pieces of law. The SGA, the SGSA and the SGITA each contain provisions which apply, depending on the type of contract. Much of the legislation in place prior to the Act coming into force applies to recipients of goods (whether or not they are consumers), but some protections apply only to consumers.
English Law Essay
M2 - Differentiate and analyze the potential impacts of regulations, legislations and standards.
Legislation is the act or process of making or enacting laws. Government debates the matter periodically.
Regulation is a rule put i place by government or authority. It goes in details of the company Act. A rule or directives made and maintain by an authority or government. Regulation carry out specific piece of legislation (such as for the protection of environment). Regulation are enforced usually by a regulatory agency formed or mandated to carry out the purpose of a legislation.
English Law Essay
Standard are the concept, norm or principle establish by government and used generally as a example or model to compare or measure the quality or performance of a practice or procedures
English Law Essay
D1 - Provide a coherent and critical evaluation of the legal system and law, with evidence drawn from a range of different relevant examples to support judgments
The legal system comprises the law – produced by law-making bodies (legislatures and judiciary) – and the institutions, processes and personnel that contribute to the operation and enforcement of those laws. So for example we can say that the English legal system comprises: legislation and common law; courts; judiciary; legal professionals; police; prosecutors; juries; and mechanisms for providing access to justice. In effect, the legal ‘system’ describes the law and the machinery provided for adjudication and implementation.
English Law Essay
Legal traditions or ‘families’ of legal systems
Around the world there are different traditions in legal systems. As Tetley (1999) explains, a legal tradition reflects deep-rooted, historical attitudes about the nature of law, about the role of law in society and about the way law should be made, applied and studied. Two major ‘families’ of legal systems are common law and civil law systems.
English Law Essay
Civil law or continental legal systems
Civil law is the oldest surviving legal tradition in the world. It had its origin in Roman law and later developed in Continental Europe and around the world. A key distinguishing feature of civil law is that it is a ‘codified’ system. Jurisdictions with civil law systems, such as France, Germany and Japan, have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure and the appropriate punishment for each offence. These codes distinguish between different categories of law. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.
English Law Essay
Common law systems
The common law legal tradition has its roots in developments in England in the 11th century. In common law systems, legal principles are to be found in the decisions of judges adjudicating in individual cases. The common law is usually more detailed than civil law and common law systems operate on the basis of ‘binding precedent’ so that judges in a particular case must follow the decisions of judges in earlier similar cases (see Chapter 3). These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as Legal system and method yearbooks and law reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. The common law tradition of England was transported around the world to countries that were once part of the British Empire. There are common law systems in Australia, USA, Canada and New Zealand – all having connections with England (common law family).
English Law Essay
Other countries have a ‘mixed system’ that include some elements of the common law as well as some elements of civil law – for example parts of Africa, India and parts of the Far East.
English Law Essay
RE: P4 - Possible legal solutions for a range of business problems as detailed below:
- I) Explain the legal principle and advise the company if they have to pay their employee for the work they have carried out so far.
1 If an employee is owed wages, wages in lieu of notice, pay for untaken annual leave, pay for untaken statutory holidays, severance payment or other statutory/ contractual sums, he may, as a creditor, petition the Court of First Instance of the High Court for a bankruptcy order (where the insolvent employer is not a limited company) or a winding-up order (where the insolvent employer is a limited company). 2.2 Upon the making of a bankruptcy order or a winding-up order, the provisional trustee or provisional liquidator (who may be the Official Receiver or private sector insolvency practitioner) respectively will take immediate steps to recover and preserve the employer’s assets. The assets will normally be sold by the trustee or liquidator and the proceeds of sale, after deduction of the necessary fees and expenses, will be used to pay debts owed to the employer’s creditors. 2.3 If the employer is not a limited company, apart from the business assets of the firm, the personal assets of the sole proprietor or all partners of the business may be seized by the trustee and utilised to pay the creditors. 2.4 If the employer is a limited company, only the assets of the company may be recovered by the liquidator and used to pay the debts of the company. Usually, shareholders and directors of the company will not be personally liable for payment of the debts of the company except in certain circumstances like fraud or misfeasance by shareholders and directors of the company
English Law Essay
- II) Explain the legal position in these circumstances and Advise the Bank on how the company’s assets should be distributed to the creditors.
- Secured creditors with the benefit of a fixed charge, such as Donald Bank, are in a strong position, and if their security is sufficient to satisfy their debt in full, they need not prove in the liquidation at all.
- Donald Bank should realise the security, which in this case will cover £200,000 of the debt (this is because Big House Ltd’s premises have been valued at £200,000) and then prove in the liquidation for the remaining £50,000.
- As Donald Bank will need to prove £50,000 in the liquidation, this means for this part of the debt owed to them, their rank in the order of priority will fall to unsecured creditors.
- To conclude, it appears that Donald Bank can realise its security to recover £200,00 but will need to claim the outstanding £50,000 as an unsecured creditor.English Law Essay
P5 Provide justifications for the use of appropriate legal solutions
English Law Essay
- Using case law justify your suggested strategy for the limited company.
The explosive growth of limited liability companies over the past several years does not mean that such firms are desirable or efficient. Rather, the introduction of this new organizational form simply reflects that its proponents were more effective in encouraging the form than were its detractors in lobbying against it. However, this observation does not require the conclusion that such firms are undesirable and inefficient. At times, interest groups lobby for laws that are efficient from a societal perspective. These groups will do so as long as the private benefits to them of such lobbying outweigh the costs. Moreover, to the extent that lobbying produces inefficient rules relating to limited liability companies, the courts serve as an important antidote by providing an ex post balancing in which the interests of groups unrepresented in the original lobbying process are given an effective voice and a more sympathetic ear. Thus, while Saul Levmore undoubtedly is correct to describe the limited liability company as “more an unfortunate product of interest-group politics than a frontierexpanding innovation,”66 this prescient analysis applies only to the origins of the limited liability company, not to its future development. The limited liability company is a curious phenomenon. This Article argues that while its birth was controlled by the legislature, its future growth and development will be controlled by the courts.
English Law Essay
B. Using the relevant legislation justify your advice to Simon on distributing company assets.
- The basic order of priority of payment is as follows- Simon must pay people in this order:
- Secured Creditors with a fixed Charge (Donald Bank)
- Expenses of liquidation (Lauren’s expenses)
- Preferential creditors
- Secured creditors with a floating charge
- Unsecured/ordinary creditors
- Deferred creditors
- MembersEnglish Law Essay
- The expenses of the liquidation (including Simon’s costs and renumeration) are paid in priority to all other payments.
- If the company’s free assets are insuffienct to meet the liquidation expenses then assets subject to a floating charge can be used by virtue of Insolvency Act 1986, s 176 ZA (reversing Re Leyland Daf Ltd [2004] UKHL 9).
- Simon’s costs and expenses including her remuneration will be paid first out of the free assets of the company.English Law Essay
M3 Assess the positive and negative impacts of legal solutions to business problems
English Law Essay
- A limited company is where the owners of the company is not liable to any cost that the business may incur. One or more persons can form a business by signing and sending articles to the Registrar. Additionally one has to follow the set requirements of this act in relation to the registration. Because a limited company is a separate entity from its owner then that means it can be sued or it can sue.English Law Essay
- Capital in respect to a business is the amount of funds that is put into a business to start and operate the business.English Law Essay
- To raise capital simple means that a business may look to the public for source of funds. For example investors, issuing shares to the public etc.English Law Essay
- Base on the type of company that is formed (private or public) the law states that capital should be raised a certain way. A company may raise capital by issuing shares (general, preference) to the public or by borrowing loans from financial institutions or family members etc.English Law Essay
- Liquidation is when a company assets are turn into cash as so to pay off any debts.English Law Essay
- Business rescue can be define as “the temporary supervision of a business and the management of its affairs by business rescue practitioner.English Law Essay
D2 critically review and evaluate the use of appropriate legal solutions in comparison with alternative legal advice
English Law Essay
Legal information explains the law and the legal system in general terms. The information is not tailored to a specific case.
- Legal definitions: what the words mean
- Matrimonial property actions are civil claims that will divide the property obtained during a marriage between divorcing spouses.
- Procedural definitions, such as who the people are in court and what steps take place
- There are different reasons why you, and/or the other party may want to adjourn the application. Some of these are…
- How to find legislation, court rules and cases, as well as other online and print resources or workshops that explain the law
- This booklet explains the guidelines for child support.
- Providing samples of court forms and instructions; telling you if required sections of a form have been filled out
- I have marked the three places on this form where you have not yet filled in the required information.
Legal advice applies the law, including statute and case law and legal principles to a particular situation. It provides recommendations about what course of action would best suit the facts of the case and what the person wants to achieve.
English Law Essay
- Legal interpretations: how the statutes and case law apply in a specific case
- When we go over your list of assets I can explain which would be considered matrimonial property and which would not.
- Procedural recommendations, such as what type of application to make or which level of court to use
- At the next court appearance we should ask for an adjournment because…
- Research of legislation, court rules and cases; applying the law to the facts of a given situation
English Law Essay
- There are a number of cases that would support your claim of $X for damages for personal injuries.
- Filling out forms or telling you to put in a form, e.g. specific people against whom to file pleadings or types or amount of damages to seek
- In this section of the form we will ask for…
English Law Essay
RE - P6 Recommend legal solutions based upon a different country’s legal system and/or a different legal framework1
English Law Essay
- Advise the company of their legal rights to resolve the dispute at arbitration
Commercial Arbitration & Alternative Dispute Resolution
When two parties enter into a contract, there is always a possibility of a dispute, which sometimes arises despite of the best efforts made by both parties to avoid it. Arbitration is available to resolve these disputes between contracting parties as an alternative to traditional court litigation.
Arbitration can be a quicker and cheaper way of resolving disputes and rendering justice than traditional court litigation. In a commercial world, timely resolution of disputes is the essence of a good and efficient business. Businesses can’t afford to waste unnecessary time, money and energy in a dispute resolution which could more effectively be used in the promotion of business and increasing profitability.
English Law Essay
Litigation v. Arbitration
Arbitration has numerous advantages over the Litigation process. Some such advantages are set out below:
- Privacy – Litigation is a public process. It takes place in courts which are generally located in public premises. Arbitration, on the other hand, is a private process. Only persons connected with the dispute are permitted to be present during the arbitration proceedings.
- Simplicity of initiation of proceedings – The procedure for initiation, continuation and termination of court proceedings is prescribed by the legal system of every country. If any right of any person is violated, he can initiation legal proceedings against the violator under the appropriate laws of a country. For the initiation of arbitration proceedings the existence of an arbitration agreement is the only requirement.
- Less Formal and less inflexible –Proceedings before court are renowned for formality and detailed compliance with rules and procedure. In arbitration, parties can prescribe their own procedure in their arbitration agreement. If the parties have failed to prescribe any such procedure they can select the procedure prescribed by the rules of arbitration of an arbitration institution or organisation such as the UNCITRAL Model Law on Commercial Arbitration, the text of which is set out in Schedule 1 of the Arbitration Act 2010. The arbitration procedure so prescribed is quite informal and flexible.
- Selection of adjudicators – In litigation, parties to a dispute have no say in the selection of a judge. The judges are appointed by the State and the same Judge may not preside over the entire case from interlocutory applications to final determination at trial. In arbitration the parties can appoint any person as their arbitrator. The arbitrators so appointed by the parties continues with the case until the resolution of a dispute and, thus, providing a continuity to the proceedings.
- Choice of venue – In litigation, an aggrieved person has to attend a court where it is located and has no choice in the venue of litigation. In arbitration there is no fixed venue. Parties are given the right to decide the venue of arbitration, and they could also change the venue after the commencement of arbitration proceedings with the consent of the arbitral tribunal.
- More cost effective– It is an established fact worldwide that litigation involves very high costs. Arbitration can, by tailoring the process to the effective needs of the parties, be a more cost effective process.
- Avoid unnecessary bureaucracy and delay – Litigation is a time consuming process .It is bound by rules of court and “one size fits all” traditional approach. Arbitration can, with proper case management by the arbitrator and parties, resolve disputes in a shorter period of time.English Law Essay
Different Alternative Dispute Resolution Methods
Apart from arbitration, there are a number of other methods, equally effective and efficacious, in existence in the international commercial world for the resolution of disputes. These methods are not in substitution of arbitration; in fact, they may often be a prelude to arbitration. These methods can be tried first for the resolution of dispute and if these methods are unsuccessful, the dispute is ultimately referred to arbitration. Some such predominant methods are as follows:
English Law Essay
- ConciliationIn conciliation, the conciliator clarifies the issues in dispute between the parties. He tells them about the advantages and disadvantages of their respective cases. He tries to bring about an agreement between them upon mutually acceptable terms. He prepares or draws the agreement containing the accepted terms and gets it signed by the parties. In certain cases, the conciliator also signs the agreement so arrived at between the parties.
- Conciliation vs. mediationIn mediation the role of a mediator is to bring the parties together and make them understand each other’s point of view. The compromise solution to the dispute is achieved by the parties themselves. The role of a conciliator, on the other hand, is to himself draw up a reasonable and fair compromise between the parties and then to persuade them to agree to it. In effect the conciliator may make a recommendation of settlement to the parties. If the parties agree and “sign up” to that recommendation it becomes contractually binding on the parties. If the parties do not agree &/or sign up to the recommendation then the conciliation agreement entered into by the parties will determine the binding effect (if any) of such recommendation .Such agreement may contain a clause stating that either party may , within say 21 days , reject the recommendation and appeal it to arbitration
English Law Essay
- What is the difference between institutional and ad hoc arbitration
An institutional arbitration is one in which a specialised institution intervenes and takes on the role of administering the arbitration process. Each institution has its own set of rules which provide a framework for the arbitration, and its own form of administration to assist in the process.
Some common institutions are the London Court of International Arbitration (LCIA), the International Chamber of Commerce (ICC), the Dubai International Finance Centre (DIFC) and the Dubai International Arbitration Centre (DIAC). There are approximately 1200 institutions worldwide which offer arbitration services, and some will deal with a particular trade or industry. Care should be taken in the selection process as some institutions may act under rules which are not adequately drafted.
Often the contract between two parties will contain an arbitration clause which will designate a particular institution as the arbitration administrator. If institutional administrative charges are not a concern for the parties, this approach is usually preferred to less formal ‘ad hoc’ methods of arbitration.
An ad hoc arbitration is one which is not administered by an institution such as the ICC, LCIA, DIAC or DIFC. The parties will therefore have to determine all aspects of the arbitration themselves – for example, the number of arbitrators, appointing those arbitrators, the applicable law and the procedure for conducting the arbitration.
Provided the parties approach the arbitration with cooperation, ad hoc proceedings have the potential to be more flexible, faster and cheaper than institutional proceedings. The absence of administrative fees alone provides an excellent incentive to use the ad hoc procedure.
The arbitration agreement, whether reached before or after a dispute has arisen, may simply state that ‘disputes between parties will be arbitrated’. It is infinitely preferable at least to specify the place or ‘seat’ of the arbitration as well since this will have a significant impact on several vital issues such as the procedural laws governing the arbitration and the enforceability of the award. If the parties cannot agree on the detail all unresolved problems and questions relating to the implementation of the arbitration – for example, how the tribunal will be appointed or how the proceedings will be conducted – will be determined by the ‘seat’ or location of the arbitration. However, this approach will only work if the seat of the arbitration has an established arbitration law.
Ac hoc proceedings need not be kept entirely separate from institutional arbitration. Often, appointing a qualified arbitrator can lead to the parties agreeing to designate an institutional provider as the appointing authority. Additionally, the parties may decide to engage an institutional provider to administer the arbitration at any time.
English Law Essay
M4 Compare and contrast the effectiveness of these recommendations
References:
Barkan, S.M., Bintliff, B. and Whisner, M., 2015. Fundamentals of legal research.
Cheeseman, H.R. and Garvey, J.R., 2014. Business law. Pearson.
de Silva, C., 2017. Law for business students; Business law. The Law Teacher, pp.1-3.
Myers, J.S., 2014. Principles of Business Law (Book Review)
Neisbeth, s., 2016. legal solutions for different types of business.
Riches, S. and Allen, V., 2011. Keenan and Riches’ business law. Longman/Pearson Education.
