|
Enforcement of Dispute Resolution Outcomes
|
|
The Problem * The enforcement of the outcome is one of the most important issues in the area of dispute resolution. * The enforcement of the individual outcomes of the different variations of dispute resolution systems may be as different as the variations themselves. But they may also show similarities among each other. * Is the process of dispute resolution successful, a settlement between the parties will be developed. * The settlement may be a binding contract or a court decision. Litigation: Judgements * Has the dispute been brought into the courtroom it is the judge who makes a decision to settle the dispute. This procedure is also referred to as 'litigation'. There the judge develops a judgement. * Litigation usually is the final option for disputes, especially when alternative dispute resolution systems may not work or are unsuitable. * Court decisions are final, binding upon the parties and enforceable. * Civil procedure law offers different assistance mechanisms by courts and other enforcement authorities. * Parties of the lawsuit cannot file the claim again before court at a later date. * Some tools set by procedure law: garnishee proceedings, warrant of execution, warrant of delivery, attachment of earnings, charging order, judgment summons Arbitration: Arbitral Awards What is arbitration? * Arbitration is one form of dispute resolution and as the latter does it come in different forms, too: contractual arbitration, court-ordered arbitration and labour arbitration. * Arbitration is the traditional alternative to (international) litigation. * It shares common qualities with mediation. But unlike mediation is it an adjudicative process. The arbitrator acts like a judge imposing a solution to the parties. The parties thus do not create the resolution themselves. * Also unlike mediation does it exist within a legal framework. For example the Federal Arbitration Act of the US regulates the enforcement of arbitration clauses in contracts. Enforcement of arbitral awards: * Arbitral awards are binding in the same manner as court judgements. * They are final, subject to an action, which is admissable on very limited procedural grounds. * They moreover carry res judicata and can be enforced in summary proceedings. * In general they are easier to enforce than judgements. They are moreover the most easily to be enforced internationally of all outcomes of dispute resolution systems (so called 'arbitration paradox', see Gabrielle Kaufmann-Kohler, Thomas Schultz, "Online Dispute Resolution - Challenges for Contemporary Justice", 2004, p. 216.). * Arbitration paradox: Foreign judgements in Europe are enforced by the Brussels I Regulation or the Lugano Convention. The awards may be developed by non-authorised persons and thus outside the national judicial framework. But nevertheless another state more likely enforces the award than a court decision of foreign state. * Negotiation, mediation and non-binding arbitration are generally processes without binding outcomes. * Parties may hence ask the court for confirmation of the award. After confirmation it can be enforced in the same way as a judgement. The award would thus enter the record of the court. * International enforcement is possible in most jurisdictions. Most countries signed the - also among others The Netherlands and Germany. * But the arbitral award may not be confused with the arbitration clause. What shall be considered in the Arbitration clause? * Area of dispute? * Rules of procedure. Which law applies? * Applicable law of the contract? * Fast-track arbitration clause? * Assistance of an administrative body which has guidelines to control arbitration and to select arbitrators. They have experience and knowledge of typical problems and solutions. * Number, nationality, background and experience of arbitrators? * Place and language of arbitration. What language may witnesses speak? * Contractual sanctions? * (Best be) in writing and signed by all parties. Most national/international laws require a written form Mediation: Mediated Agreements * Mediated Agreements can be enforced in the same way as a contract. Online Dispute Resolution * Providers of Online Dispute Resolution in the field of arbitration may offer binding, non-binding or unilaterally binding arbitration. * Self-enforcement may be the most effective method to enforce online arbitrate awards - despite voluntary compliance. * An important aim is to take advantage of the enforcement paradox of arbitration ('arbitration paradox', see above 'Enforcement of arbitral awards'). * By court proceedings or built-in enforcement mechanisms. Literature * Sarah Rudolph Cole, Kristen M. Blankley, 'Arbitation', Chapter 20, pp. 331, 332, in Michael L. Moffit, Robert C. Bordone, “The Handbook of Dispute Resolution”, USA, 2005. * Eileen Carroll, Karl Mackie, "International Mediation - The Art of Business Diplomacy", 2nd Edition, 2006, Chapter 8, pp. 119 - 122. * Gabrielle Kaufmann-Kohler, Thomas Schultz, "Online Dispute Resolution - Challenges for Contemporary Justice", 2004, pp. 44 - 55, 138 - 145, 168, 209 - 233. * Mr. E. Schutte, Mr. J. Spierdijk, Dr. A.F.M. Brenninkmeijer, "Juridische aspecten van mediation", Den Haag, 2007, Chapters 2, 4 & 5. * Carrie Menkel-Meadow, "Dispute Processing and Conflict Resolution", 2005. * Nadja Alexander, "Global Trends in Mediation", 2nd Edition, 2006. See Also
|
| < Prev | Next > |
|---|
Main Menu
| Home |
| Articles |
| Search |
| Submit Article |
| Contact Us |
| Donate to Wikibin |
