Describe about the Business Law for Contract Measure Time.
Indicators related to enforcing contract measure time and cost which is incurred in resolving a commercial dispute through the local first instance court, and it also checks quality of judicial process index. It evaluates whether or not each economy adopts the good practices which help in promoting the efficiency and effectiveness of court system (The World Bank, n.d.).
This research paper is divided into two parts and in first part we discuss in brief the five indicators of enforcing contract, and benefit of these indicators for doing business. This part also contains the reflection of any two indicators on small and medium size business. The second part of the report states the process followed in this research, problem encountered while conducting this research.
From many years, the Doing Business indicators on enforcing contracts are measuring the time and cost which is incurred in resolving a commercial dispute through the local first instance court, but now doing business make an change in the methodology of these indicators and replace the indicator procedural complexity with a new indicator that is quality of judicial processes index. This indicator is introduced to check whether each economy adopts the good practices which help in promoting the efficiency and effectiveness of court system in the following four areas that is (The World Bank, n.d.):
Court structure and proceedings index: this indicator has five components that are:
Special commercial court, section or division is available or not.
Is there any simplified procedure to resolve small claims are available or not.
Pretrial attachment is available.
Which criteria are used to for the assignment of cases to judges
Evidentiary weight of testimony in case of women.
Case management index:
Time standards set up by regulations for key court events.
Performance measurement mechanism is available or not.
Pretrial conference.
Is there any electronic case management system is available for judges.
Is there any electronic case management system is available for lawyers.
Regulations which relate to adjournments and continuance of case.
3. Court Automation:
Is there any facility to file initial compliant in electronic mode?
Is there any facility to service initial compliant in electronic mode?
Payment of court fees through electronic mode.
Whether judgments of court are published or not.
Alternative Dispute Resolution:
Arbitration
Voluntary meditation or conciliation.
Efficient system for enforcing contract is necessary for sustainable growth and economic development of any country. Economic and social progress of any country is not possible without respecting the law of that country and efficient protection of the rights. It is necessary for well functioning judiciary that cases are resolved on time and accessible to general public. Economies which have efficient judiciary system and in which courts effectively fulfill their contractual obligations have more developed credit markets in compare to other economies and also have higher level of development. Small firms grow more rapidly in the economy with strong judiciary, and efficient judicial system will result in improvement of business climate, faster innovation, secure tax revenues, and it also attracts foreign direct investment.
A research was conducted in the provinces of Argentina and Brazil regarding efficiency of court, and it was found that firms located in provinces which have efficient court system have greater access to credit. One more research was conducted in Mexico which found that better court system result in larger and efficient firms.
An effective court system not only reduces the risk faced by firms but also increase the willingness of firms to invest, and firms in Brazil, Peru and Philippines state that they invest more if they had more confidence in their court system (The World Bank, n.d.; Kroeze, n.d.).
Court structure and proceedings: this index has five components which are described below:
Is there any section or special court or division is available which only hear cases related to commercial disputes. Score- 1.5 is given if answer is yes or 0 if answer is no.
Is there any simplified procedure or any fast track court which deals with small claims, and such claim include all civil cases. A score of 1 is assigned to the country if such court or procedure is established by the country, and additional score of 0.5 is also assigned if parties present themselves before such court or procedure.
Is there any facility is available for pretrial attachment of defendant movable assets in case plaintiff has feared that attachments may be moved or dissipated. A score of 1 is assigned if any such facility is available.
Assignment of cases to judges through competent court in random and automatic manner. A score of 1 is given if cases are assigned to judges in automated or randomly, and 0.5 if cases are assigned randomly but not automatically.
Women’s testimony carries same evidentiary weight as man, and if yes score of 1 is assigned and if no 0 is assigned.
Adding up all the above mentioned scores gives index for Court Structure and Proceedings (The World Bank, n.d.). The score of Australia regarding this index is 4.5 from 5.
It is necessary for small firms that disputes are resolved fairly and in speedy trials, because if these disputes take months or years to resolve then it is not possible for small firms to stay in the business or conduct the disputes because of their financial weakness. Because of long and expensive trials small and medium firms try to avoid trials and other litigation matters. There are many benefits of efficient court system, as efficient system removes the informality, increase the trade and improve credit access for these small and medium firms (Doing Business, 2014; OECD, n.d.).
Alternative Dispute Resolution: this index has six components which are described below:
Whether commercial disputes are submitted to arbitration except disputes related to public policy, bankruptcy, consumer rights, employment issues or intellectual property. If yes then 0.5 is assigned.
Whether commercial arbitration which is domestic in nature is governed by consolidated law, chapter or section. If yes then 0.5 is assigned.
Whether local courts assigned arbitration clause in more than 50% of cases. If yes then 0.5 is assigned.
Whether meditation or conciliation is recognized for solving the commercial disputes. If yes then 0.5 is assigned.
Whether meditation or conciliation is governed by consolidated law, chapter or section. If yes then 0.5 is assigned.
Whether there is any financial benefit for parties who opt for meditation or conciliation such as if party won the case then court filing fees is refund. If yes then 0.5 is assigned.
Adding up all the above mentioned scores gives index for Alternative Dispute Mechanism. The score of Australia regarding this index is 2.5 out of 3 (The World Bank, n.d.).
There are number of benefits for small and medium size business from ADR that is:
This research is conducted by focus on objective part of the topic, by finding the multitude information from different authentic sources, and by analyzing that information to reach the conclusion. This is an evaluation research and includes study and evaluation of data through a systematic process. In this paper, the research and information is stated in such away so that other person can easily understand the topic which was stated in this paper. In this first we describe the indicators of enforcing contract in brief, and then evaluate and discuss the details of this topic.
Following challenges are faced while conducting this research that is:
Conclusion:
In this paper, first we state the brief introduction of indicators of enforcing contract, and benefits of these indicators for small businesses and medium businesses. Later we discuss the impact of Court structure and proceedings index and alternate dispute resolution index on small and medium business. We also discuss that this research is conducted in systematic process and state the challenges faced while conducting this research.
At last, we conclude the report with brief conclusion that is it is necessary for economies that they conduct good practices related to efficient court system.
References:
The World Bank. Enforcing Contracts. Retrieved on 7th December 2016 from: https://www.doingbusiness.org/data/exploretopics/enforcing-contracts.
The World Bank. Why it Matters. Retrieved on 7th December 2016 from: https://www.doingbusiness.org/data/exploretopics/enforcing-contracts/why-matters.
The World Bank. What is Measured. Retrieved on 7th December 2016 from: https://www.doingbusiness.org/data/exploretopics/enforcing-contracts/what-measured.
The World Bank. Enforcing Contracts Methodology. Retrieved on 7th December 2016 from: https://www.doingbusiness.org/Methodology/Enforcing-Contracts.
The World Bank. Australia. Retrieved on 7th December 2016 from: https://www.doingbusiness.org/data/exploreeconomies/australia#enforcing-contracts.
Moore Clark Duvell & Rodgers, (2016). 5 ways small businesses benefit from alternative dispute resolution. Retrieved on 7th December 2016 from: https://www.mcdr-law.com/Articles/5-ways-small-businesses-benefit-from-alternative-dispute-resolution.shtml.
Tessier, R. (2005). Making Effective Use of Alternative Dispute Resolution For Small Businesses. Retrieved on 7th December 2016 from: https://www.mediate.com/articles/tessierr1.cfm.
Doing Business, (2014). Improving court efficiency: the Republic of Korea’s e-court experience. Retrieved on 7th December 2016 from: https://www.doingbusiness.org/reports/case-studies/2013/improving-court-efficiency.
Kroeze, J. M. The companies as business court as specialized court. Retrieved on 7th December 2016 from: https://www.oecd.org/daf/ca/corporategovernanceprinciples/37188740.pdf.
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