Describe about the Practical Guide to Litigation and Arbitration in the United Arab Emirates?
The alternative dispute resolution system is quite important in the present society of legal phenomena. Here, we are going to discuss various aspects of the alternative dispute resolution system, in this study various modes of alternative dispute resolution as well as its it’s relation with the concept of Acas, different process of the system, and some other prospects of the alternative dispute resolution is going to be elaborated
The term Acas stands for Advisory conciliation and arbitration service, under this concept the parties to the dispute appoints an advisory committee in relation to disposal of the dispute, in this committee a third party is appointed by the parties in dispute for that purpose the third party presents available points of negotiation based upon which the dispute may be resolved, the third party helps in defining the problems and issues of the dispute and initiate a common negotiation from both the parties, it covers the aspects of the process where both the parties can control the outcome from the procedure.
As it was previously indicated, arbitration alone is not the way of alternative dispute resolution. ADR may be in the following modes:
Negotiation: A non binding procedure in which discussions between the parties are intended without the intervention of any third party with a onject of arriving at a negotiated settlement of the dispute (Wunschheim, Tercier and Ajani, 2011).
Conciliation/mediation: A non binding procedure in which an impartial third party, the conciliator or mediator, assists the parties to a dispute in reaching a mutually satisfactory and agreed settlement of the dispute (Davidson, 2000).
Mediation arbitration: A procedure which combines, sequentially, conciliation/mediation and, where a dispute is not settled through conciliation/mediation within a period of time agreed in advance by the parties, arbitration.
Medola: a procedure in which, if the parties fail to reach agreement through mediation, a neutral person, who may be the original mediator or an arbitrator, will select between the final negotiated offers of the parties, such selection being binding on the parties (Rau et al., 2002).
Arbitration: A procedure in which the dispute is submitted to an arbitral tribunal which makes a decision or an award on the dispute that is binding on the parties (Ferrari and Kröll, 2011).
Mini trial: A non binding procedure in which the disputing parties are presented with summaries of their cases to enable them to assess the strengths, weaknesses and prospects of their case and then an opportunity to negotiate a settlement with the assistance of a neutral adviser (McLaren, 2006).
7: Arbitration in fast-track mode: A form of arbitration in which the arbitration procedure is rendered in a particularly short time and reduced cost (Palmer, 2008).
An alter native dispute resolution system brings both the parties to terms without damaging their good relation which had been before the rise or creation of the dispute.
The alternative dispute resolution saves unnecessary court expenses and gives a cheap remedy.
The alternative dispute resolution is bereft of corruption which is off and on found or apprehended in the judicial system.
The ADR is also free from prejudices since both the parties comes to terms mutually out of their free will without any fear of consequences of winning or failing or being defeated in the case before the court, even of the fear of the sword contempt which just like the sword of Damocles hang on the heads of the parties. In court system the litigants or even the advocates feel their position to be very low and never equals to that of the judge. But in alternative dispute resolution system there is no such inferiority or superiority complex works (Szalai, 2013).
The alternative dispute resolution system renders quicker justice. There is no complaint of justice delayed and justice denied (Gaillard, 2010).
The ADR process maintains confidentiality and is not open to public at large.
The ADR reserves the freedom of parties to withdraw from conciliation without prejudice to their legal position inter se at time during the procedure (Al Tamimi, 2003).
The alternative dispute resolution obviates the parties from seeking recourse to the judicial system.
The ADR is a very flexible and independent system free of statutory or custom ridden procedural law.
The ADR is based on good faith of both the parties and has no place for bad faith, malice, ill-will, deceit or any kind of fraud or fabrication which are generally found in the minds and conducts of litigants in Courts (Hanotiau and Schwartz, 2010).
Alternative dispute resolution system is faster than judicial system, it is economical instead of being expensive as in Court system, and it is final and binding settlement, just like a decree of court (Udell and Walsh, 1981).
The alternative dispute resolution system is apt to make a better future. It paves the way to future progress.
By conciliation:
In this context dispute does not mean an ordinary or trifling dispute, but it should concern a dispute which arises out of legal relationship whether contractual or not, such as dispute arising between husband and wife relating to matrimonial matters, or a retired relationship such as of Hindus, who take marriage relationship by sacrament (Tocqueville, Mansfield and Winthrop, 2000). The relationship between the parties must be legal; it may be contractual or otherwise.
A dispute relating to some legal relationship, as to real properties, intelligent property, family matters, breach of contracts or performance of some contracts, or arising out of some civil wrong as that of a tort, may be decided in either of three ways:
i) Through court,
ii) Through arbitration,
iii) Through conciliation,
The newly enacted statutes in relation to the arbitration and conciliation have brought a middle way of conciliation through the assistance of conciliation appointed under the provision of this act (Hall and McGuire, 2005).
A dispute can be settling down without approaching before the court of law by implementing conciliation process. Any dispute which is sought to be settled must be arisen from legal relation whether contractual or not. The parties themselves appoint a sole-conciliator or conciliator and a third conciliator, for the purpose of coming into a negotiated decision for settling down the dispute (Glenn, 2005).
The parties are entitled to adopt the conciliation proceedings without going in front of the court. Any dispute arose out of any legal relationship falls within the jurisdiction of the conciliation process (Thomas, 2007).
For the purpose of settling down a dispute among the parties by way of a conciliation process one party should take the initiative and send the other party or parties the invitation accordingly (Green and Turner, 2013). By virtue of that, if the party who receives the invitation gives his assent to the invitation then the conciliation procedure starts. If both the parties are agree then they may appoint a sole conciliator, or they may appoint separate conciliator and a third conciliator mutually to act as a presiding conciliator (Bevan, Hollebon and Passow, 2004).
For the purpose of appointment of conciliators the parties to the dispute may enlist the assistance of a preferable institution or individual, and specifically:
a request can be made to such institution by the parties to the dispute for recommendation of the suitable individuals as conciliators.
The appointment of such conciliators can be made by the institution with the prior consent of the parties.
In an arbitration procedure each party shall be treated as equal and all the parties must get the opportunity to represent their views and points in respect to the matter in dispute.
Parties to a dispute may agree upon a submission to be made in the arbitral proceedings, and this agreement shall bind all the parties regarding the decision taken in the arbitral procedure. If either of the party has any sought of issue regarding the decision of the arbitrator then that party must acknowledge it during the procedure, and thereafter the decision which shall be taken in the arbitration process will be conclusive (Noussia, 2014).
Conclusion:
After the above discussion it can be said that due to the overburden of the courts, alternative dispute resolution has become the very important process of law for obtaining justice. Now days court are not enough capable to dispose the matters in a rapid speed as there is a lot of burden relating to the pending cases upon the courts. In court proceedings the amount of expenses is also quite high in comparison, while alternative dispute resolution system not only gives speedy disposal of disputes but it is cheaper than court expenses as well.
In European perspective there are three main sources of laws which are legislations, customs and precedents. Judge made laws are known as precedents. When a contradiction arises between two or more statutes before the Ld. Court then the court has to intervene to resolve the contradiction among the statutes. By virtue of this interpretation the point of view as to that laws may change this is considered as judge made laws. At the time of deciding any dispute the court makes some observations and mention in the order or decree or judgment about such observations, and further applicability of that interpretation, these is known as precedential laws. These laws are made by the court of competent jurisdiction. While a statute or legislation is silent regarding any particular issue then the court clarify the applicability and the scope of the statute by making proper judgment. Precedents are very much comprehensive in nature as there may some conflict among the laws made by the legislative bodies but the laws framed by the judicial system are quite comprehensive and definite regarding its applicability. Precedents are the initiatives from the part of the judges of the Ld. Courts with competent jurisdiction.
One third of the entire population of the world, which is approximately 2.3 billion people, lives under the common law rule or in organism mixed along with civil law. Common law invented in the period of the Middle Ages in England, and since there was promulgated to the outposts of the British Empire, which includes India too, the United States Pakistan, Nigeria, Bangladesh, and all other regions apart from Quebec, Malaysia, Ghana, Australia, , Hong Kong, Singapore, , Ireland, Burma, Jamaica, Cyprus, Barbados, Zimbabwe, Cameroon, , Liberia, Namibia, Sierra Leone, Guyana, Botswana, , and Fiji (SynkovaÃŒÂ, 2013).
The “common law system” is a legal procedure that provides immense precedential credence to common law, in order that steady ideology is useful to parallel particulars yield similar ending. The corpse of earlier period common law fastens judges that create future conclusion, just like any supplementary law does, to make sure reliable treatment. In situations where the parties oppose on what the rule is, a common law court seems to earlier period precedential verdict of pertinent courts (Connolly, 2010). If a comparable dispute has been determined in the past, the court is generally bound to go after the analysis used in the former decision, this theory is known as stare decisis. If, on the other hand, the court discovers that the present dispute is primarily distinct from all earlier cases (“matter of first impression”), adjudicators have the power and responsibility to construct law by making precedent. After that, the fresh judgment becomes precedent, and will tie future courts (Cohen, 2009).
The main purpose of judge made laws are to solve contradictions among the legislations, all the inferior courts within the jurisdiction of a country have to follow the decision and observation made by the higher courts. Even the higher court itself used to follow the decisions given in any previous case into the future similar kind of cases. If the fundamental potential of the case differs from the earlier one then the court is not bound to follow the principals used in the previous case (Harding, 2013).
There are many advantages of the judge made laws, mainly, there are very less chances of proximity and contraventions among the existing laws or the laws in issue before the court, as these laws are framed by resolving contraventions among the laws, so chances of future contradiction is very less. Judges are empowered to provide adequate guidelines in respect of the matter in dispute, by virtue of that, new laws are framed as to their potential and applicability (Fitzpatrick, 2004).
Court precedents are one of main the sources of laws, where earlier period decisions generate new laws for adjudicators to pass on back to for direction in upcoming cases. Precedent is based on the rule of stare decisis et non quieta movere, further universally referred to as ‘stare decisis’, significance to “stand by decided matters” (Gaillard and Leleu-Knobil, 2010). An obligatory precedent is where earlier decisions have to be followed. This is able to from time to time lead to unfair decisions, which I will deal with when making discussion about the advantages and drawbacks of obligatory precedent. First it will be address how the procedure of court precedent works; it includes the hierarchical formation of the courts, stirring on to the advantages and weakness of utilization of the doctrine (Golan, 2004).
An obligatory precedent is formed whilst the particulars of a latter case are adequately similar to the particulars of a earlier case. The doctrine of precedent is frequently referred to as a inflexible doctrine. In the court ladder, each court is bound to earlier verdicts made by courts superior than them. At the extremely apex of the court hierarchy is the European Court of Justice, go behind by the House of Lords, which is measured to be the supreme court as various rule do not worry European Union law. Verdicts made by the House of Lords turn into binding on all other courts within the purview of the jurisdiction (Ware, 2001).
References:
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Atlas, N., Huber, S. and Trachte-Huber, E. (2000). Alternative dispute resolution. Chicago, Ill.: Section of Litigation, ABA.
Bevan, A., Hollebon, G. and Passow, S. (2004). Mediation in the workplace. Kingston upon Thames: Wolters Kluwer (UK).
Cohen, M. (2009). A guide to special education advocacy. London, UK: Jessica Kingsley Publishers.
Connolly, A. (2010). Cultural difference on trial. Farnham, England: Ashgate Pub.
Davidson, F. (2000). Arbitration. Edinburgh: W. Green.
Ferrari, F. and Kröll, S. (2011). Conflict of laws in international arbitration. Munich: Sellier.
Fitzpatrick, A. (2004). The judicial system. Mankato, Minn.: Creative Education.
Gaillard, E. (2010). Legal theory of international arbitration. Leiden: Martinus Nijhoff Publishers.
Gaillard, E. and Leleu-Knobil, N. (2010). The review of international arbitral awards. Huntington, N.Y.: Juris Publishing.
Glenn, H. (2005). On common laws. Oxford: Oxford University Press.
Golan, T. (2004). Laws of men and laws of nature. Cambridge, Mass.: Harvard University Press.
Green, S. and Turner, E. (2013). Policy Convergence in the UK and Germany. Hoboken: Taylor and Francis.
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