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Questions:

i) Evaluate the purpose of Alternative Dispute Resolution (ADR) and, with particular reference to the services provided by Acas, assess to what extent it is a successful means of resolving disputes outside the formal judicial process

(ii) Explain why European Union law takes precedence over domestic law in the United Kingdom.
 
 

Answers:

1. Alternative Dispute Resolution:

Introduction:

In present time alternative dispute resolution has become very much essential in the legal phenomena, especially for the commercial communities. Courts are overstrained in relation to the huge number of cases pending. Judicial system was the only way to get justice in ancient period even now days judicial system has the superiority for the purpose of providing justice but whilst settling any dispute among the parties to the dispute with their free consent, alternative dispute resolution comes into action. It is not possible for the court of laws to provide rapid speed remedy in every case, as the number of cases pending before the court is huge in quantity. The court proceedings are quite expensive in comparison as well as time consuming but if there is any alternative way of having settlement then it would be better and beneficiary for the persons who wants the dispute to be settled. In today’s society alternative dispute resolution plays a remarkable part as to resolve the disputes in a rapid speed (Ware, 2001).

Various modes of alternative dispute resolution:

Implementation of alternative dispute resolution may be done in various ways; few of the important modes of alternative dispute resolution are as follows:

Negotiation: The main thing depending upon which alternative dispute resolution can be soughed is negotiation from the part of both the parties. Negotiation is a way which puts the parties to the dispute under a common table for the purpose of resolving the dispute. In this way both the parties to the dispute by sacrificing a bit obtains a great success and they also avoids lengthy and expensive court procedures (Tracy, 2013). 

Conciliation: This is a process in which a third party appointed to resolve the dispute or each of the party to the dispute may appoint individual conciliators and a common third party conciliator in respect to the alternative resolution to solve the matter in dispute (Taylor, 2005).

Mediation: It is a process of alternative dispute resolution, if the parties to the dispute could not come into a negotiated settlement then after a certain period of time they may appoint a mediator to solve the dispute, here both the parties have to agree that they shall be binding themselves by way of a written agreement, and they will admire and follow the decree made by the appointed mediator (Belavkin and Guță, 2008). 

Medola: Here, if the parties to a dispute has not came to a settlement by way of a mediator then the original mediator may approach the parties of the dispute with various negotiating options available to solve the dispute (Isaac and Macintyre, 2004). 

Intercession: In this procedure the dispute is to be submitted to the concern arbitral tribunal and the decree given by them in relation to settle the dispute shall binding all the concern parties of that dispute (Barnes, 2007). 

Diminutive trials: In this process both the parties shall get the opportunity to show their strengths and weaknesses, depending upon which the mediator shall come into the conclusion for the purpose of resolving the dispute (Isa Kamari, 2010). 

Quick disposal arbitration: In this process of arbitration the procedure is conducted in a minimum time with less cost.

 

Benefits of alternative dispute resolution:

In a system of alternative dispute resolution all the parties to the dispute are compelled under a roof of understanding for the purpose of resolving the dispute without causing damage to their good relation which had been present earlier then the arrival of the dispute (Singh, 2008).

In alternative dispute resolution remedies are provided without any unnecessary expenses and in a very lesser cost.

The probability of corruption in alternative dispute resolution is quite low, which eventually apprehended in some part of the judicial proceedings.

Both the parties of a dispute comes in a decision in respect of resolving the dispute with their mutual consent by way of alternative dispute resolution, here the parties to the dispute are not apprehended of losing the case, as the final decision is taken with the consent of both the parties.

In a judicial proceeding, litigants sometime feels inferiority even the Advocates feels quite a diminished position during trial but in a process of alternative dispute resolution nothing as such is noticeable as both the parties to the dispute conducts the procedure by virtue of their free consent.

Alternative dispute resolution process provides justice in a lesser period of time in comparison to the traditional judicial proceedings, and late remedy is not permissible in this procedure known as alternative dispute resolution.

Confidentiality of matters is maintained by the alternative dispute resolution system and it is not disclosed to the public in general.

Alternative dispute resolution system makes sure the desirability of the parties in respect of the dispute especially when they move towards to the courts for justice.

The system of alternative dispute resolution is very much flexible in nature and it free from customary as well as the ancient way of procedures which are very lengthy and costly as well.

The basic requirement of alternative dispute resolution is good faith of all the concern parties to the dispute, and there is no scope of any mollified intentions from any of the parties to the dispute, but is noticeable in the mind of the litigants in quite a few times during the judicial procedure.

Though the alternative dispute resolution differs from many aspects of the court proceedings, like quick remedy, easier procedure, cost effective, but the final and binding settlement decision is similar to a decree of the court of competent jurisdiction.

The alternative dispute resolution system reduces the burdens of courts to a certain level by virtue of that probability for future progress enhances.

 

Process of alternative dispute resolution system:

By conciliation:

In the phenomenon of the alternative dispute resolution, the term dispute does not signify an ordinary or general dispute. It signifies those disputes which are arose out of a legal relationship, whether contractual or not. Such as disputes between husband and wife in respect of their matrimonial relationship, or a relationship which are retired as of Hindus, who take marriage relationships as a social contract, the status of the relationship among the parties and the dispute thereof must legal in nature (Gersch and Gersch, 2003). 

Any dispute arose out of legal relationship regarding movable or immovable properties, intellectual properties, family issues, matrimonial disputes, breach of contracts, or specific performance of any contract or any kind of wrong which civil in nature as to a tort, may be resolved in either of the three ways:

  1. through court,

  2. through arbitration

  3. through conciliation

By arbitration:

Each party of the dispute shall have the equal opportunity in respect of the representation of their views regarding their points of arguments. They shall be treated equally and no biasness is admissible in the procedure.

Parties to the dispute are entitled to make submissions in the course of the procedure, by virtue of their submission they agrees upon certain points towards the disposal of the dispute which shall bind the parties accordingly, and thereafter the decision which shall be taken in respect of that shall be the conclusive decision and bind all the parties to the dispute (Reed, Paulsson and Blackaby, 2004).

Conclusion:

After completing the above discussion an outlay can be drawn that alternative dispute resolution plays a very important role in respect of reducing the burdens of the courts. It is a recognized process and the decision shall have the binding force. It not only reduces the burdens of the courts but it helps the justice seekers to get easy, inexpensive, quicker and effective remedy.

 

2. European Union laws as to precedents:

Introduction:

In the United Kingdom all the laws framed in accordance with the rules of the union and that are the supreme legal provisions. All the contravening laws to the union laws are to be dominated and ignored by the adjudicators. In the United Kingdom there are three major sources of law, these are legislation, precedents and customs. Legislation means the statutory law enacted by the legislatures. Customary laws are those laws that are coming from a long period as a practice. And the most important and superior source of law is the precedential laws. These laws are also known as judge made laws (Parpworth and Pollard, 2006).

European Union laws always have the supremacy over the other laws of the member states. It is a principal that signifies that all the laws that may make any conflict with relation to the union laws, such conflicting laws are to be ignored by the adjudicators. Union laws have the superior authority over the domestic laws of the country. Generally, in the judicial proceedings if any provision of the statute conflicts with another provision of any other statute then the court of law takes in consideration that provision of the statute, which is more appropriate and applicable for the matter in dispute pending before them. But if any laws make any contradiction with any of the provisions of the union laws then such a conflicting provision shall be set aside by the judicial authorities or it may be repealed too. Laws consistent with the union laws are the governing rules of the union it will always prevail in the controversial situations (Schomerus, 2009).

In the judge made laws or the precedential laws the margin of error is very less as the adjudicators interpret each and every term of the statute in relation to its applicability to the matter pending before them. The judges take into consideration the basic intention behind the formation of the statute. In the case of Central London Property Trust Ltd v. High Trees House Ltd, the house of lords held that all the verdict made whilst deciding any matter in dispute the court of law indicates the observation that lead to such verdict and such an observation along with that verdict shall have the binding force of law to all the similar kind of cases with same cause of action as to the subsequent matters, and all the inferior courts are bound to follow the verdicts made by the higher courts upon any particular matter in dispute. This fact made the European Union law concern in relation to the adaptation of the precedents as the main source of law (Delfino, 2011).

As opined by Berry, Hargreaves and Berry (2007), union laws have the upper hand not only because of the governing authorities of the provisions of union laws but it has immense amount of respect for the constitutions of all the member countries and the union laws does not violate any of the provisions of the constitutions of any country within the kingdom.

As stated by Bowers (2013) along with 2.3 billion people of the world the citizen of United Kingdom are also governed by the rules of the common law system. Under the common law system the governing laws cannot be overlooked by any contravention made with any other law. Within United Kingdom, Union laws are the best and biggest example of common law system.

In the case of R v Secretary of State for Transport, ex p Factortame Ltd, it was held by the House of Lords that the United Kingdom has the supremacy to ‘disapply’ the regulations framed by the parliament if they are not consistent with the European Union laws. Lord Bridge stated that the parliament has voluntarily accepted the limitation of  it sovereign powers. This rule has been passed by the jurisprudence before the parliament has enacted the European Communities Act 1972.

Within the constitution of many members a separate provision is made regarding not enactment of any laws that may contravene any of the provisions of the union law. For instance, the Constitution of Ireland promotes union laws over the precedents. In this constitution it is mentioned that "No terms of this Constitution nullifies laws framed, acts completed or procedures approved by the State that are required by the responsibilities of association in relation to the European Union or to the Communities...." (Terpan, 2014).

 

In the Tribunal Constitution of Poland it is mentioned that whilst the European Union Laws may dominate the statutes of the nation but it do not dominate the constitution of the country. If there is any conflict among the provisions of the constitution of Poland and the provisions of the union law then Poland shall make a sovereign decision in relation to solve the conflict by not violating either of the provisions of the Constitution of Poland and the conflicting European union laws (Zatschler, 2012).

In the case of Costa v. ENEL, the court of law held that the commandment pestering from the accord, is a self-governing resource of law, might not, as of its exceptional and extraordinary quality, be conquered by domestic legal provisions, conversely, together with this, without being disadvantaged of its authentic character as laws connecting to community and excluding the legal establishment of the community itself has been put into query.

As opined by Wiesbrock (2010), it was held by the highest courts of many member countries that the concept of union laws is quite definite and suitable for its application upon the entire European Union as well as upon the member countries. The provision of the union laws has been formed by taking in to account the laws of the member nations and there is no doubt that the union laws comprise enough respect towards the constitutions of the member countries. Even in the constitution of some of the member states it is mentioned that the union laws shall always have the advantage over the other laws except the constitution.

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).

Conclusion:

After the above discussion it can be said that the laws framed in accordance with the union, has the supremacy over all the laws within the territory of the United Kingdom. Union laws may dominate any other law except the constitution of the member country rather the union laws have due respect towards the constitution of each member nation. Union laws are the governing laws and that cannot be avoided by the national court of laws and these laws will always remain on top.

 

References

Barnes, C. (2007). Bridging the gap. London: Conciliation Resources.

Belavkin, V. and Guță, M. (2008). Quantum stochastics and information. Singapore: World Scientific Pub. Co.

Berry, E., Hargreaves, S. and Berry, E. (2007). European Union law. Oxford [England]: Oxford University Press.

Bowers, C. (2013). Forensic Testimony. Burlington: Elsevier Science.

Bryson, W. and Dauchy, S. (2013). Ratio decidendi. Berlin: Duncker & Humblot.

Delfino, R. (2011). European Union legislation and actions. European Review of Contract Law, 7(4).

Dauchy, S., Bryson, W. and Mirow, M. (2010). Ratio decidendi. Berlin: Duncker & Humblot.

Gelston, A. (2008). The Psalms in Christian worship. Norwich, UK: Hymns Ancient and Modern.

Gersch, I. and Gersch, A. (2003). Resolving disagreement in special educational needs. London: RoutledgeFalmer.

Hoffman, D. (2011). The impact of the UK Human Rights Act on private law. Cambridge, UK: Cambridge University Press.

Isa Kamari, (2010). Intercession. Singapore: Marshall Cavendish Editions.

Isaac, J. and Macintyre, S. (2004). The new province for law and order. Cambridge, UK: Cambridge University Press.

New dementia scheme sets "dangerous precedent" in the UK. (2014). PharmacoEconomics & Outcomes News, 716(1), pp.6-6.

Nikolic, D. (2009). Elements of judge-made law in Serbia and European Union. Zb. Matice srp. dru?. nauke, (126), pp.7-40.

Parpworth, N. and Pollard, D. (2006). Constitutional and administrative law. Oxford: Oxford University Press.

Reed, L., Paulsson, J. and Blackaby, N. (2004). Guide to ICSID arbitration. The Hague: Kluwer Law International.

Schomerus, T. (2009). European Union Law by Alina Kaczorowska. Modern Law Review, 72(3), pp.517-518.

Singh, J. (2008). Negotiation and the global information economy. Cambridge, UK: Cambridge University Press.

Taylor, M. (2005). Negotiation. Oxford, UK: Oxford University Press.

Terpan, F. (2014). Soft Law in the European Union-The Changing Nature of EU Law. European Law Journal, 21(1), pp.68-96.

Travis, M. (2014). Accommodating Intersexuality in European Union Anti-Discrimination Law.European Law Journal, 21(2), pp.180-199.

Tracy, B. (2013). Negotiation. New York: American Management Association.

Ware, S. (2001). Alternative dispute resolution. St. Paul, Minn.: West Group.

Wiesbrock, A. (2010). Legal migration to the European Union. Leiden: Martinus Nijhoff Publishers.

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