Alternative Dispute Resolution (ADR) is quickly becoming one of the fastest growing fields in Business and Law. In this program students will learn the processes and laws as they relate to Mediation and Arbitration. An exploration of various kinds of ADR agreements and how they may be worded and placed into Business contracts will be undertaken to ensure that students are versed not only in the processes of ADR but also the drafting of legally sound ADR agreements for business purposes.
Ethics and Definitions of ADR
The ADR institute of Canada (ADRIC) is recognized as Canada’s preeminent Alternative Dispute Resolution (ADR) professional organization. ADRIC sets the standard for best practices for ADR in Canada and provides leadership, value and support to our individual and corporate members and to our clients. They provide education and certification, promote ethical standards and professional competency, and advocate for all forms of ADR for public and private disputes. This Module will examine this organization’s rules of conduct and explore how ADR has been implemented in this Jurisdiction.
The United States
The not-for-profit American Arbitration Association (AAA)-International Centre for Dispute Resolution (ICDR) is the largest private global provider of alternative dispute resolution (ADR) services in the world and also the premier association for alternative dispute resolution in the US jurisdiction. Students will learn how this body approaches ADR concepts and the exception to UNCITRAL model law in the US.
Europe, BRICS and Asia
The Chartered Institute of Arbitrators is a learned society that works in the public interest to promote and facilitate the use of Alternative Dispute Resolution mechanisms in the United Kingdom and Europe. This class will examine the rules of of the CIA and how it monitors the practice of ADR in Europe, BRICS and Asia
ADR in Industry
Construction Rules and Regulation
Construction agreements usually provide for disputes to be dealt with by agreed dispute resolution procedures involving mediation, adjudication and arbitration. Often a combination of all three. For example, the New Engineering Contract (NEC) Engineering and Construction Contract, the Joint Contracts Tribunal (JCT) 16 Standard Form of Building Contract, and the Fédération Internationale des Ingénieurs-Conseils (FIDIC) Conditions of Contract. This class will take the student through the rules of Mediation and Arbitration with regard to construction disputes in varying jurisdiction.
Medical Mediation and Arbitration
Medical ADR: An arrangement in which the patient waives the right to sue the physician and, instead, agrees to submit any dispute to arbitration or mediation. Arbitration agreements are legal and binding. Mediation agreements are not. The arguments in their favor are that, for patients, the case can be settled faster, and more money can go to the patient (rather than to a lawyer). Physicians can often get a discount on their malpractice insurance if the majority of their patients sign such agreements. This Class explores the complications of Medical Malpractice and the role which ADR plays in the settling of these disputes.
Family Mediation and Arbitration
When relationships and marriages break down, people usually try several ways of settling matters with each other. Those ways often include attempts to negotiate a deal directly with each other; working with a family mediator; and/or retaining family lawyers to negotiate a deal, including collaborative family lawyers. This class explores the various approaches to family Mediation and Arbitration and instances where Family ADR is not appropriate.
The Automotive Industry
ADR (Alternative Dispute Resolution) as it relates to the automotive industry is a means of settling disputes without resorting to the courts. Settling disputes using ADR is usually a free or low cost way of resolving a dispute between a consumer and a trader and is normally faster and cheaper for both consumers and traders than the civil courts. This course focuses specifically on the Consumer/trader Relationship and how ADR agreements are included in the sales contracts in this industry
International Dispute Resolution
International arbitration is the process of resolving disputes between or among transnational parties through the use of one or more arbitrators rather than through the courts. It requires the agreement of the parties, which is usually given via an arbitration clause that is inserted into the contract or business agreement. The decision is usually binding. This Class examines why Mediation is not the “go to” form of dispute resolution when state actors are involved in a dispute and the laws of International Dispute Resolution.
International Alternative Dispute Resolution
Introduction to ADR
This class provides an introduction to the basic principles of international Dispute Resolution in international business transactions.
Establishing the right jurisdiction
This class examines the following concepts in international dispute resolution:
Arbitration or court proceedings?
- Validity of arbitration agreement?
- Incidental issues such as validity of contract and authority of agent?
- Which law is applicable to these?
- Has the forum got jurisdiction?
- Jurisdiction in more than one country – potential exploitation of forum shopping
Establishing the applicable law
This class concentrates on teaching the student the uses of the correct law as per the ADR agreement. Topics Covered are:
- Any Conventions to observe? Are these multilateral or bilateral
- Location of court
- Are there any internal or domestic rules of private international law to observe such as the Rome Convention?
- Are the parties involved contracting countries to the convention? What is the scope of the convention – territorial, subject matter, temporal?
Identifying and discussing the connecting factors
The connecting factors of a dispute relates to the elements of the ADR contract which determine the procedure o be implemented. Topics included here are as follows:
- Domicile of parties
- Place where the contract was concluded – lex loci contractus
- Place where the contact was to be performed – lex loci solutionis
- Issues of Renvoi – Excluded by Article 15 of the Rome Convention.
Foreign Law in English courts
This class asks 4 questions of the prospective Judge/Arbitrator. Once all are answered in the affirmative, he can apply the foreign law to the case:
- Is the foreign law the applicable law?
- No prohibition of applying the foreign law?
- Is the foreign law pleaded and its application established by the party wanting to rely on it?
- Is the foreign law sufficiently proven?
Module 5 ADR Processes
In order to apply the suitable “choice of law” rule we have to categorize the factual scenario into a precise legal category and go from there. In other words: This is the process of finding legal categories in which the scenario might fit. Then we look at the facts of the case and find out in which category they fall. So we are asking for the relevant issue.
Once we have found more than one issue falling into different categories, we have to identify which one is the leading one and identify the additional issue within this process.
E.g. the rights and duties of the parties under a contract will depend on the validity of the contract, which will depend on the capacity to contract of the parties involved. So we will identify the lex contractus – domestic and conflict rules – and take it from there.
Connecting factors are the link between the event and the country. Once we know the choice of law rule, the connecting factor will lead us to the country whose law is to be applied. Eg: In tort, the law of the place where the tort took place provides the applicable law – the lex delicti. Regarding the formal validity of a marriage it is the law at the place where the marriage is celebrated, regarding the essential validity of the marriage depends on the law of the country where the couple is domiciled – the lex domicilii. The law of the country in which the land is situated – the lex situs, determines the title to land.
So the connecting factors can be:
- the place where the tort took place,
- the place where the marriage was celebrated;
- the domicile;
- the place where the land is situated;
- the habitual residence
- the place where a contract has its closest connection…
Renvoi – The meaning of application of foreign law
What is meant by foreign law? The domestic law of the particular country or the conflict rules/private international law of the country?
- The domestic law of the chosen country?
- All the law – the domestic law and the private international law, and if this leads on to a different law/to refer back to English law to interpret this as the domestic law?
- All the law – the domestic law and the private international law, and if this leads on to a different law/to refer back to English law to interpret this again as all of the law including the conflict rules referring back? One then will have to ask what the foreign judge hearing the case would do. (Foreign court theory or total renvoi. – This happens to have a good effect in the prevention of forum shopping)
The law of the forum is applied to procedural matters and will usually override conflicting rules of the lex causae.
- Personality and competences allowing a person to sue and be sued
- Nature of remedy and method of enforcement.
- Interlocutory procedure, however limitation by international agreements and comity.
- Limitation of action which merely bar the action, but Foreign Limitation Periods Act 1984 stipulates this as a matter of the substantial law.
Hearings Preparation and Procedure