Section 8 - Disputes Resolution Flashcards
three types of disputes
- civil
- criminal
- administrative
civil disputes: parties
parties are all private
- private vs private
- legal entity vs legal entity
civil disputes: subjects
civil disputes are about private rights and remedies related to PROPERTY, FAMILY and COMMERCE matters
Types of civil disputes: Family law, defamation, trespass, breach of contract/breach of an obligations, wills and inheritance, negligence, nuisance
Which is the main example of civil disp in the business world?
breach of contract, liability in tort or disputes with employees
civil disp : possible outcomes
- DECLARATORY JUDGEMENTS (invalidity of acts)
- ORDERS (to pay, to leave, delivery)
- judgements regarding a new legal status (ex. transfer of property)
civil disp: result
usually the individual at fault is punished by paying the plaintiff a sum determined by the judge
civil disp: who decides
a judge presides over the case and determines guilt. A civil trial can have a jury if either side requests one
criminal disputes: parties
state vs individual (private nature person)
but through jurisdictions also companies and partnerships can be responsible for criminal offenses
criminal disputes: results
fine, jail time, probation or execution
criminal disputes: subjects
criminal offenses (actions or omissions)
criminal disputes: who decides
a jury under the supervision of a judge
administrative disp: who
private party vs public body
administrative disp: results
SAME AS CIVIL ( declaratory judgement, orders, judgements attributing new legal status)
administrative disp: subjects
remedies against act and decisions of public body (ex. authorizations, permits, procurement agreements)
4 dispute resolution mechanisms
Amicably
Mediation
Litigation
Arbitration
amicably resolution
the PARTIES, also through previously regulated negotiations (“conciliation process”) try – on their own – to reach a mutually amicable settlement agreement
mediation resolution
A NEUTRAL INTERMEDIARY, with NO power to impose a decision, tries to help the parties reach a mutually amicable settlement agreement.
Mediation is an amicable negotiation overseen by a professional mediator
litigation resolution
a government-operated court, presided over by a government-employee judge, imposes a decision
arbitration
a private court, presided over by a private judge called an arbitrator, imposes a decision
which is the default option for dispute resolution?
LITIGATION is the the default option,
alternatively, if the parties CONSENT to it, they can pursue mediation or arbitration (called ADR – Alternative Dispute Resolutions)
3 main aspects of mediation
- neutral third party
- non binding discussions
- focus on mutual agreement
4 main aspects of arbitration
- binding decisions
- appointed arbitrators
- formalized process with rules and evidence
- limited rights to appeal
3 main aspects of litigation
- courtroom
- juridicial determinations
- public record proceeding
main difference between mediation VS litigation and arbitration
Litigation & Arbitration are directed to impose a decision BASED ON THE LAW -> This means that the decision reaches conclusions about what the law says about a specific set of facts.
In mediation, the settlement is the result of the negotiation between the parties and it is totally independent/autonomous from what the fact actually are and what the law would say about them.
main benefits of arbitration opposed to litigation
- saves legal cost for preparation of trial
- saves time (early closure)
- decision is final
- confidential and private
- parties are not forced to settle
- negotiate how they want to settle
- lower costs (but fee)
two components of the decision from arbitration and litigation
- FINDING of the facts
- CONCLUSION OF THE LAW
is the investigation phase necessary for mediation?
no
which are the two questions rising from a dispute involving several jurisdictions?
- WHICH law is applicable?
- WHERE to promote the dispute?
mediation:
- law issue?
- where issue?
- no
- no
arbitration:
- law issue?
- where issue?
- no
- yes
litigation:
- law issue?
- where issue?
- yes
- yes
where issue for litigation: what is the general framework?
Reg. (EU) 1215/12 (“Bruxelles” Regulation)
where issue for litigation: When does the bruxelles regulation apply?
when the defendant of a CIVIL or COMMERCIAL dispute has DOMICILE in one Member State of the EU
where issue for litigation: what is the scope of the bruxelles regulation?
civil and commercial disputes does not include
- fiscal matters
- family matters
- insolvency proceedings
- successions matters
- natural persons’ capacity and status
where issue for litigation: what is the basic rule about competence?
Competence is attributed to the court of the DEFENDANT’s DOMICILE, regardless of the defendant’s citizenship.
What is domicile for a natural person?
- the place of habitual residence
- the place of main business activity/central administration
What is domicile for a legal person?
the place of statutory seat
* the place of central administration
* the place of principal place of business
(international disputes): what law applies in case there is a contract?
usually the applicable law is chosen by the parties;
when there is no choice, it can be the law of:
- the SELLER’S RESIDENCE
- the AGENT’S RESIDENCE
- the DISTRIBUTOR’S RESIDENCE
exceptions: employment and customers
(international disputes): what law applies in case there is a non-contractual obligation?
usually when there is a TORT, the law is chosen by the parties, if no choice is applicable the LAW OF THE PLACE WHERE DAMAGE OCCURRED
unless:
- both responsible and victim are in the same country
- or other circumstances suggest another law is more appropriate
