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LAW 24 > Section 8 - Disputes Resolution > Flashcards

Section 8 - Disputes Resolution Flashcards

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1
Q

three types of disputes

A
  1. civil
  2. criminal
  3. administrative
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2
Q

civil disputes: parties

A

parties are all private
- private vs private
- legal entity vs legal entity

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3
Q

civil disputes: subjects

A

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

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4
Q

Which is the main example of civil disp in the business world?

A

breach of contract, liability in tort or disputes with employees

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5
Q

civil disp : possible outcomes

A
  1. DECLARATORY JUDGEMENTS (invalidity of acts)
  2. ORDERS (to pay, to leave, delivery)
  3. judgements regarding a new legal status (ex. transfer of property)
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6
Q

civil disp: result

A

usually the individual at fault is punished by paying the plaintiff a sum determined by the judge

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7
Q

civil disp: who decides

A

a judge presides over the case and determines guilt. A civil trial can have a jury if either side requests one

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8
Q

criminal disputes: parties

A

state vs individual (private nature person)

but through jurisdictions also companies and partnerships can be responsible for criminal offenses

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9
Q

criminal disputes: results

A

fine, jail time, probation or execution

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10
Q

criminal disputes: subjects

A

criminal offenses (actions or omissions)

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11
Q

criminal disputes: who decides

A

a jury under the supervision of a judge

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12
Q

administrative disp: who

A

private party vs public body

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13
Q

administrative disp: results

A

SAME AS CIVIL ( declaratory judgement, orders, judgements attributing new legal status)

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14
Q

administrative disp: subjects

A

remedies against act and decisions of public body (ex. authorizations, permits, procurement agreements)

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15
Q

4 dispute resolution mechanisms

A

Amicably
Mediation
Litigation
Arbitration

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16
Q

amicably resolution

A

the PARTIES, also through previously regulated negotiations (“conciliation process”) try – on their own – to reach a mutually amicable settlement agreement

17
Q

mediation resolution

A

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

18
Q

litigation resolution

A

a government-operated court, presided over by a government-employee judge, imposes a decision

19
Q

arbitration

A

a private court, presided over by a private judge called an arbitrator, imposes a decision

20
Q

which is the default option for dispute resolution?

A

LITIGATION is the the default option,

alternatively, if the parties CONSENT to it, they can pursue mediation or arbitration (called ADR – Alternative Dispute Resolutions)

21
Q

3 main aspects of mediation

A
  1. neutral third party
  2. non binding discussions
  3. focus on mutual agreement
22
Q

4 main aspects of arbitration

A
  1. binding decisions
  2. appointed arbitrators
  3. formalized process with rules and evidence
  4. limited rights to appeal
23
Q

3 main aspects of litigation

A
  1. courtroom
  2. juridicial determinations
  3. public record proceeding
24
Q

main difference between mediation VS litigation and arbitration

A

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.

25
Q

main benefits of arbitration opposed to litigation

A
  • 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)
26
Q

two components of the decision from arbitration and litigation

A
  1. FINDING of the facts
  2. CONCLUSION OF THE LAW
27
Q

is the investigation phase necessary for mediation?

A

no

28
Q

which are the two questions rising from a dispute involving several jurisdictions?

A
  1. WHICH law is applicable?
  2. WHERE to promote the dispute?
29
Q

mediation:
- law issue?
- where issue?

A
  • no
  • no
30
Q

arbitration:
- law issue?
- where issue?

A
  • no
  • yes
31
Q

litigation:
- law issue?
- where issue?

A
  • yes
  • yes
32
Q

where issue for litigation: what is the general framework?

A

Reg. (EU) 1215/12 (“Bruxelles” Regulation)

33
Q

where issue for litigation: When does the bruxelles regulation apply?

A

when the defendant of a CIVIL or COMMERCIAL dispute has DOMICILE in one Member State of the EU

34
Q

where issue for litigation: what is the scope of the bruxelles regulation?

A

civil and commercial disputes does not include
- fiscal matters
- family matters
- insolvency proceedings
- successions matters
- natural persons’ capacity and status

35
Q

where issue for litigation: what is the basic rule about competence?

A

Competence is attributed to the court of the DEFENDANT’s DOMICILE, regardless of the defendant’s citizenship.

36
Q

What is domicile for a natural person?

A
  • the place of habitual residence
  • the place of main business activity/central administration
37
Q

What is domicile for a legal person?

A

the place of statutory seat
* the place of central administration
* the place of principal place of business

38
Q

(international disputes): what law applies in case there is a contract?

A

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

39
Q

(international disputes): what law applies in case there is a non-contractual obligation?

A

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

LAW 24 (8 decks)

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