HOW FINAL SHOULD
DISPUTE RESOLUTION BE?
Intro
The number of disputes in the construction industry is rising dramatically but it’s with the secondary disputes, or ‘disputes about disputes’, that this paper is concerned. While they have a professional and social purpose in ensuring that dispute resolution complies with the applicable rules, they naturally give rise to the question addressed in this paper: to what extent should challenges to the process or the result be allowed; or ‘How final should dispute resolution be?’ (Uff, 2010).
The first point to make is that the standard forms then in common use contained serious restrictions on what could become the subject of a formal dispute. For example, up to 1980, the JCT forms contained a conditional embargo on defects claims after the giving of the final certificate, an issue which led to at least two major House of Lords decisions before the bar was progressively lifted. After this incident there were, many secondary disputes as to whether defects claims could be pursued at all (Uff, 2010).
The requirement for an engineer’s decision as a condition precedent to the right to proceed to arbitration gave rise to a excess of decisions, both in the English courts and in a succession of published and unpublished arbitration awards on whether particular disputes had been properly seen to, so as to give the tribunal jurisdiction (Uff, 2010).
The Technology and Construction Court
Before 1996 the parties usually had a classic choice between arbitration or litigation. In both cases, as with the forms of contract, the general approach was that decisions were to be final, with only a few exceptions (Uff, 2010).
However, two exceptions were introduced. First, to avoid loss of bus...
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...h may not subsequently be challenged. In the modern world this cannot include decisions of third parties. It can include agreement things like time limits and prices (Uff, 2010).
In arbitration, while the procedure is subject to party autonomy, the right of challenge by appeal on a point of law is not, but this is subject to a major exception in that it is still possible to contract in to such an appeal — a provision that might be seen as increasingly out of touch. The bulk of commercial arbitration is subject to institutional rules (typically those of the London Court of international Arbitration or International Chamber of Commerce) which, on the contrary, exclude any appeal, thereby representing a different aspect of party autonomy (Uff, 2010).
Reference list
Uff, J., 2010. How Final Should Dispute Resolution Be?, s.l.: Society Of Construction Law.
The decision of the House of Lords in City of London Building Society v Flegg marks a key stage in how the balance is drawn between occupiers and creditors in priority disputes; the seeds of which were originally planted in the Law of Property Act 1925. It posed a serious challenge to the conventional understanding of overreaching and the machinery of conveyancing.Ref ?
Macintyre, S. (1987), Holt and the Establishment of Arbitration: An Australian Perspective, New Zealand Journal of Industrial Relations, 12(3): 151-159.
Andrews N, Strangers to Justice No Longer: The Reversal of the Privity Rule under the Contracts (Rights of Third Parties) Act 1999 (2001) 60 The Cambridge Law Journal 353
Having evaluated the current state of English contract law, mainly made up of piecemeal solutions, it can be seen that despite being satisfactory and doing its job, there still remain gaps within the law of contract where unfairness is not dealt with. Moreover, due to the ad hoc nature of those piecemeal solutions, the latter have often produced inconsistent justice and have manifested cases of unfairness. Hence, “a relatively small number of respected Justices have endeavored to draw attention to the fact that the application of a general principle might be useful and even necessary in English law.”
Journal of Dispute Resolution, 401-427.
What occurred in this case was that in a new build factory there had been inoperative flooring set and the claimants in this case lost money due to the flooring having to be reset again. In this case the claimants were in contract with the builders who laid the floor but decided not to sue them but to sue the sub contractors for their negligence because they were present when the builders and claimants were at meetings when discussing the flooring. Similarly, to the case Anns v Merton London Borough Council [1978] the court allowed the claimants to sue the defendants for their financial
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
Contractual agreement has always been viewed in terms of offer and acceptance. The universal principle to contract law has always been parties may get into an agreement in whichever way they deem fit and they are subject to certain terms as they choose. As far as legal requirements vital to their formation are binding contracts may be formed. Moreover a binding agreement may be manifested in terms of writing or in verbal form.
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
ADR holds an extensive, easily influenced and diverging choice of processes for finding solutions to disputes which are personified by structured negotiation and consensus. It is regarded that arbitration is a familiar ADR technique, however, it is more of an official adjudicative and adversary technique initially a confidential litigation process which has more commonality to litigation than the more original consensual processes which symbolise ADR. As simplified by Angyal (Alternative Dispute Resolution, 1987, p. 11). "The key difference between ADR and those traditional techniques of litigation and arbitration is that ADR techniques are used to produce a resolution to dispute through a negotiated agreement while litigation and arbitration are processes by which a result is imposed on the parties. " We can say that many issues arise with terms.
An arbitrator’s function is usually to interpret the collective bargaining agreement between the parties, not to apply his or her standards of what is right in a given situation. The courts have sought to compel labour and management to a peaceful resolution of grievances through arbitration. The Supreme Court has given support to the arbitration process in a series of decisions, and judicial deferral to arbitration has become a basic tenet of national labour policy. Bibliography Byars, L. L. (1997). The.
No appeal is allowed against an award granted by the arbitrator. If an irregularity has occurred or gross misconduct by the arbitrator or the commissioner is proven a party has six weeks to file for a review in the Labour Court.
This essay will examine the doctrine of Judicial precedent that helps form the English Legal System. It will illustrate various views that have been raised by Judges and relating cases to the use of ‘Stare decisis’ when creating precedents. In addition it will discuss how the developments in the powers of the courts now also allow them to depart from these precedents to an extent.
Gies, T. P., & Bagley, A. W. (2013). Mandatory arbitration of employment disputes: What's new and what's next?. Employee Relations Law Journal, 39(3), 22-33.
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...