BINDING THIRD PARTIES TO ARBITRATION: IS THE CORNERSTONE OF ARBITRATION “Consent” – ACTUALLY CORNERED?
Like consummated romance, arbitration rests on consent.
CHAPTER I: INTRODUCTION
Ordinarily, “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” Consent has long been the foundation of arbitration , giving the process legitimacy and informing decisions about its nature and structure. In corollary, the powers which vest in the arbitrators find its root in the agreement to arbitrate where the parties agree to submit their grievances to arbitration. Hence, plausibly there are two sine qua non conditions for enforcing an arbitration agreement firstly, there should be in-fact an arbitration agreement and secondly, the dispute must fall within the scope of arbitration agreement. But, there is a growing trend where courts have decided that the arbitration is binding even to third parties (i.e. in legal terms a non signatory) which violates both principles set above. While some countries also take the route of pro-arbitration policy to bind third party i.e. any disagreement which relates to an arbitration clause is determined in favour of arbitration , United States Court (who favours arbitration as a federal public policy) acknowledged that the Federal Arbitration Act will not require arbitration unless the parties to the to the dispute have in fact agreed to refer the dispute to arbitration.10 Evidently, there is divergences in practices of countries. The following extracts of Tibor and Dr. Marc when positioned collectively explain the situation this paper seeks to address.
"Arbitration is a creature of contract,1 and Consent is the cornerstone upon which the temple of privat...
... middle of paper ...
...tations. Yet, courts have neatly encroached on the conception of privity of contract and carved out exception without sideling the entire concept.
To establish a practice of binding non signatory, it is important that we understand the efficiency and contribution of arbitration towards smooth functioning of international businesses. Binding non signatories becomes part and parcel of certain industries like maritime, where you have multiple contracts (bill of lading, charter party and freight forwarder contracts) for achieving a single result: carriage of goods. Obviously, it highlights the requirement of lawyers to draft contracts keeping in mind that a third party might be added. Ultimately, efforts towards establishing a trend of law in international arbitration will help us to progress on a path which valuable of all aims in dispute resolution: predictability.
Macintyre, S. (1987), Holt and the Establishment of Arbitration: An Australian Perspective, New Zealand Journal of Industrial Relations, 12(3): 151-159.
...aw in the US and Australia where the doctrine can be used to found a cause of action to remedy the non-performance of a promise unsupported by consideration. In the UK however, it is a means where contractual rights may be suspended, but not by which new rights can be formed. In the US, where the doctrine can be used as a cause of action and has been used in multiple cases, commentators have claimed that the doctrine is a ‘flexible means of achieving fairness’ and ‘cannot be reduced to a precise formula or series of tests’ .
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.”
Plea bargaining is an agreement between the defendant and prosecutor wherein the defendant agrees to plead guilty to a particular charge in order to obtain some concession from the prosecutor in a criminal case, this might mean that the defendant will plead guilty to the original criminal charge to receive a relatively lenient sentence .
Sue contracts with Tom to deliver a quantity of computers to Sue’s Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against Tom in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. If the dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case? Explain. (See Alternative Dispute Resolution.)
HILLIARD, J. And O’SULLIVAN, J. (2012) The Law of Contract [Online] 5th Ed. Oxford: Oxford University Press. Available from - http://books.google.co.uk/ [Accessed: 2nd January 2014]
This case mentioned below is a fine example of understanding the Law of Contract in a better manner. (Gerald, 2014).
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.
Negotiation is an important strategy and plays an indispensable role for people to solve the problem in our lives. It is a good way to make both parties find acceptable solution by each parties use tactics to persuade another party to approve his or her viewpoint. The application of the advanced negotiation skills definitely not only brings success in our daily life but also improve people’s work ability. This essay will show my natural preferences for different types of influence tactics which have been utilized in in-class, the understanding of the negotiation and analyze how to use proper tactics at different situations which are based on the role-play activity in tutorial.
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.
The basic law of a contract is an agreement between two parties or more, to deliver a service or a product. And reach a consensus about the terms and conditions that is enforced by law and a contract can be only valid if it is lawful other than that there can’t be a contract. For a contract to exist the parties must have serious intentions, agreement, contractual capacity meaning a party must be able to carry a responsibility, lawful, possibility of performance and formalities. Any duress, false statements, undue influence or unconscionable dealings could make a contract unlawful and voidable.
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.
Conflict is unavoidable and connected to a world where different ideas and opinions are challenged. Negative conflict occurs when voices are not expressed appropriately, discussions are not in control or different parties reject moving forward with a solution. There is difficulty resolving disagreements because there are multiple reactions to disputes. However, a positive conflict supports debates without a destructive outcome. They improve communication, introduce principles that are important to others, and reduce chaos. On the other hand, the approach that a person uses to address conflict dictates the outcome they receive. Methods for resolving conflict include avoiding the problem, smoothing out a situation, competing against the ideas
Mediation is a way to solve a dispute without having to resort to court procedure which sometimes could turned out to be rigid, formal and time consuming especially when it needed a lot of paperwork and the possibility of adjournment which could consume years. Besides that, unlike in court, mediator as a third impartial party did not acted as a judge who decides on the resolution however, the mediator will help the parties to explore the needs and issue which before preventing them from achieving a mutual resolution and settlement. The mediation process gave the authority towards the parties to agree with each other and open up the chance for the parties to meet with a resolution at the end of the mediation session.