Substantive law penetrates to the very nucleus of a commercial conflict. Moreover substance of the dispute can be arising out of four facets namely;
1. Dispute arising out of the underlying contract
2. Validity of the contract
3. Termination of the contract
4. Applicable law (Substantive law/Proper Law)
Section 24 of the Arbitration Act No. 11 of 1995, converses the law applicable to substance of the dispute. Accordingly the applicable law would be either the law which is designated by the parties to the contract exercising the rights of party autonomy or failing such designation, the law determined by the conflict of laws rules which it considers applicable or considerations of general justice and fairness or trade usages. Arbitration does not exist in a vacuum but with in a legal framework. Hence in the absence of a specific designation of law by the parties, the Arbitrator has the discretion of referring to other means mentioned in the said Section to acquire justice.
When analyzed in depth it is evident that Section 24 (4) of the Arbitration Act paves the way to apply principles ...
In 1977, Nils Christie wrote the essay, “Conflicts as Properties”, in which he discusses the four problems that occur within the western legal system. The four problems that affect the legal system in four ways is that the courts are always located in areas that people may not have easy access to locate, the courthouses are challenging to find your way around, the parties are irrelevant to much of the proceedings and the proceedings makes conflicts between the actual parties involved turn into conflicts between the State and the parties 2.
Twomey, D. (2013). Anderson's Business Law and the Legal Environment, Comprehensive Volume [VitalSouce bookshelf version]. Retrieved from http://digitalbookshelf.southuniversity.edu/books/9781285696683/id/L35-1-7
Macintyre, S. (1987), Holt and the Establishment of Arbitration: An Australian Perspective, New Zealand Journal of Industrial Relations, 12(3): 151-159.
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.
Analyze the above statement by explaining the facts of the case and by discussing the three significant legal principles which were upheld in this case.
There is the principle that the courts will not interfere in the internal dispute of partnerships, joint stock companies, or the modern corporation, the precept that the court seeks to avoid a multiplicity of actions, the principle that equity will not act in vain and that it would do so if the court were to rule on a matter that was within the competence of a majority of the shareholders, and finally, the principle that for a wrong done to a company, the company is the proper plaintiff in an action to seek
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.
James G. Skakoon, W. J. King and Alan Sklar (2007). The Unwritten Laws of Business. /: Tantor Media.
The sanctity of contract guarantees certainty in contract law. Courts interfere with contractual provisions agreed upon between the parties only in exceptional cases. A judge’s role can draw parallels to that of an umpire in a sport match who must ensure that the game is played according to the rules, in this case according to the terms of the contract (Neuberger, 2016). Judges only have limited judicial discretion as they should recognise and give effect to the agreement reached by the parties. The discretion of judges in lower courts is further limited as they are not able to depart from the stare decisis rule. Stare decisis is a phrase in Latin which translates as “to stand by decisions and not to disturb settled matters” (Perell, 1987). By applying the doctrine of stare decisis, judges are cautious and will not interfere with contractual terms agreed upon by parties. They also do not permit their personal ideologies, values and sensibilities to feature in the adjudication process.
The defendant is an Airlines Company that had 900 employees. The economic crisis followed with monetary crisis gave bad effects to the defendant. They should decrease the number of their airplanes form 9 to 2 airplanes. They also had to do the efficiency on their employees to 700. On the efficiency process, there was an agreement between the defendant and employees representation on October 30 1998. The agreement stated that they would bring Independent Public Accountant to analyze company financial condition. During the process, all side should work on their duty. The Defendant should pay employees’ wage. The agreement was not guarantee that didn’t mean the dispute process was over, but the negotiation still moved on. During the process, there was another agreement between the defendant and several employees. They agreed the finish the disputed process and the employees would get separation pay. Meanwhile, other employees, who were 153 people didn’t agree with that agreement. Because they didn’t agree each other, so the employees gave the case to the “Panitia Penyelesaian Perselisihan Perburuhan Pusat (P4P)”.
Business law, likewise regularly known as business law, is made up of standards, statutes, codes and regulations that administer business connections. Those connections could be either business-to-business or business-to-shopper. Where a business has abused business law, and that violation has brought about damage, shoppers, organizations or contenders can record claims against the culpable gathering, or gatherings, in an endeavor to recuperate their misfortunes. Business law blankets a wide mixed bag of unlawful business exercises including antitrust, unreasonable rivalry, out of line business practices and violations of protection. It likewise blankets business, agreement law and, since the ascent of workstation innovation, digital law.
The resolution of disputes through alternative dispute resolution mechanisms has gained momentum over recent decades. It has increasingly occupied space in the academic literature as the “new” method to achieve “justice” for disputing parties. It is important to note that a variety of definitions of “justice” can be relied upon. However, in many cases, justice will mean the parties being able to resolve their dispute fairly, justly and amicably by applying law or legal principles. Traditional legal mechanisms for resolving disputes have been increasingly questioned as to whether they are actually capable of achieving justice in individual cases.