Archivo de la categoría: INTERNATIONAL NEWS

Secretariat

Why should one choose to arbitrate? FUENTE: Dhaka Tribune

As a means of resolving disputes outside of the court, the concept of arbitration in the form of Alternative Dispute Resolution (ADR) has developed in Bangladesh in the recent past. Arbitration in Bangladesh is being governed by section 89B of the Code of Civil Procedure and Arbitration Act, 2001 which is based on UNCITRAL model law. The Act of 2001 will apply to all arbitrations in the country except those which may not be submitted to arbitration by virtue of any other law.

Arbitration is a process where the parties refer their disputes to a person or a group of persons who decides the disputes between or among the parties, and the parties agree to oblige the decision without intervention of the court. We can say it is an agreement to resolve the dispute without the aid of the court.

With all other means of resolving disputes available before the parties, why should they choose to arbitrate? A lawsuit may seem to be cheaper than the costs involved in arbitration because the professional fees of the arbitral tribunal and the expense of venue have to be borne by the parties of a dispute. After attending a couple of arbitration sessions as legal counsel I can say that there are many reasons why anyone should choose arbitration proceeding by overlooking the tawdriness of the court.

As no dispute settlement mechanism is perfect, it is necessary to mention the cons as well as pros of arbitration. Expenses of arbitration proceedings in Bangladesh are, to some extent, higher in comparison to other modes of dispute resolution. Undeniably there is an extra cost in respect to the fees of the arbitral tribunal. Another difficulty in arbitral proceedings is the challenges made to the arbitration agreement or to an arbitrator.

The success of resolving disputes outside the court rest on the people’s participation in the various modes of alternative dispute settlement mechanism. And, people can only participate when they actually know the benefits of ADR. So, it is the duty of the government, judiciary and the lawyers to encourage people to participate in different kinds of dispute settlement mechanisms like arbitration and take immediate result without intervention of the court.

 

the future

The future of legal education and practice: Should ADR be compulsory in legal education? FUENTE: Herbert Smith Freehills and others

Legal practitioners must understand which factors make ADR appropriate and must educate their clients to assist them in choosing the most appropriate process. This is particularly important now that some ADR processes are integrated with pre-trial litigation procedures. This requires a critical understanding of the advantages, disadvantages and strategic considerations of different methods and what characteristics of disputes or disputants lend themselves better to one or another form of ADR, if any.

In light of the increasing focus on ADR, Lauren Whitehead, a solicitor in our Sydney office, considers below what type of education the modern legal practitioner needs. Although focussed on the Australian context, the analysis is equally relevant to other jurisdictions where ADR is being embraced.

Practitioners are said to gain a standard philosophical map through their legal education, with an emphasis on the role of litigation in dispute resolution. Arguably this comes from the nature of conventional legal education, the focus in law schools of teaching appellate decisions and the use of the Socratic method in classrooms. It is not a surprise that this route is said to promote an adversarial approach in students’ legal education, leading to the view that a collaborative or consensual approach is inconsistent with good lawyering and the strong representation of client interests. However, this adversarial approach may create conflicts with practical training and experience as a practitioner.

There is increasing commentary that ADR should be included as a continuum in the course of students and practitioners’ legal education and development. In fact, some scholars have suggested that traditional legal jobs will soon no longer exist and that the modern legal practitioner is likely to be more engaged in dispute resolution. Richard Susskind has stated that:
“The market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem solving and more) that can equally or better be discharged, directly or indirectly by smart systems and processes. It follows that the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, I foresee new law jobs emerging which may be highly rewarding, even if very different from those of today.”

Another legal scholar, Julie Macfarlane, has noted that if lawyers do not represent conflict resolution in our public culture, then what is their function? There is an urgent need for lawyers to modify and evolve their professional role consistent with changes in their professional environment. As areas of traditional practice evolve, law students who understand ADR will be able to function easily and effectively in today’s justice system and take on the work forecasted by Susskind. Those who fail to take seriously basic ADR education and practical training will find it difficult to function as a modern legal practitioner. Tania Sourdin argues that even those involved in transactional lawyering rather than dispute resolution or management will need to ‘get’ ADR because they must draft clauses that support it and negotiate using processes developed in ADR world.

One obstacle to this is the lack of a well-defined relationship between the practising and academic branches of the legal ADR professions. Current academic standards are not responding to the changes that have occurred in the justice system and this will have significant implications for the future development of the law curriculum. A recent study shows that both legal academics and practitioners believe that legal education could favour a more practical approach, including an emphasis on understanding and advising on ADR methods, rather than marching down the well-worn path of escalating threats to litigate and inflating claims about possible trial outcomes.

Indeed, the National Alternative Dispute Resolution Advisory Council (NADRAC) has also proposed that ADR and negotiation should be a part of all undergraduate university courses in a diverse range of areas, including business, health and social welfare. This proposal is out of concern that law students will be left behind while graduates from other disciplines will become increasingly skilled and better able to deal with conflict. At worst, these law students will find that their education and training has equipped them for a limited role in the area of disputes, with out-dated skills and diminishing relevance as lawyers within society.

Many law schools have made considerable changes to their curricula in light of the NADRAC proposal and ADR is now being taught in most Australian law schools, either as a separate subject or as part of civil procedure or litigation. One of the main benefits of the compulsory teaching of ADR is in the impact that it will have on the quality of future lawyers in responding to the changing justice system and the changing needs of clients. However, in most cases, ADR courses are an elective in a law degree, or feature as a small subsection of a course and thus it reaches only a minority of students.

Changes to the legal education environment are needed in order to support ADR teaching in comprehensive way, rather than at the margins. This will ensure that there is a greater chance that legal education in Australia will continue to be both relevant and supportive of dispute resolution in its traditional and alternative forms.
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Globo Terráqueo Pakistán

Judicial officers asked to apply ADR to reduce backlog. SOURCE: Pakobserver

Judge of Supreme Court of Pakistan, Justice Khilji Arif Hussain Monday urged young judicial officers to apply mediation and other means of AlternativeDispute Resolution to ensure speedy justice and reduce backlog of cases.

He expressed these views in the inaugural ceremony of weeklong orientation course on “New Laws inclusive of a two-day workshop on mediation as an ADR Mechanism “in collaboration with Karachi Centre for Dispute Resolution (KCDR) for Civil Judges/Judicial Magistrates from all overPakistan including Azad Jammu and Kashmir and Gilgit-Blatistan here in the Federal Judicial Academy (FJA).

He said, “Alternative Dispute Resolution Mechanisms may be new to the western world but these mechanisms are deep- rooted in our society and culture. Various informal means are used by the elders and the notables in the rural areas of Pakistan to settle the disputes.”

He said “Panchayat system” has been at work in various parts of Pakistan but unfortunately this system has been ruthlessly misused. At some places, the poor and the vulnerable people have become the victim of this system and more strong and more influential people have remained above this system. Referring to the glorious Surah An- Nisa of the Holy Quran , he said, “Islam recognizes mediation between the husband and wife in a conflicting situation in order to restore peace. This lengthy Surah relates to legal aspect of “reconciliation between husband and wife.”

saudi-egypt

Joint arbitration center to drive Saudi-Egypt trade. SOURCE: Arab News

The Saudi-Egyptian Business Council aims to set up a joint arbitration center before January to expedite the resolution of business disputes, said a top official.
The move is expected to increase Saudi investments in Egypt.
“We would like to increase our investments in Suez Canal for establishing storage, packaging and re-export facilities,” said Abdullah bin Mahfouz, chairman of the council.
Saudi investments in Egypt’s industrial and tourism projects are estimated at $ 8 billion while real estate investments of Saudi individuals and families amounted to $ 5 billion.
Saudi Ambassador to Cairo Ahmed Kattan said businessmen in both countries are keen to increase their investments.
Kattan said the Egyptian government was committed to tackling various issues faced by Saudi investors.
“The Cairo government has already solved some problems and we expect the remaining problems solved shortly,” the ambassador said.
Bin Mahfouz commended the efforts being made by the Egyptian Investment Ministry to facilitate investments of Saudi nationals and solving their outstanding problems. “The single window system introduced by the ministry will save a lot of time for Saudi investors.”