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Alternative Dispute Resolution in Business Contracts, especially mediation clauses

Mukhamediyev, Marat LU (2011) JAEM01 20111
Department of Law
Abstract
The alternative dispute resolution (the “ADR”) is an alternative dispute settlement procedure. It pursues the main objective to resolve the disputes arising between the parties to a contract in an amicable way with the aid of independent professionals or so-called neutrals. Nowadays the role of ADR is becoming more and more important, and the number of agreements containing ADR clauses is constantly increasing. One of the reasons for this growth is that the ADR is usually more effective and time-saving than the ordinary court proceedings. As the statistics reveals, 80 – 90% of the disputes being considered under ADR are successfully resolved.

The present paper examines the most popular technique for elective alternative dispute... (More)
The alternative dispute resolution (the “ADR”) is an alternative dispute settlement procedure. It pursues the main objective to resolve the disputes arising between the parties to a contract in an amicable way with the aid of independent professionals or so-called neutrals. Nowadays the role of ADR is becoming more and more important, and the number of agreements containing ADR clauses is constantly increasing. One of the reasons for this growth is that the ADR is usually more effective and time-saving than the ordinary court proceedings. As the statistics reveals, 80 – 90% of the disputes being considered under ADR are successfully resolved.

The present paper examines the most popular technique for elective alternative dispute resolution within the EU, that is mediation (conciliation). It focuses mainly on mediation process in civil and commercial disputes.

This thesis describes the tendencies of ADR development in the EU and the related provisions of the EU legislation, UNCITRAL Model Law on International Commercial Conciliation (2002), as well as other rules specified by business institutions providing ADR-related services, such as ICC and CEDR. It also makes comparisons between the US and certain MSs’ courts practice regarding the ADR issues. In addition, it considers the ADR in the light of the right to valid remedy (fundamental principle of the EU).

In order to give a deep insight into the topic, the paper describes also the ADR origin, its characteristics and applicability, as well as its advantages over litigation/arbitration proceedings that aimed at promoting ADR’s larger expansion to business conflict settlement procedures.

Furthermore, it brings up the important ADR issues that the parties to a dispute may come across in the course of ADR application, in particular, viability of the contract obligation to resort to ADR, potential adverse consequences for the failure to comply with such obligation, confidentiality of the ADR process, impact on the statute of limitation, and obstacles that may occur while enforcing the settlement.

Specific ADR clauses should be tailored for each particular transaction, taking into account the various factors and circumstances that may have an impact on the parties’ decision to refer to ADR. Therefore, guidance on the essential questions that are to be reviewed while drafting the ADR clauses in contracts are presented as well. (Less)
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author
Mukhamediyev, Marat LU
supervisor
organization
course
JAEM01 20111
year
type
H1 - Master's Degree (One Year)
subject
language
English
id
1970964
date added to LUP
2011-10-31 13:58:46
date last changed
2011-10-31 13:58:46
@misc{1970964,
  abstract     = {The alternative dispute resolution (the “ADR”) is an alternative dispute settlement procedure. It pursues the main objective to resolve the disputes arising between the parties to a contract in an amicable way with the aid of independent professionals or so-called neutrals. Nowadays the role of ADR is becoming more and more important, and the number of agreements containing ADR clauses is constantly increasing. One of the reasons for this growth is that the ADR is usually more effective and time-saving than the ordinary court proceedings. As the statistics reveals, 80 – 90% of the disputes being considered under ADR are successfully resolved.

The present paper examines the most popular technique for elective alternative dispute resolution within the EU, that is mediation (conciliation). It focuses mainly on mediation process in civil and commercial disputes.

This thesis describes the tendencies of ADR development in the EU and the related provisions of the EU legislation, UNCITRAL Model Law on International Commercial Conciliation (2002), as well as other rules specified by business institutions providing ADR-related services, such as ICC and CEDR. It also makes comparisons between the US and certain MSs’ courts practice regarding the ADR issues. In addition, it considers the ADR in the light of the right to valid remedy (fundamental principle of the EU).

In order to give a deep insight into the topic, the paper describes also the ADR origin, its characteristics and applicability, as well as its advantages over litigation/arbitration proceedings that aimed at promoting ADR’s larger expansion to business conflict settlement procedures. 

Furthermore, it brings up the important ADR issues that the parties to a dispute may come across in the course of ADR application, in particular, viability of the contract obligation to resort to ADR, potential adverse consequences for the failure to comply with such obligation, confidentiality of the ADR process, impact on the statute of limitation, and obstacles that may occur while enforcing the settlement. 

Specific ADR clauses should be tailored for each particular transaction, taking into account the various factors and circumstances that may have an impact on the parties’ decision to refer to ADR. Therefore, guidance on the essential questions that are to be reviewed while drafting the ADR clauses in contracts are presented as well.},
  author       = {Mukhamediyev, Marat},
  language     = {eng},
  note         = {Student Paper},
  title        = {Alternative Dispute Resolution in Business Contracts, especially mediation clauses},
  year         = {2011},
}