Summary Civil Procedure and Global Dispute Resolution Course Notes
0 view 0 purchase
Course
620298-B-6
Institution
Tilburg University (UVT)
Notes for the 3rd year Civil Procedure and Global Dispute Resolution course, part of the Business Minor.
Summary includes class notes, podcast notes and notes from readings for all weeks (1 -12)
Course Notes Civil Procedure and Global Dispute Resolution
Week 2
- Civil procedure: dispute between private entities
- How as opposed to what
- E.g. how to exercise right, how to lodge and appeal
- Importance of civil procedure
- If you master the procedure, you master the outcome
- Multinationals increasingly use civil procedure as a global market strategy tool
- Domestic national courts rule about global issues applying national civil procedural rules
- Alternative dispute resolution applies civil procedure rules
- Negotiation takes place ‘in the shadow of the law’ (= case law)
- “Best alternative after negotiation”
- Civil procedure as last resort
- Article 6 ECHR: right to a fair trial and ‘due process’ notion in arbitration
- Procedural justice or procedural fairness = happy litigants
- Supported by empirical evidence
- Parties more likely to accept outcome if procedural justice is met
- Factors in global dispute resolution
- Industrialisation
- Globalisation
- IT and social media
- Players
- Multinationals
- NGO’s/Civil society
- Globally operating law firms/lawyers
- Domestic Courts and Arbitral Tribunals
- Types of disputes
- B2S: State Investor Disputes (business to state)
- Emerging trend? – replace arbitration with international civil court system
- B2B: Commercial Disputes (business to business)
- Emerging trend? – English speaking Commercial Courts in non-English speaking
jurisdictions
- E.g. Frankfurt, Amsterdam, Paris - incorporation of English in some
courts
- B2C: Consumer Disputes (business to consumer)
- Emerging trend? – ODR/ADR and collective redress
- Traditional modes of dispute resolution
- Arbitration Tribunals (mediation)
- Domestic civil courts
- NOTE: there are no ‘World Civil Courts’ or International Civil Courts
, - Specific to national courts
Reading Notes
T.R. Tyler&H. Thorisdottir, ‘A Psychological Perspective On Compensation For Harm: Examining The
September 11th Victim Compensation Fund’, DePaul Law Review 2003, vol. 53, issue 2, Part V, p. 380-382
- Understanding of ‘fair’ procedure
- 4 elements influence fairness
- Is there opportunity to state case (voice/participation)
- Importance of participating in case as much as possible
- Feeling heard by authorities
- Are authorities neutral, honest and principled in decision making
- Authorities demonstrate evenhandedness or impartiality
- Are authorities benevolent and caring (trustworthiness)
- Are people involved treated with dignity and respect
- Restoring status of victim
Week 3: Dispute Resolution by Adjudication
Frank E.A. Sander and Stephen B. Goldberg, Fitting the Forum to the Fuss: A User Friendly Guide to
Selecting an ADR Procedure, Negotiation Journal, Harvard Law School, Vol.10, Issue 1, January 1994,
pp. 49-68
- ADR: alternative dispute resolution
- Negotiation – allows parties to control process and solution
- If parties cannot agree, third party takes some control over process
- 2 types of third party processes
- Adjudication / imposing solution – performed by court or private adjudicator
(arbitration, private judge) - binding
- Mediation / helping parties achieve own solution
- Minitrial: presentation of evidence and arguments + high level principals on each side, then
negotiation between principals
- Presentation to mock jury - summary jury trial
- (early) neutral evaluation - brief early presentation leading to assessment early in case
- Client goal important in establishing appropriate ADR
- Opinion concerning merits of claim in order to establish claim strength - nonbinding
evaluative procedure (minitrial, summary jury trial, neutral evaluation)
- Example sexual harassment case - other people with same complaint - formal complaint,
can be used as precedent in other cases
- Prompt and inexpensive resolution usually preferred, maintains / improves party relationships
(mediation)
- Summary jury trial, neutral evaluation - less privacy (if neutral party is chosen by court)
- Summary jury trial and minitrial better at maintaining and improving party relationship than early
neutral evaluation
- If parties agree on rule for future cases, can turn into formal precedent
, - prospect of a victory in litigation is not reason enough for avoiding ADR
- Impediments / obstacles to settlement
- Poor communication
- Most likely best ADR process to overcome: mediation
- Need to express emotion
- Most likely best ADR process to overcome: mediation
- Informal atmosphere, full participation
- Different view of facts
- Most likely best ADR process to overcome: mediation, minitrial, summary jury
trial, early neutral evaluation
- Some form of adjudication may be required to establish facts
- Different view of legal outcome
- Most likely best ADR process to overcome: minitrial, summary jury trial, early
neutral evaluation
- Important principle
- Most likely best ADR process to overcome: mediation
- One or both parties unwilling to compromise a fundamental principle
- Involvement of personal aspect
- Constituent pressure
- Most likely best ADR process to overcome: mediation
- Differing political (?) views
- E.g. parties are institutions or groups
- E..g negotiator is staking political or job positions on getting a certain result from
dispute
- Mediator can act as scapegoat, take blame for outcome
- Linkage to other disputes
- Most likely best ADR process to overcome: mediation
The benefits of buying summaries with Stuvia:
Guaranteed quality through customer reviews
Stuvia customers have reviewed more than 700,000 summaries. This how you know that you are buying the best documents.
Quick and easy check-out
You can quickly pay through credit card or Stuvia-credit for the summaries. There is no membership needed.
Focus on what matters
Your fellow students write the study notes themselves, which is why the documents are always reliable and up-to-date. This ensures you quickly get to the core!
Frequently asked questions
What do I get when I buy this document?
You get a PDF, available immediately after your purchase. The purchased document is accessible anytime, anywhere and indefinitely through your profile.
Satisfaction guarantee: how does it work?
Our satisfaction guarantee ensures that you always find a study document that suits you well. You fill out a form, and our customer service team takes care of the rest.
Who am I buying these notes from?
Stuvia is a marketplace, so you are not buying this document from us, but from seller karolschlitt. Stuvia facilitates payment to the seller.
Will I be stuck with a subscription?
No, you only buy these notes for $27.69. You're not tied to anything after your purchase.
