Introduction to the litigation, arbitration and mediation

Кушевська Н.М.

Лихицька Ю.Г

MEDIATION & ARBITRATION

CONTRACT LAW

Київ – 2014

Укладачі: старший викладач кафедри іноземних мов за професійним спрямуванням УДУФМТ, Кушевська Н.М.

старший викладач кафедри іноземних мов за професійним спрямуванням УДУФМТ, Лихицька Ю.Г.

Рецензенти: Тимощук І.В.– к.п.н., доц., зав. кафедрою іноземних мов за професійним спрямуванням, УДУФМТ

Схвалено: на засіданні кафедри іноземних мов за професійним спрямуванням, протокол № від 25.04.14

Мета посібника – забезпечити розвиток навичок роботи з фаховою літературою та усного мовлення на теми, передбачені програмою з іноземних мов для факультету «Міжнародні відносини та правознавство».

Посібник складається з 2 уроків та додаткових текстів для читання за тематикою підручника. Система вправ забезпечує швидке та ефективне засвоєння студентами необхідних знань і вироблення стійких навичок фахової усної та письмової комунікації, роботи з англомовною правовою літературою.

Unit 7

MEDIATION & ARBITRATION

Section A

Warmer:

Skim the joke and express your opinion.

A man had been convicted of theft on circumstantial evidence. When the case was sent for appeal, he revealed to his lawyer that he had been in prison at the time of the crime committed.

-“Good Heavens, man”, said the lawyer.

“Why on the earth didn’t you reveal that fact at the trial?”

-“Well”, said the man, “I thought it might prejudice the jury against me.”

Section B

Reading and speaking

Before you read:

2. Discuss statements and quotations of well-known people. Do you agree to them or not. Express your own vision of this problem:

a) Thieves respect property: they merely wish the property to become their property that may more perfectly respect it.

(G.K.Chesterton, “The Man Who was Thursday”, 1908)

b) In business saving the pennies often means losing the pounds.

Reading

Read the text and decide whether these statements are true (T) or false (F).

1. The term litigation refers only to the hearing or a trial.

2. Mediation differs from arbitration in that the disputing parties are actively involved in the decision-making process.

3. International arbitration developed in response to the need to settle disputes involving more than one jurisdiction.

Text A

Introduction to the litigation, arbitration and mediation

This unit deals with the range of ways of handling legal disputes. Lawyers are often perceived as spending all their time in court, involved in litigation (lawsuits and criminal trials), but of course that is only a small part of what they do. They are far more likely to try to avoid litigation, either by reaching an out-of-court settlement with the other party, or by using one of the methods of alternative dispute resolution (ADR).

There are two main types of ADR: mediation and arbitration.

Mediation involves an independent third party working with the disputing parties to help them negotiate and reach agreement. The disputing parties have to find their own compromise: the mediator has no power to impose decisions. This is especially useful if, for example, the parties are keen to preserve a good working relationship during and after the dispute (e.g. an employer and employee, or a supplier and customer). The mediator can help by brining up ideas and suggesting compromises that the disputing parties would be too guarded to mention. He/she can also defuse potential conflicts, and help the parties to remain focused on the aim of the negotiation: to find a solution which is acceptable to both parties.

Arbitration also makes use of an impartial third party, but in this case the arbitrator (or arbiter) has the power to impose binding judgments on the parties. This procedure is more formal and confrontational than mediation, but less so than litigation. Arbitration is useful when the disputing parties are more interested in the rights and wrongs of the case than in reaching a compromise. The hearings are generally quicker and less bureaucratic than full trials. Arbitration is often used to resolve commercial disputes, particularly those involving international commercial transactions. The arbitral process for resolving disputes under international commercial contracts is referred to as international arbitration. Arbitration is also used in some jurisdictions to resolve other types of dispute, such as those involving employment-related issues.

Litigation is the most formal option, and also potentially the most expensive and time-consuming. It includes all stages before, during and after a trial. It is usually desirable to have both a mediation and an arbitration clause in your agreement. All partners know that they’ll try mediation first. Only if that doesn’t work out can an outside arbitrator impose a decision.

4. Learn the following words and expressions:

acknowledgment	визнання
to apply	застосовувати
commercial enterprise	комерційне підприємство
international associations	міжнародні товариства
legal entity	суб’єкт права
participants	учасники
to regard	брати до уваги, стосуватися, мати відношення
arbitration tribunal	третейський суд
irrespective	безвідносний
to entrust	довіряти, доручати
claim	позов
counter-claim	зустрічний позов
acquisition	надбання, здобуток
to deviate	відхилятися, ухилятися
court interference	втручання суду

5. Read and translate the text:

Text B

The Law of Ukraine «On international commercial arbitration"

The present Law proceeds from the acknowledgment of usefulness of arbitration as a means which is widely used to settle disputes which arise in the sphere of international trade, and the need to regulate the international commercial arbitration on a legal basis. This law takes due account of provisions on such arbitration which are in international treaties of Ukraine as well as of the model act adopted in 1985 by the UN commission on international trade law and approved by the UN General Assembly for possible use by states in their legislation.

Section 1.General provisions.

Article 1.Sphere of application.

1. The present Law shall be applied to international arbitration in case the arbitration is located on the territory of Ukraine. The provisions stipulated by articles 8, 9, 35 and 36 of the present Law shall also be applied in those cases when the arbitration is located abroad.

2. The following disputes shall be referred to international commercial arbitration, under the agreement of the parties disputes on contractual and other civil and legal relations which arise in the process of maintaining foreign trade and other international economic contacts when a commercial enterprise of at least one party concerned is located abroad and also disputes of enterprises with foreign investments and international associations and organizations created on the territory of Ukraine, with one another, disputes among their participants and their disputes with other legal entities of Ukraine.

3. For the purposes of item 2 of this Article, in case:

- the party has more than one commercial enterprise, the one which has the closest relation to the arbitration agreement shall be regarded;

- the party has no commercial enterprise, its constant place of residence shall be taken into account.

4. The present Law shall not affect any other Law of Ukraine on the strength of which certain disputes cannot be referred to arbitration or can be referred to arbitration only in keeping with provisions other than those stipulated by the present Law.

5. If the international agreement of Ukraine establishes other rules than those stipulated by the present Law on arbitration, the rules of the international agreement shall be applied.

Article 2. Definition of terms and rules for their interpretation.

For the purposes of this Law:

· arbitration - any arbitration tribunal irrespective of the fact whether it is created to settle a certain dispute or is administered on a permanent basis by an arbitration establishment, in particular by the International Commercial Arbitration Court or the Sea Arbitration Commission under the Chamber of Commerce and Industry of Ukraine;

· «the court of arbitration» - one arbitrator or arbitration board;

· «court» - a relevant body of the judicial system of the state;

· the term «commercial» shall be interpreted loosely and includes those issues which arise from all kinds of trade relations - both contractual and not. Trade relations include the following agreements but are not limited by them; all kinds of trade agreements on shipment of goods or rendering services or exchanges of goods or services; agreements on the distribution, trade representations factoring operations; leasing; engineering; construction of industrial objects; rendering of consultation services; purchase and sale licenses; investments; financing; banking services; insurance; agreements on exploitation and concessions; joint ventures and other forms of industrial or business cooperation; transportation of goods and passengers by air, sea, railroad or by road;

· when any provisions of the present Law, with the exception of Article 28, gives to the parties a possibility to adopt decisions on certain issues, the parties can entrust the adoption of this decision to any third party, including establishments;

· if any provision of the present Law contains preference to the fact that the parties have agreed or can agree or in any other form suggest a reference on the parties’ agreement, such an agreement shall include any arbitration regulations stipulated in this agreement;

· when any provision of the present Law, with the exception of Paragraph 1 of Article 25 and item 2 of Article 32, contains a reference to a claim, it shall be applied also to a counter-claim and when it contains a reference to objection it shall be applied also to objection to such a counter-claim.

Article 3. Acquisition of a written notice.

1. If the parties haven't agreed otherwise:

- any written notice is regarded as obtained if it is delivered to an address in person or at the address of its commercial enterprise, at the address of his permanent residence or at his mail address; when the latter cannot be determined after making reasonable inquires, a written notice is regarded as obtained if it has been sent to the latest known address of the commercial enterprise,permanent place of residence or at the mail address by a registered letter or by any other means which stipulates registration of an attempt to deliver this notice;

- a notice is regarded as received on the day of its delivery.

2. Provisions of this article shall not be applied to notices in the course of trials.

Article 4.Renunciation of the right to objection.

The party which knows that any provisions of the present Law have been deviated from or any requirement of the arbitration agreement has not been fulfilled but still continue to take part in the arbitration tribunal without making a protest against such non-fulfillment with no justified delay and when a certain term is stipulated for this, then within this term, the party has renounced its right for objection.

Article 5. Bounds of court interference.

On issues which are regulated by the present Law no court interference shall take place, with the exception of cases when it is stipulated by the present Law.

Article 6. Bodies for fulfillment certain functions of promotion and control of arbitration.

1. The functions listed in items 3 and 4 of Article 11, item 3 of Article 13, Article 14 shall be fulfilled by the president of the Chamber of Commerce and Industry of Ukraine.

2. The functions listed in item 3 of Article 16 and item 2 of Article 34 shall be fulfilled by regional, city (the cities of Kyiv and Sevastopol) courts, by the Supreme Court of the Republic of Crimea at the place of the arbitration location.

Дата добавления: 2015-10-30