COURSEWORK QUESTION
In international commercial contracts, it is not unusual for parties to provide that, should a dispute arise, the parties will first seek to resolve their dispute through mediation within a prescribed time-frame. Should their mediation attempt fail, the contract then provides that the parties shall, in a second phase, attempt to resolve their case via arbitration or litigation.
PART 1
In the English legal system,
a. what is the purpose of a commercial mediation process and how would you go about describing this process - its likely organisation, the position of the parties, the role of the mediator, its “procedure”, the course and phases of the mediation process? And,
b. what would be, if successful, the legal nature and exact qualification given to a mediation process’s outcome? How does it bind the parties?
PART 2
Assuming that the result of the mediation process proves unsuccessful and that the parties enter into a subsequent arbitration:
c. Can the parties under English law still decide to settle their dispute during the course of the arbitration process? How would you legally qualify the decision issued by the arbitral tribunal as a result of the parties’ settlement, and
d. Can such a decision be easily enforceable internationally, beyond the borders of the United Kingdom, and under the provisions of which international instrument (and why)?
STUDENT REQUEST for Part 1
In addition to the Expert Opinion, the construct of the answer to PART1 and PART 2 shall consider the applicability of the following in answering the respective parts:
a. Define Mediation under English law
• refer to the legislation that governs the practice and enforcement
• how is the process set up
• speak to the fact that the mediator has to be qualified and conduct themselves in accordance with the EU code of conduct
b. Explain the binding process
• how is it in enforceable under UK law
• refer to a case as an example of bound mediation.
STUDENT REQUEST for Part 2.
c.
• define arbitration; explain how it is differs from mediation
• going from mediation to arbitration (refer to cases where this happened)
• what does English Law state of about settling during arbitration process
• what supporting opinions from case law; decisions by arbitral decisions would use to justify ‘if the parties can settle dispute during arbitration process’
d.
• look at the New York Convention and the Panama Convention
• what governs the decision to be enforced internationally
• what may not allow the decision to be enforced internationally. i.e. If parties are not members to the conventions.
Please note:
All essays must be typewritten, fully referenced and include a bibliography and must follow the RGU academic guidelines i.e. adhere to the word limit, have a clear structure and should be professionally presented.
Essays must be free of plagiarism or borrowing from other academic sources and be the student’s own work.
“Plagiarism is the practice of presenting the thoughts, writings or other output of another or others as original, without acknowledgement of their source(s). All material used to support a piece of work, whether a printed publication or from electronic media, should be appropriately identified and referenced and should not normally be copied directly unless as an acknowledged quote. Text translated into the words of the individual student should in all cases acknowledge the source.”
Before submitting assignments, you should check through it to ensure that:
• all material identified as originally from a previously published source has been properly attributed by the inclusion of an appropriate reference in the text;
• direct quotations are marked as such (using “quotation marks” at the beginning and end of the selected text), and
• a citation has been included in the list of references at the end of the text.
The word limit is 2,800 words. The word count, exclusive of cover page, abstract, bibliography (Bibliography must show primary and secondary sources), references, and appendices must appear on the title page. A table of contents must be included in the answer.
The referencing for (footnotes and bibliography) should follow the OSCOLA 4th edition format, be consistent and neatly presented.
Please note the Lecturer’s GUIDELINES when answering the Assignment.
You should prepare an essay that provides articulated answers to the above questions. Your answers should contain references to suitable sources and reference material (legislation, case law, treaties, legal textbook, monographies, etc.) be supported by footnotes and demonstrate your advanced engagement with these sources in order to provide some well-argued, relevant and substantial answers to each of the above questions.