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In this report, some litigant procedures are suggested that assist the people to resolve the disputes without entering court. This Alternative dispute resolution system is described and its advantages, and disadvantages are described in the report briefly. The courts and trial courts are overloaded with a lot of cases regarding different subject matters so, to solve this problem some ADR system methods are introduced and implemented. With the implementation of these methods, disputes can be resolved easily, rapidly, and effectively. Critical discussion on the limits of party automation including investment, commercial, and consumer arbitration is also detailed in the report. Critical evaluation of the EU online dispute resolution system and platform is considered and described in this article. Some recent developments regarding the civil justice system are also detailed in the report.
1. Critically discuss how English courts encourage litigants to settle their disputes in advance of the trial.
Conflicts and disputes can be resolved in many ways including negotiation, mediation, arbitration, and litigation, conciliation. Alternative dispute resolution refers to any method of settling the dispute outside the courtroom. Under conflict resolution, the dispute can be resolved by a team rather than attacking each other[1]. Settle the dispute is refers as solve any issue or problem that is arisen between the parties. Any dispute or issue can be settled outside the court by putting the issue into the perspective, maintaining effective and strong records, appeal to a sense of fairness, the system of the UK encouraged the people to settle their disputes out of the court. It the designed in this manner that it can resolve disputes outside the courtroom. In any case, settlement cannot be achieved with the help of negotiation then it can also be settled through a mediation procedure. Many people are unaware of the effectiveness of the mediation process in resolving disputes. Litigation is an important process in every country because many small cases can also deteriorate relations, damage reputation, and wastage the time, money, and skills of persons. So, to protect the persons and their reputation, relation, and things people must seek the litigation procedure for resolving their disputes.
All courtrooms and other courts are full of a lot of cases and they are not having enough time to resolve any new cases, there are a lot of pending cases in the court. People wish for speedy proceedings, a fair trial, and justice from the court or any other method of resolving the disputes. So, there are many dispute resolution systems or methods are introduced for people. U.S. corporations spend a lot of money in a year on litigation attorneys[2]. Disputes that arise in any business affects the business adversely as it distracts the mind of the employer or owner and business cost is also get affected due to any dispute. It is also considered that the lawyer's fees and proceeding expenses are also very less in these dispute resolution systems. It can be concluded that in this system lawyers presented all required and presenting the evidence that might help the opposing parties and their clients during proceedings. These kinds of methods are developed so that no evidence and any matter remain ignored by the lawyer in any proceeding due to lack of timing[3].
Attorneys and other lawyers conducted or performed their work with efficiency, temperament, training, professional duty, and they also consider the client's expectations. Under this system, every lawyer has the responsibility to satisfy both clients with their conduct and proceedings, the final decision for their dispute. An alternative dispute resolution system is a formal technique and it is accepted by business practices. In today's time, most lawyers are implementing or using the alternative dispute resolution system. The most common forms of ADR are arbitration, conciliation, mediation, the rent a judge program, summary jury trial, and mini trial, and these techniques can be used combinedly to resolve any case or matter. Arbitration is the method that provides the decision taken by their party for the disputed parties and that decision is binding on both the parties. Many business parties already make the clause for arbitration when any issue or dispute arises between them. So, after emerging any dispute the parties can also seek the assistance of an arbitration method[4] .
In the arbitration, method parties can select one or more arbitrators for the finalization of the dispute, and the decision will be made after considering all the evidence and arguments of the parties. United states arbitration act of 1925 makes the agreement legally enforceable. The mediation procedure is fully different from the arbitration, the third party is the mediator for both the parties and his decision is not enforceable. The main aim of mediation is to assist the parties to resolve their disputes[5]. So, the functions and conduct of the parties are varying and according to the personalities and wishes of the parties. Some functions are followed by the mediator as a request to the parties to discuss the matter with each other, help them to understand the essence of mediation and its nature, help the parties to agree on the agenda, set an agenda for the parties, provide a suitable environment for the negotiation, assist the parties to understand the overall issue and matter of dispute, help the parties to identify their proposals, help them to negotiate and suggested the best possible solution for the problem. There are many kinds of issues that can be resolved as international political disagreements and labor disputes the landlord, tenant, consumer, and medical malpractices. Implementation of mediation procedures is increased rapidly in the business world in some last years[6].
The rent a judge program is a novel element of arbitration. Under this procedure, both the parties select the retired judge to hear the case and that judge acts as an arbitrator. In traditional arbitration, retired judges are also used. Under the rent, a judge program mostly deals with normal court trials. Along with this, the decision of the judge is considered a real court judgment according to the law. The experiment has enjoyed great part of success and acceptance in the legal system where it has been identified, this will widespread so rapidly[7].
The summary jury trial is considered where both the parties are unable to settle their disputes rapidly due to a huge gap in their differing expectations of how a jury will consider the claims made by the parties. For the solution to this problem, federal district judge Lambros invented the summary jury trial procedure. And under this procedure, it is stated in what manner the claims are perceived by judges and evaluated. This procedure is also implemented in many states and courts [8].
2. Critically discuss the limits to party autonomy in the following types of arbitrations: investment, commercial, and consumer arbitrations.
It is well established principle that means parties are free to select any of the conditions in the arbitration agreement to solve their issue or problem without considering the place, law, rules, procedures to follow. The limitation of arbitration can be concluded as challenging an arbitral award under the arbitration and conciliation act, of 1996. It provides a specific period of three months with the concession of 30 days. There are some different kinds of arbitration domestic arbitration, international arbitration, international commercial arbitration, fast track arbitration, and institutional arbitration. Party autonomy is a doctrine that presents a central element of international commerce. Under this doctrine, parties are free to select the applicability of laws to govern the dispute that is having an international contract. It is the central pillar of arbitration and it is very important in international autonomy. It provides the facility to the parties the liberty to maintain their contractual relationships according to them. In most arbitration clauses parties are not able to sue each other. even they are using the arbitration process to resolve their dispute to avoid litigation [9].
Arbitration can be classified into two types mandatory and voluntary. In some cases, the arbitration becomes compulsory because disputed parties already have mentioned in the agreement that if any future dispute will arise that only will be solved through arbitration or it can be implemented on the court’s order otherwise parties can implement any other method to resolve their disputes. Parties can enter into arbitration proceedings in some ways as judicial, arbitration, contractual, and stipulation. Party autonomy in private international law can be described as the power of parties to involve in any agreement in which their dispute will be resolved or claims are to be discussed, some legal relationships will be maintained. The principle of contractual autonomy provides the freedom to the parties to select their terms and conditions of contract but there are also some limits on it as if they violate any legal rule of contractual regime, morality, or public order[10].
Selecting their arbitrator is also an important benefit for the parties. Parties are free to choose their arbitrator and they can select the person who is fully qualified and experienced according to the matter concern to the dispute. The decision made by the arbitrator is called arbitral award and it is final, also cannot challenge on the merits [11].
Complete autonomy can be termed as the quality or state of being self governing. According to these companies, corporations, and employees can easily hide their disputes in this manner. Litigation procedure is quite different from arbitration as under litigation the parties enter into the court for resolving their dispute and both the parties presents their claims and a decision is made by the judge but in the arbitration procedure it is considered as a private process in which both the party free to select the arbitrator who renders the final decision. There are some conditions of the arbitration agreement that must be completed for any arbitration proceedings such as it must be in writing, must comply with the requirements of a valid contract, must be in respect of the dispute, and parties must agree on the number of arbitrators. (Tahura, U.S., 2019)
This principle is like a guiding principle in determining the process that is to be implemented in international commercial arbitration. There is a lot of formalities and extra proceedings in the court trial that are not required sometimes so, parties wish to choose other options like arbitration and private autonomy which they can choose according to them. Party autonomy has received acceptance and identification in almost all national jurisdictions. The concept of party autonomy was articulated in the central legislature. This convention took place in 1958 but came into force on 7 June 1959. It also recognizes the party autonomy in the agreement that was made in writing by the parties and they agree to submit the issues or any differences. There are some questions related to the party autonomy that it is absolutely without limitation or not? It is myth or reality. But the autonomy is subject to various limitations. As there are many rules and fundamental principles that are mandatorily followed by parties and they cannot violate these rules. There are many other rules regarding private autonomy[12].
3. “There will be a cohesive online funnel with a large number of cases starting online and being resolved by integrated ADR mechanisms leaving a few to enter the court system -also online and ultimate judicial resolution where necessary. This will, I emphasize, be transformational in terms of access to justice" G. Vos, London International Disputes Week 2021: Keynote Speech (10 May 2021). Discuss the above quote taking into consideration recent developments in the English Civil Justice System.
The cases are dealt with in county courts in England and Wales but some specific cases are treated in the high court. English legal system consists of civil law, criminal law, and non statutory civil law[13]. The main purpose of the civil justice system is to provide a settlement facility for disputes that arises between the parties of people and between corporations and people. After the Norman conquest of 1006, the common law of England was created at that time. There are some sources of English law such as primary sources can be considered a statement of the law and the primary sources can be categorized further into two types legislation and case law. Civil justice provides a person compensation for a wrong done to him. This system also made some impact on the criminal justice system. Civil justice can be defined as a manner for people to attain some fair and justifiable solutions when they have been harmed by another person or their business. Some elements that make the civil justice system more effective as good quality regulations, timely and effective application of policies, honesty in the public sector, people can also freely negotiate for lawyer's fees[14].
The English system is very dynamic in nature. There have been many great changes has occurred during some past years. These changes have been seen in two phases according to the first phase in which changes were introduced during the labor administration that was led by Tony Blair and Gordon Brown. The second phase was introduced by the conservative administration that was led by David Cameron. Some changes were made in the first phase:
Establishment of the ministry of justice, replacing the department of constitutional affairs, which was priorly Lord Chancellor's department.
Shifting the responsibility of offender management that is regarding prisons and probation from the home office to the ministry of justice.
Ensuring the position of secretary of state for justice as a member of the house of commons of the house of Lords[15].
Develop a legal service commission to provide legal aid to the poor, and also establishes some new methods for legal services[16].
Shifting the judicial functions of the House of Lords and for this establishes the supreme court.
Developed the tribunal services that are merged with the court services.
Developing the judicial appointment commission.
Establishment of a legal service board that assists to regulate the legal professionals and encourages some innovations in the rendering of legal services.
There was a system developed for dealing with the complaints against lawyers and that system was a legal service ombudsman and rationalizing procedures.
Some changes were also introduced in phase second as:
During this phase mainly some local police authorities were replaced with some elected police and crime commissioners[17].
Establishment of the college of policing.
Replacing the existing agencies with a national crime agency.
Reformation of the county court.
Established the family court.
Established a new court for the hearing of international commercial disputes of people.
There are some changes were also made to labor administration.
In this phase, the legal aid system was restricted and the legal service commission was abolished which was replaced with a legal aid agency this operates its working in a more regulated manner.
The pay of legal aid practitioners has been reduced[18].
The changes in the English civil justice system are constant, it is automatic development of common law due to including new developments and policies. Access to justice was also a proposal for changes that includes the reforms of civil justice that help to combat chief problems of cost, delay, and complexity. There are many unregulated and uncontrolled nature litigation procedures implemented in the country. So, controlling these activities and functions of litigation procedure some different fundamentals were needed to develop[19]. The new civil litigation system presents the avoidance of litigation, if possible, it will be more adversarial and cooperative, litigation procedure will be simple and easily understandable, the timing consuming in litigation will be shorter and certain, the cost of the litigation process will be affordable, reasonable and predictable.
Many other changes were made in the English civil justice system to render the most appropriate services to society. The civil justice system is the public good and the judiciary and legal profession are the main persons in the civil justice system for its success domestically and internationally. The arbitration procedure or method also enhanced the strength of the English courts. Changes were done at each level as substantive law, procedural law, delivery of justice.
4. Critically discuss whether the EU online dispute resolution (ODR) platform has increased access to justice for EU consumers and how does it compare with other consumer ODR platforms.
The European Commission provides the European online dispute resolution system that accesses the quality dispute resolution tools that makes online shopping safer and fair for the people. There are some benefits of ODR as it is cost effective, speedy, and convenient procedure. But some disadvantages of it can be as impersonal, and it can also create a great difference between parties and mediators. Under this system, parties can settle their disputes virtually and they need not go personally anywhere to resolve their disputes. But the decisions made through this process under a uniform domain name dispute resolution policy are not effective and binding on the parties. In this system, all online traders, retailers in the EU, Iceland, Norway are under obligation to render easily accessible links and platforms to the ODR to contact others[20].
Resolve directly with the consumer
In this system, the consumer can select the details that are to be shared in the complaint document and it can be reviewed before the official submission of the complaint. Customer is also able to share the images of the product through the dashboard directly and messages can also be shared via the dashboard. (Hsieh, M. T., et al 2021)
Resolve through a dispute resolution body
Under this customer wishes to resolve the complaint with the help of a dispute resolution body. If any notification is identified for a complaint, then it ensures that the consumer would like to address the issue to an authorized dispute resolution body or structure. These bodies are also listed on the ODR platform and they also collaborate with high quality standards and independence. It is a dispute resolution body that acts as a third party and helps consumers and traders to resolve their issues in an inoffensive manner. This method is much cheaper and speedy rather than to go court and solving the dispute.
Trade obligations
If any person trades or business in the EU, Norway, and Iceland then he has to follow all the required or established obligations regarding the ODR platform. These regulations are implied to all online traders whether they use the ODR platform or not. The customer needs to provide a proper email address on the website and only providing an interactive form is not sufficient. It is also necessary to provide a link from the website to the online dispute resolution system.
Under this system, if any person bought any online goods or services in an EU country then he has the option to file a complaint online if he has found any dispute with the product. Everybody has their own rules and procedures in this system that must be followed by the parties. There are some fundamental principles regarding the ODR system such as member states must put their confidence and trust in ODR. This system must not create any restrictions on access to justice. There should be general rules and regulations, the procedure should be implemented that is conducted in the court until any other specific nature of a particular ODR mechanism requires. Parties regarding disputes using this mechanism should be secure with the method[21].
Access to justice
This system can be easily accessible for the consumers as they can understand it without any issue, it is affordable, and user friendly for the consumers so, they can implement this system comfortably. Parties must be informed in what manner the ODR system operates and filing application method, tracking the proceedings, access the decisions made by the system. Implementation of ODR must be advantageous for both parties regarding the dispute, this ODR system must be designed and implemented by internationally recognized technical standards so, most people can access and use these standards. The cost of ODR should not be higher than the normal court hearing fees or expenses. Under this method parties also must be informed about all mechanism that is implemented in the proceedings [22].
Equality of arms
According to this method or procedure, no one can remain prejudiced from the benefits or remedies regarding their right due to using the ODR proceedings. It is considered an independent and impartial adjudicative procedure. In this method, disputed parties must contain all access to the documents and materials that are to be used in the case, all material and information submitted by the other party. Under this method, parties should be allowed to present such evidence in a manner that does not create any disadvantage for them. Both the parties must have sufficient opportunities to present their case and evidence regarding the case. ODR should respect the principles of legal certainty and the safeguarding of legal expectations of the parties. The outcomes that render from the ODR must be transparent and there should not be any interference from others.
There must be sufficient reasons to access the final decision using the ODR system, this decision should be implemented and enforceable. This national law permits the automated decision and these kinds of decisions are open for review by the judge. There should be proper transparency and clarity in the design and operation, of the function of the ODR mechanism. The language of the ODR mechanism should be clear and not vague. This mechanism should guarantee proper and effective manners to ensure public scrutiny of proceedings. The parties should not get deprived of requesting an oral hearing before at least one level of jurisdiction. ODR should be designed effectively and clearly that contained the final judgment, other decisions or judgments, any other notifications in clear and plain language that can be easily understood by parties. Both the parties related to the dispute should be aware of and have the ability to access all the information and rules regarding ODR.
A proper degree of online protection of ICT items, administrations, and cycles working with ODR ought to be guaranteed to meet the necessities. Articles 6 and 13 of the European Convention on Human Rights guarantee the essential trust and trust in ODR systems. The degree of online protection of ICT items, administrations, and cycles working with ODR ought to be viewed as suitable when shields are given against:
unapproved admittance to private information.
the undesirable change or cancellation of information.
the specialized inconceivability to get to the framework and the information contained in that for the individuals who ought to approach.
vulnerability over the character of the adjudicator and different experts included in ODR procedures.
character extortion by parties.
Conclusion
The abovementioned report is stated about the encouragement of English legal courts to litigants for settling disputes that are arising between parties. The meaning of the English legal court and its main elements, fundamental functions are also mentioned in the report. Some methods for resolving the disputes out of court are also mentioned in the report in detail that helps the people to solve their issues without going to court. In recent time courts are overloaded with many pending cases in that condition they are not able to solve the other new disputes rapidly and effectively for solving this issue some Alternative dispute resolution methods are also described in the report that helps to resolve the matter quickly and efficiently. English courts are also encouraged for settling the dispute with some ADR methods and their advantages to the people. The meaning and function of party autonomy and limits or restriction made upon this are also mentioned in the report.
This article also explained some recent developments that were made in the English civil justice system and their impacts on people. Some necessary functions of the English justice system and its continued changes in the legal system are also provided in the report. At the end of the report a critical review of the EU online dispute resolution system that enhanced the justice for EU consumers and a comparison of the ODR platform with other consumer ODR platforms.
References
Ahmed, M. and QUEK ANDERSON, D., 2019. Expanding the scope of dispute resolution and access to justice.
BANCIU, D., PETRE, I., SMADA, D. and SANDU, I., 2019. Online system for assessing the implementation of the Digital Agenda in Romania. Romanian Journal of Information Technology and Automatic Control, 29(3), pp.7-18.
Biard, A., Hoevenaars, J., Kramer, X. and Themeli, E., 2021. Introduction: The Future of Access to Justice—Beyond Science Fiction. In New Pathways to Civil Justice in Europe (pp. 1-20). Springer, Cham.
Caplan, P. ed., 2020. Understanding disputes: The politics of argument. Routledge.
Duffy, M., Coleman, A. and Nichol, M., 2021. Mapping changes in the access to civil justice of average Australians: An analysis and empirical survey. Adel. L. Rev., 42, p.293.
Engin, Z. and Treleaven, P., 2019. Algorithmic government: Automating public services and supporting civil servants in using data science technologies. The Computer Journal, 62(3), pp.448-460.
Governatori, G., Idelberger, F., Milosevic, Z., Riveret, R., Sartor, G. and Xu, X., 2018. On legal contracts, imperative and declarative smart contracts, and blockchain systems. Artificial Intelligence and Law, 26(4), pp.377-409.
Hristov, N., Streblau, M.J. and Dimova, T., 2021. Online System for Monitoring and Analysis of the Operation of a Small Photovoltaic Plant.
Hsieh, M. T., Lu, L. H., Lin, C. W., & Chen, Y. W. (2021). Correlation between malpractice litigation and legislation reform in Taiwan over 30 years. International Journal of General Medicine, 14, 1889.
Islam, S. and Sultana, R., 2019. The effectiveness of alternative dispute resolution in Bangladesh: A critical analysis. International Journal of Multidisciplinary Research and Development, 6(3), pp.108-109.
Kyriakides, N., 2019. Cyprus Civil Justice System Reform: Developing a National Identity. Cyprus Review, 31(1), pp.31-52.
Luzon, G., 2018. Judicial Conflict Resolution in Plea Bargaining as the Golden Mean Between the Adversarial and Inquisitorial Legal Systems. Cardozo J. Conflict Resol., 20, p.597.
Menkel-Meadow, C., 2018. Ethics in alternative dispute resolution: New issues, no answers from the adversary conception of lawyers’ responsibilities (pp. 429-476). Routledge.
Muhamad, M.S., and Movement, S.V.Y., 2018. Alternative Dispute Resolution in India and the United States: A Comparative Analysis and Recommendations to Improve Efficiency and Effectiveness in Indian ADR.
Partington, M., 2021. Introduction to the English legal system. Oxford University Press.
Rabinovich-Einy, O. and Katsh, E., 2019. Blockchain and the inevitability of disputes: the role for online dispute resolution. J. Disp. Resol., p.47.
Rule, C., 2020. Online dispute resolution and the future of justice. Annual Review of Law and Social Science, 16, pp.277-292.
Schmitz, A. and Rule, C., 2019. Online dispute resolution for smart contracts. J. Disp. Resol., p.103.
Tahura, U.S., 2019. Does Mandatory ADR Impact on Access to Justice and Litigation Costs?. Australasian Dispute Resolution Journal, 30(1), pp.31-8.
Tan, V., 2019. Online dispute resolution for small civil claims in Victoria: A new paradigm in civil justice. Deakin Law Review, 24(2019), pp.101-138.
Verreycken, Q., 2019. The power to pardon in late medieval and early modern Europe: New perspectives in the history of crime and criminal justice. History Compass, 17(6), p.e12575.
[1] Ahmed, M. and QUEK ANDERSON, D., 2019. Expanding the scope of dispute resolution and access to justice.
[2] BANCIU, D., PETRE, I., SMADA, D. and SANDU, I., 2019. Online system for assessing the implementation of the Digital Agenda in Romania. Romanian Journal of Information Technology and Automatic Control, 29(3), pp.7-18.
[3] Biard, A., Hoevenaars, J., Kramer, X. and Themeli, E., 2021. Introduction: The Future of Access to Justice—Beyond Science Fiction. In New Pathways to Civil Justice in Europe (pp. 1-20). Springer, Cham.
[4] Hristov, N., Streblau, M.J. and Dimova, T., 2021. Online System for Monitoring and Analysis of the Operation of a Small Photovoltaic Plant.
[5] Caplan, P. ed., 2020. Understanding disputes: The politics of argument. Routledge.
[6] Duffy, M., Coleman, A. and Nichol, M., 2021. Mapping changes in the access to civil justice of average Australians: An analysis and empirical survey. Adel. L. Rev., 42, p.293.
[7] Engin, Z. and Treleaven, P., 2019. Algorithmic government: Automating public services and supporting civil servants in using data science technologies. The Computer Journal, 62(3), pp.448-460.
[8] Governatori, G., Idelberger, F., Milosevic, Z., Riveret, R., Sartor, G. and Xu, X., 2018. On legal contracts, imperative and declarative smart contracts, and blockchain systems. Artificial Intelligence and Law, 26(4), pp.377-409.
[9] Hsieh, M. T., Lu, L. H., Lin, C. W., & Chen, Y. W. (2021). Correlation between malpractice litigation and legislation reform in Taiwan over 30 years. International Journal of General Medicine, 14, 1889.
[10] Islam, S. and Sultana, R., 2019. The effectiveness of alternative dispute resolution in Bangladesh: A critical analysis. International Journal of Multidisciplinary Research and Development, 6(3), pp.108-109.
[11] Kyriakides, N., 2019. Cyprus Civil Justice System Reform: Developing a National Identity. Cyprus Review, 31(1), pp.31-52.
[12] Luzon, G., 2018. Judicial Conflict Resolution in Plea Bargaining as the Golden Mean Between the Adversarial and Inquisitorial Legal Systems. Cardozo J. Conflict Resol., 20, p.597.
[13] Muhamad, M.S., and Movement, S.V.Y., 2018. Alternative Dispute Resolution in India and the United States: A Comparative Analysis and Recommendations to Improve Efficiency and Effectiveness in Indian ADR.
[14] Menkel-Meadow, C., 2018. Ethics in alternative dispute resolution: New issues, no answers from the adversary conception of lawyers’ responsibilities (pp. 429-476). Routledge.
[15] Partington, M., 2021. Introduction to the English legal system. Oxford University Press.
[16] Rule, C., 2020. Online dispute resolution and the future of justice. Annual Review of Law and Social Science, 16, pp.277-292.
[17] Rabinovich-Einy, O. and Katsh, E., 2019. Blockchain and the inevitability of disputes: the role for online dispute resolution. J. Disp. Resol., p.47.
[18] Schmitz, A. and Rule, C., 2019. Online dispute resolution for smart contracts. J. Disp. Resol., p.103.
[19] Tahura, U.S., 2019. Does Mandatory ADR Impact on Access to Justice and Litigation Costs?. Australasian Dispute Resolution Journal, 30(1), pp.31-8.
[20] Tan, V., 2019. Online dispute resolution for small civil claims in Victoria: A new paradigm in civil justice. Deakin Law Review, 24(2019), pp.101-138.
[21] Verreycken, Q., 2019. The power to pardon in late medieval and early modern Europe: New perspectives in the history of crime and criminal justice. History Compass, 17(6), p.e12575.
[22] Xu, H., Hipel, K.W., Kilgour, D.M. and Fang, L., 2018. Conflict resolution using the graph model: strategic interactions in competition and cooperation. Cham: Springer International Publishing.
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