ADR and applicable law

Julia Hörnle

doi:10.1017/CBO9780511576102.004

4 - ADR and applicable law

Published online by Cambridge University Press: 30 November 2009

Julia Hörnle

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Julia Hörnle: Affiliation:
Queen Mary University of London

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Summary

Those, who in quarrels interpose,

Must often wipe a bloody nose.

(John Gay, 1685–1732)

Introduction

The function of this chapter is to explain the meaning of alternative dispute resolution (ADR). This serves as background to the discussion of ODR in the following chapter. This chapter concentrates on the two main forms of ADR (mediation and arbitration), discussing their main characteristics, function and limitations. In doing so, this chapter explains why only arbitration is to be regarded as a true alternative to litigation, and why mediation is, in its nature, a sort of filter for disputes, a complementary rather than independent form of dispute resolution.

One way to deal with disputes is through adjudication. The essence of adjudication is to have a neutral third person decide whether the second person should give the disputed something to the first person or do what the first person demands. The adjudicator thereby defines the first person's legal rights and entitlements.

Alternatively, the first person may want to bargain with the other person. Bargaining by its very nature involves the first person persuading the second person that it is in his or her interests to give to the first person what they wish to obtain, or to do what the first person wants him or her to do.

Between the opposite ends of the spectrum of formality (namely bargaining and litigation) lies a range of dispute resolution mechanisms that involve a neutral third party but which are kept outside the courts.

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Type: Chapter
Information: Cross-border Internet Dispute Resolution , pp. 47 - 73

DOI: https://doi.org/10.1017/CBO9780511576102.004 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2009

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References

Kaufmann-Kohler, G. and Schultz, T., Online Dispute Resolution: Challenges for Contemporary Justice (The Hague: Kluwer Law International, 2004), 6Google Scholar

Rule, C., Online Dispute Resolution for Business (San Francisco, Calif.: Jossey-Bass, 2002), 13Google Scholar

Genn, H., The Central London County Court Pilot Mediation Scheme Evaluation Report (London: Lord Chancellor's Department, July 1998)Google Scholar

Vidmar, N., ‘Procedural Justice and Alternative Dispute Resolution’, in Röhl, K. and Machura, S. (eds.), Procedural Justice (Aldershot: Ashgate, 1997) 121–36, 121Google Scholar

Mackie, K., Miles, D., Marsh, W. and Allen, T., The ADR Practice Guide (London: Butterworths, 2000), 9Google Scholar

Getting to Yes: Negotiating an Agreement Without GivingIn, 2nd edn (London: Random House, 1992)

Nader, Laura's No Access to Law: Alternatives to the American Legal System (New York, NY: Academic Press, 1980)Google Scholar

Menkel-Meadow, C., ‘Toward Another View of Legal Negotiation: The Structure of Problem-Solving’ (1983–1984) 31 UCLA Law Review754–842Google Scholar

Redfern, A. and Hunter, M., Law and Practice of International Commercial Arbitration, 4th edn (London: Sweet & Maxwell, 2004), 3–6Google Scholar

Houlden, P., Tour, S., Walker, L. and Thibaut, J., ‘Preferences for Modes of Dispute Resolution as a Function of Process and Decision Control’ (1978) 14 Journal of Experimental Social Psychology13–30, 26–7CrossRef Google Scholar

Merry, S. and Silbey, S., ‘What Do Plaintiffs Want? Reexamining the Concept of Dispute’ (1984) 9(2) Justice System Journal151–78, 152Google Scholar

Mnookin, R. and Kornhauser, L., ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 The Yale Law Journal950–97, 971–2CrossRef Google Scholar

Clark, E., Cho, G. and Hoyle, A., ‘Online Dispute Resolution: Present Realities, Pressing Problems and Future Prospects’ (2003) 17(1) International Review of Law, Computers & Technology7–25, 16CrossRef Google Scholar

Fuller, L., ‘Mediation – Its Forms and Functions’ (1971) 44 Southern California Law Review305–39, 316–17Google Scholar

Edwards, H., ‘Alternative Dispute Resolution: Panacea or Anathema?’ (1986) 99 Harvard Law Review668–84, 678CrossRef Google Scholar

Fiss, O., ‘Against Settlement’ (1984) 93 Yale Law Journal1073–90, 1085–6CrossRef Google Scholar

Galanter, M. and Cahill, M., ‘Most Cases Settle: Judicial Promotion and Regulation of Settlements’ (1994) 46 Stanford Law Review1339–91, 1364 and 1385–6CrossRef Google Scholar

Cobb, S. and Rifkin, J., ‘Practice and Paradox: Deconstructing Neutrality in Mediation’ (1991) 16 Law and Social Inquiry25–63, 39Google Scholar

Lew, J. D. M., Mistelis, L. A. and Kröll, S. M., Comparative International Commercial Arbitration (The Hague: Kluwer Law International, 2003), 3–4, 99Google Scholar

Clarkson, C. M. V. and Hill, J., The Conflict of Laws, 3rd edn (Oxford University Press, 2006), 252Google Scholar

Paulsson, J., ‘Delocalisation of International Commercial Arbitration: When and Why It Matters’ (1983) 32 International and Comparative Law Quarterly53–61CrossRef Google Scholar

Shaw, M. N., International Law, 5th edn (Cambridge University Press, 2003), 94CrossRef Google Scholar

Wallace, R., International Law, 4th edn (London: Sweet & Maxwell, 2002), 22–3Google Scholar

Mustill, L. J., ‘The New Lex Mercatoria – The First Twenty-Five Years’ (1987) 4(2) Arbitration International86–119, 92CrossRef Google Scholar

Gaillard, E., ‘Transnational Law: A Legal System or a Method of Decision-Making’ (2001) 17(1) Arbitration International59–71, 64 and 69CrossRef Google Scholar

Mann, F. A., ‘The Proper Law in the Conflict of Laws’ (1987) 36 International Comparative Law Quarterly437–53, 448CrossRef Google Scholar

North, P. and Fawcett, J., Cheshire and North's Private International Law, 13th edn (London: Butterworths, 1999), 548–9Google Scholar

McClean, D. and Beevers, K., Morris on the Conflicts of Law, 6th edn (London: Sweet & Maxwell, 2005), 339

Ware, S., ‘Default Rules from Mandatory Rules: Privatizing Law through Arbitration’ (1999) 83 Minnesota Law Review703–54, 726Google Scholar

Voser, N., ‘Mandatory Rules of Law as a Limitation on the Law Applicable in International Commercial Arbitration’ (1996) 7 American Review of International Arbitration319–57, 321Google Scholar

Mayer, P., ‘Mandatory Rules of Law in International Arbitration’ (1986) 1 Arbitration International274–93, 285CrossRef Google Scholar

Hochstrasser, D., ‘Choice of Law and “Foreign” Mandatory Rules in International Arbitration’ (1994) 11 Journal of International Arbitration57–86, 84–5Google Scholar

Blessing, M., ‘Mandatory Rules of Law Versus Party Autonomy in International Arbitration’ (1997) 14 Journal of International Arbitration23–40, 31–2Google Scholar

Lowenfeld, A., ‘The Mitsubishi Case: Another View’ (1986) 2 Arbitration International178–90, 186–7CrossRef Google Scholar

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