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CHAPTER 8 – Alternative Dispute Resolution (ADR).doc

CHAPTER 8 – Alternative Dispute Resolution (ADR).doc -...

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CHAPTER 8 Alternative Dispute Resolution (ADR) Alternative to litigation, methods of dispute settlement that different from litigation. 1) Arbitration 仲裁 2) Mediation 調解 Decision made by a third party who has power to impose his decision on the parties. Consensual (agreement) either by i) agreement after a dispute has risen or ii) an arbitration clause in the contract Primacy of agreement freedom of contract the court usually will not interfere with the contract except illegal contracts, contracts tainted by fraud. parties thus able to regulate their rights and liabilities themselves Scott v Avery clause Parties to a contract are bound by an arbitration agreement, no action can be brought in court before the issue of liability determined by the arbitrator. *To exclude the jurisdiction of the court in the arbitration agreement is not enforceable since it will amount to an ouster (exclusion) of jurisdiction of the court; *an arbitration clause is treated as collateral to the rest of the contract and as such it does not take away the court’s jurisdiction. If an action is brought, the defendant may seek an order from the court to stay (suspend) the proceedings as parties should keep to their agreements.
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