LL202 WK9 FOR CLASS WK10 LECTURE – commercial dispute resolution
Outline A. Dispute resolution in commercial contracts – how do businesses resolve disputes over
their contracts? By and large contract law are very much court based. However, this might
strike as strange – we are learning about commercial law by only looking at the cases of
where things have gone wrong [leading to litigation] Learning about CC from that
perspective is like learning about marriage from divorced people! Realise that not every
contract ends up in court. Shuldnt always think about litigation: even when things go wrong,
the first instinct is not always to rush to court. Large majority wish to use other means to
resolve their conflicts.
B. Focus on Arbitration
Consider relation between ADR and the courts.
Starting point is freedom of contract:
- Different models of business contracting and how that might inform their approach
to solving a conflict
- How to solve bus disputes –what kind of parties/disputes might prefer one
mechanism
Balance freedom of contract and private party interests with wider public interest
perspectives
- Is there a disappearing trial probkem
- Litigation dispute resolution is big business! There is international competition.
Should the law of one country make it a more welcome jurisdiction that other ones
,Quite a surpurse! You would think commercial litigation is rising in line with growth of the
economy so should be going in upwards economy. From 90s onwards, huge fall in court
litigation.
Similar things are happening in other courts too!
,Why are businesses not choosing court litigation? [push factors – not appealing]
Why are businesses choosing alternatives? [pull factors to ADR mechanisms]
, Look at diff models of business contracting that might generate different push/pull factors
Starting Point –
Freedom of
Contract and
English law’s view
of Business
Contracts:
Start with freedom of contract. Two parties operating in their own self interest but through
bargaining process create a mutually beneficial exchange [which in turn benefits the
economy]
Courts can take this logic to quite an extreme perspective.
Adversarial Model Under English contract law, there is no general pre-contractual duty to negotiate in good
of Business faith
Contracts:
ex ante: adversarial models of negotiation
Walford v Miles
- ex post: contractual disputes
Walford v Miles (1992) Lord Ackner: tracting Party
“The concept of a duty to carry on negotiations in good faith is inherently repugnant to the
adversarial position of the parties when involved in negotiations. Each party to the
negotiations is entitled to pursue his (or her) own interest, so long as he avoids making
representations.” – each striving to receive the best outcome for themselves. Two
competitors fighting with each other to expense the other party.
Outline A. Dispute resolution in commercial contracts – how do businesses resolve disputes over
their contracts? By and large contract law are very much court based. However, this might
strike as strange – we are learning about commercial law by only looking at the cases of
where things have gone wrong [leading to litigation] Learning about CC from that
perspective is like learning about marriage from divorced people! Realise that not every
contract ends up in court. Shuldnt always think about litigation: even when things go wrong,
the first instinct is not always to rush to court. Large majority wish to use other means to
resolve their conflicts.
B. Focus on Arbitration
Consider relation between ADR and the courts.
Starting point is freedom of contract:
- Different models of business contracting and how that might inform their approach
to solving a conflict
- How to solve bus disputes –what kind of parties/disputes might prefer one
mechanism
Balance freedom of contract and private party interests with wider public interest
perspectives
- Is there a disappearing trial probkem
- Litigation dispute resolution is big business! There is international competition.
Should the law of one country make it a more welcome jurisdiction that other ones
,Quite a surpurse! You would think commercial litigation is rising in line with growth of the
economy so should be going in upwards economy. From 90s onwards, huge fall in court
litigation.
Similar things are happening in other courts too!
,Why are businesses not choosing court litigation? [push factors – not appealing]
Why are businesses choosing alternatives? [pull factors to ADR mechanisms]
, Look at diff models of business contracting that might generate different push/pull factors
Starting Point –
Freedom of
Contract and
English law’s view
of Business
Contracts:
Start with freedom of contract. Two parties operating in their own self interest but through
bargaining process create a mutually beneficial exchange [which in turn benefits the
economy]
Courts can take this logic to quite an extreme perspective.
Adversarial Model Under English contract law, there is no general pre-contractual duty to negotiate in good
of Business faith
Contracts:
ex ante: adversarial models of negotiation
Walford v Miles
- ex post: contractual disputes
Walford v Miles (1992) Lord Ackner: tracting Party
“The concept of a duty to carry on negotiations in good faith is inherently repugnant to the
adversarial position of the parties when involved in negotiations. Each party to the
negotiations is entitled to pursue his (or her) own interest, so long as he avoids making
representations.” – each striving to receive the best outcome for themselves. Two
competitors fighting with each other to expense the other party.
