Litigation and arbitration

THE STUDY OF LAW

Lead-in

A dispute is a disagreement or argument about something important. There are all kinds of legal disputes, from disputes over people's behaviour and business disputes to planning and environmental disputes, to name just a few.

1 Legal disputes can be resolved in the courtroom, but there are other ways of
resolving them, as well. What forms of dispute resolutiondo you know?
What procedures do they involve?

leading i: Litigation and arbitration

2 Read the text and decide whether these statements are true (T) or false (F).

1 The term litigation refers only to the hearing or a trial.

2 Mediation differs from arbitration in that the disputing parties are actively involved in the decision-making process.

3 International arbitration developed in response to the need to settle disputes involving more than one jurisdiction.

4 Online dispute resolution requires that the disputing parties meet in person with the arbitrators before a final decision can be made.

If a disputeis not settled by agreement between the disputing parties,it will eventually be heard and decided by a judge and/or jury in a court. A lawsuitbefore a courtis commonly referred to as litigation.In fact, litigation includes all stages before, during and after a trial.

Litigation may be used to resolve a dispute between private individuals, an individual and a business, or between two businesses. Litigation sometimes

jives disputes between an individual or business and a government agency,or between two governmental bodies.

the UK, the majority of pre-trial workis carried out by a solicitorbefore the 3se is passed on to a barrister,who will represent either the claimant¹ or the defendant during a hearingor a trial. In the USA, the same attorneymay lealwith the case from the time the client first makes contact through to the il and enforcementstages. The steps in between these two stages typically jlude an attempt to reach a settlementbefore and/or after filing a lawsuit >d pleadings,entering the discovery phaseand then proceeding to trial. At end of a trial, the court will deliver its judgment and pass an order,which winning party's counsel²and/or the court may help the winning party enforce.

I plaintiff V more of the lawyers taking part in a trial

Criminal matters are also considered litigation, and many civillitigation lawyers also deal with criminal cases,as well as some forms of alternative dispute resolution(ADR).

The term litigation is sometimes used to distinguish lawsuits from ADR methods such as negotiation, arbitrationand mediation.If a case goes to arbitration, the disputing parties refer it to one or more impartial referees(the arbitrators, arbitersor arbitral tribunal);the parties agree to be bound by the referees' decision (e.g. an award for damages). Arbitration is the main form of ADR used by businesses. Mediation involves a type of structured meeting with the disputing parties and an independent third party who works to help them reach an agreement between themselves. In arbitration, a binding decision is imposed by an independent third party. With mediation, the role of the third party is to facilitate negotiation and agreement between the disputing parties.

Arbitration is often used to resolve commercial disputes, particularly those involving international commercial transactions, and it developed historically alongside international trade. The arbitral process for resolving disputes under international commercial contracts is referred to as international arbitration.Arbitration is also used in some jurisdictions to resolve other types of dispute, such as those involving employment-related issues.

Recent years have seen the development of online dispute resolution (ODR). ODR proceedingsstart with the filing of a claim online, followed by proceedings which take place over the Internet.

Key terms: Parties and phases in litigation and arbitration

3 Complete the sentences below using the words for parties involved in dispute resolution from the box.

arbitrationtribunal	arbitrator	barrister	claimant	court
defendant	disputing parties	solicitor	third party

1 In litigation, the................................. files a lawsuit against the

................................... Usually, a................................... carries out pre-trial

work in preparation of the case, while a................................ represents

the claimant ov defendant in court. When the case has been heard, the
................................ delivers judgment.

2 In arbitration, an................................ or................................... decides on the

outcome of the case.

3 In mediation, an independent.............................. helps the

................................ reach a settlement.

4 Match the phases of litigation (1-4) with the descriptions (a-d).

1 pre-trial phase

2 3 4

discovery phase trial phase enforcement phase

a One or both parties gathers evidence about the dispute by taking the testimony of witnesses, examining documents or physical evidence, or requesting evidence from the other side.

b The facts of the case are heard by a judge, or by a judge and a jury. The court delivers a judgment in the case.

c The losing party may file post-trial motions to convince the judge to amend the judgment, or may decide to appeal to a higher court. The winning party has the task of collecting the judgment.

d When a dispute arises, one party will usually have their lawyer send a letter to the other party in an attempt to reach a settlement. This party makes a demand of the other, who will then send a response. Informal discussions often follow. If the parties cannot reach an agreement, formal action may be started and a suit is filed.

Read this outline of the advantages of one particular form of dispute resolution, taken from a government website. Which form is being referred to?

or>

o

. e

It works because it:

1 is a positive process which encourages cooperative problem-solving and preserves relationships;

2 allows people to have a say in resolving their dispute;

3 can look at all aspects of the problem, not just the immediate issues;

4 enables people to hear directly from each other and gain a better understanding of each other's needs.

6 In your opinion, what are the advantages and disadvantages of the other forms of dispute resolution - including litigation? Discuss in small groups. Use some of the phrases for talking about advantages and disadvantages introduced in Unit 5.

lading 2: Letter of invitation

law faculty of a large university has invited a distinguished scholar, Professor Zhang , to speak on the subject of Chinese arbitration law. Nicholas O'Brien, a law student at university, has written to Professor Zhang.

Read the letter on page 86 and answer these questions.

1 What does Nicholas invite Professor Zhang to do?

2 What will the simulated arbitration be about?

3 What does Nicholas offer to send to Professor Zhang?

Unit 8 Litigation and arbitration

Dear Professor Zhang

I am a student of law at University College, Dublin, Ireland, and a member of the European Law Students' Association (ELSA).This semester, I am taking a course on alternative dispute resolution, and we are also learning about ADR in China. My lecturer, Professor Peter Donnelly, has informed me that you are visiting the university and giving a presentation on the subject of Chinese arbitration law on 11 March. ELS A will advertise your talk on its website and on campus. I'm certain that many students will attend.

On behalf of ELS A I would like to invite you to take part in a simulated arbitration, which will be carried out by smdents taking the ADR course. We arc holding the simulation the morning of 12 March, and very much hope that you will have time to participate. We have selected an interesting Chinese case, the 'peanut kernel' case (1999), and will use it as the basis of the simulation. If you would like. I can send you more detailed information about the planned simulation.

I would also like to invite you. on behalf of ELSA, to be the guest of honour at a dinner we arc hosting on 11 March at 8 p.m. I very much hope that you will be able to accept this invitation.

I look forward to your reply.

Sincerely

Nicholas O'Brien

Language use i: Future forms

As the examples from the letter show, there is no single verb form for referring to the future in English. The two future forms (be + verb + -ing and will + verb) are used to express the specific meanings listed in Exercise 8, and these are best learnt separately.

8 a Find examples of the present continuous tense (be + verb + -ing) in the letter. Which examples refer to the future, and which to the present? Label them with the correct letter (A or B).

A future meaning: fixed arrangements in the future

B present meaning: an ongoing process at the moment of speaking

b Now look for examples of will + verb, and label them with the correct letter (C, D or E).

C making an offer or expressing an intention to do something D making a prediction about the future E referring to future time

9 Complete the letter on page 87, written in response to the invitation, with the correct forms (verb + -ing or will + verb) of the verbs in brackets.

Dear Mr O'Brien

Many thanks for your kind invitation. I am very grateful to you and ELSA for requesting my

participation in the simulated arbitration you 1)................ (hold) 12 March. Unfortunately, I 2)........

(fiy) to Hong Kong early in the morning that day and therefore cannot take part. Also, I 3).............

(meet) with a group of professors from the Law Faculty on the evening of the 11^th. However,

I 4)............ (try) to rearrange my schedule for that evening to make time to attend your dinner.

I 5)............ (contact) you and let you know.

If you have any questions about Chinese arbitration law in general or the 'peanut kernel' case in

particular, please do not hesitate to ask and I 6)............. (be) very happy to answer them.

Sincerely Zhang Lin

Listening i: Question-and-answer session

10 These terms are used during a question-and answer-session following
Professor Zhang's lecture on Chinese arbitration law. Match the terms (1-3)
with their definitions (a-c).

1 enforcement of an award a an international agreement signed

by two states

2 bilateral treaty b a party that has signed an international

agreement

3 signatory to a convention c ensuring that the decision of (e.g. an arbitral

tribunal¹) is obeyed or carried out

11 ^8.i Listen to the question-and-answer session and tick the topics that
Professor Zhang talks about.

1 The structure of China's economy D

2 The CIETAC □

3 International conventions to which China is a signatory Q

4 The enforcement of Chinese awards in foreign countries

5 Rights of appeal following arbitration in China □

6 A Chinese case about to be decided by an arbitral tribunal Q

12 4^8,.i Listen again. The audience members begin their questions with phrases
that signal that a question is coming. Tick the question openers you hear.

1 I was wondering if you could tell us ... □

2 You mentioned that ... □

3 Could you go back to the point you made about ... O

4 I've got a question ... □

5 Could you tell us more about ... □

6 I'm afraid I didn't understand what you said about ... □

Speaking i: Talk on litigation/arbitration

13 Prepare and hold a short talk (two to three minutes) about an aspect of litigation
or arbitration in your jurisdiction. Take notes during other students' talks, and ask
questions using some of the question openers listed in Exercise 12.

¹ also arbitrational tribunal

² China International Economic and Trade Arbitration Commission

Unit 8 Litigation and arbitration

LAW IN PRACTICELead-in

Lawyers generally attempt to settle disputes out of court before advising litigation. However, sometimes a trial is unavoidable. Litigation involves three main stages: filing the claim/defence, preparing the case and, finally, the court hearing. Litigation can also involve the enforcement of a judgment when necessary.

14 Think of an example of a case that has gone to a final hearing. What are the
facts of the case? What are the legal issues? Which side won? Was the right
decision reached?

Reading 3: Avoiding litigation

15 What can businesses do to avoid litigation? If litigation is unavoidable, how can a business minimise its legal costs? Discuss with a partner.

16 Read this article on limiting legal problems and match the first half of each paragraph (1-5) with the correct second half (a-e) below.

Preventing large fees by limiting legal problems
by Daniel L. Abrams
It is always easier (and cheaper) to prevent a		fire him or her without consulting an
legal problem from arising than to deal with a		employment lawyer. [,,,..]
problem through litigation. Saving money on		It is a good idea to get everything in
legal fees does not mean ignoring problems		writing. [.,.]
or handling matters yourself when you need		Consider inserting a 'loser pays' rule into
legal expertise. Be proactive, for example:		your commercial contracts. [...)
1 If somebody threatens to sue you, do not		If you are about to be sued, check your
wait for the lawsuit. [...]		insurance policies. [...]
2 If yon have a problem employee, do not

a This discourages frivolous litigation.

b Businesses occasionally pay their lawyers for defending a lawsuit without recognising that the litigation expenses are covered by insurance.

c Hire a lawyer immediately. Early settlement talks can clarify positions and save substantial money in the form of both legal fees and damages.

d They can tell you how to conduct the firing in a way that minimises your exposure to a lawsuit.

e Too much litigation arises out of 'he said / she said' disputes that can be avoided by simple documentation. This rule applies to dealings with your lawyers as well.

17 a Read the article again and compare the ideas you discussed in Exercise 15.

b What other points would you add to (or remove from) the list? Discuss these with a partner and then rank the complete list in order of importance.

Reading 4: Cost of litigation

18 Look quickly at the article below and answer these questions.

1 What do you think the word burden in the headline means?

2 What are the two most common types of litigation?