CDR Master flashcards

Starting point for litigation, mediation, or arbitration

problem/dispute (private law) with an international dimension

1. is there a claim based on tort and/or contract

2. if so, which substantive law is applicable

3. is there a valid arbitration or mediation clause

4. 1. if so, how to proceed?

   2. if not, the court of which country has jurisdiction?

4 questions that must be answered in dispute resolution

1. which method of dispute resolution?

   1. default is always state court litigation

2. Where should proceedings take place?

3. How are proceedings to be conducted?

4. How is the ‘result’ to be enforced?

3 methods of civil dispute resolution

1. litigation (proceedings by the court)

   1. default

   2. fundamental right of access to a court of law

2. arbitration

   1. only if parties agreed to it

3. mediation

   1. only if partie

Litigation vs. arbitration and mediation

• mediation and arbitration are voluntary - if the parties do not agree to do either, they must proceed with litigation

• a judge decides cases in litigation whereas an arbitrator weighs in on arbitration and a mediator for mediation (importantly a mediator does not decide - the parties reach a settlement with the help of the mediator)

Principles of dispute resolution

For the purposes of this class they are considered law:

• Pr 1: independence and impartiality of the tribunal

• Pr 3: procedural equality

• Pr 5: right to be heard

• Pr 9: Structure of the proceedings

Principle 1

Independence vis-a-vis the state parties and impartial vis-a-vis the parties

• the court and the judges should have judicial independence to decide the dispute according to the facts and the law, including freedom from improper internal and external influence

• judges should have reasonable tenure in office

• the court should be impartial

• neither the court nor the judge should accept communications about the case from a party in the absence of other parties, except for communication concerning proceedings without notice and for routine procedural administration.

Impartiality tests

• subjective test: does the judge have a clear bias toward or against one of the parties

• objective test: Whether there are ascertainable facts that may lead to legitimate doubts about the judge’s impartiality. (Micallef/Malta)

  • are there objective facts suggesting bias?

  • would a reasonable observer have doubts?

  • are those doubts objectively justified?

Principle 3

Procedural equality of the parties

• the court should ensure equal treatment and reasonable opportunity for litigants to assert or defend their rights

• the right to equal treatment includes avoidance of any kind of illegitimate discrimination, particularly on the basis of nationality or residence

• a person should not be required to provide security for costs, or security for liability for pursuing provisional measures, solely because the person is not a national or a resident of the forum state

• whenever possible, venue rules should not impose an unreasonable burden of access to court on a person who is not a habitual resident of the forum

Micallef/Malta

Background: Mr. F, who lived on the ground floor, was bothered by the water drippings from Mrs. Micallef’s hanging laundry in the apartment above him. He claimed that this was an infringement on his property (little bitch). Importantly, at one of the early hearings for the injunction he wanted to get against Mrs. Micallef, Mrs. Micallef and her legal representation had left the room. Afterward, Mr. F and the judge had set a new date for their next hearing. On that day, Mrs. Micallef did not show up and the injunction on her passed.

Problem: Mrs. Micallef’s lawyer files a complaint and in this new complaint proceeding, the Chief Justice is the brother of Mr. F’s lawyer and acts very angry and dismissive toward Mrs. Micallef.

ECtHR: Applies the subjective and objective test against the actions of the Chief Justice. The subjective test does not pass, but the objective test does.

Steel & Morris/UK

Background: Helen Steel & David Morris were activists who distributed leaflets criticizing McDonald’s alleging poor labor practices, environmental harm, and animal cruelty - McDonald’s sues them for libel

Problem: Helen Steel & David Morris (the applicants) were denied legal aid and had to represent themselves while McDonald’s had a large legal team and resources (imbalance between the parties)

ECtHR: found violations of Art. 6 and Art. 10. Legal aid is not always required, but may be necessary when the case is complex and there is a major imbalance between the parties