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Dispute Resolution coursework:When drafting dispute resoluti

时间:2019-07-12 10:03来源:未知 作者:anne 点击:
1. Introduction介绍 New Shorter Oxford English Dictionary(1993)将争议定义为逻辑论证或 对提出和反对论据的主题进行口头或书面讨论,或争论或反对某事或某人,争论,争议的实例等。在实践中,有各
1. Introduction介绍
 
New Shorter Oxford English Dictionary(1993)将争议定义为“逻辑论证”或
“对提出和反对论据的主题进行口头或书面讨论”,或“争论或反对某事或某人,争论,争议”的实例等。在实践中,有各种各样的纠纷本文只讨论商业纠纷,尤其是合同纠纷。在签订,执行和终止合同,合同的设立和执行,联系的有效时间,合同内容的解释,合同责任,修改和撤销,合同转让等方面,所有这些问题都可能导致合同纠纷。虽然合同是在当事人一致宣告意图的基础上缔结的,但由于当事人的立场不同,他们对某些问题的理解倾向于得出冲突的结论。在某种程度上,合同纠纷是不可避免的。
The New Shorter Oxford English Dictionary (1993) defines dispute as“A logical argument” or
“An oral or written discussion of a subject in which arguments for and against are put forward and examined”, or “An instance of disputing or arguing against something or someone, argument, a controversy”etc..  In practice, there are all kinds of disputes. This essay is only talking about business disputes, especially contract disputes. In the process of signing, implementing and terminating a contract, the establishment and the execution of the contract, the effective time of the contact, the explanation of contract contents, the contract responsibilities, modification and rescission, the assignment of contract, etc., all these issues may cause contract disputes. Although the contract is concluded on the basis of the parties unanimous declaration of intentions, because the different position of the parties, their understandings to certain issues tend to come up to conflict conclusions. To some extend, contract disputes are inevitable. 
无论何种合同纠纷,都需要有适当的方法来解决有争议的项目。根据合同法的规定,当合同纠纷发生时,当事人可以通过谈判或调解解决纠纷。当事人不愿协商或者调解,或者未通过协商或者调解的,当事人可以根据仲裁协议向仲裁机构申请仲裁;如果当事人没有缔结仲裁协议或者无效,则双方可以向法院提起诉讼。各种违约行为都会引起合同纠纷。对于合同纠纷,双方可以通过以下方式解决:谈判,调解或调解,仲裁和诉讼。其中,谈判,调解或调解不是解决合同纠纷的必要程序。即使当事人在合同纠纷条款中设定了相关规定,当事人也可以直接申请仲裁或提起诉讼,也不是强制进行谈判,调解或调解。因此,在签订合同并起草争议解决条款时,选择仲裁或诉讼来解决合同纠纷是一个重要的问题。
No matter what kind of contract disputes, all need proper ways to solve disputed items. According to the provisions of Contract Law, when contract disputes happen, the parties may settle the disputes through negotiation or mediation. If the parties are reluctant to negotiation or mediation, or it fails for negotiation or mediation, the parties may apply an arbitration to arbitration agency according to arbitration agreement; if the parties did not conclude an arbitration agreement or the same is invalid, the parities may bring a litigation in a court. All kinds of default behaviors shall cause contract disputes. For contract disputes, the parities may settle them through the following ways: negotiation, mediation or conciliation, arbitration and litigation. Among them, negotiation, mediation or conciliation are not necessary procedures to solve contract disputes. Even the parties set relevant rules in contract dispute clauses, the parties can also apply an arbitration or bring a litigation directly, it is not compulsory for negotiation, mediation or conciliation. Therefore, when entering into a contract and drafting dispute resolution clause, it is an import issue to choose arbitration or litigation to resolve contract disputes. 
 
2. Ways of dispute resolution争议解决方式
 
Contractual dispute usually involves two aspects: one is the factual dispute; the other is the dispute over laws, such as, how the contract agreement should be interpreted and applied. In general, there are four ways to solve a contractual dispute: firstly, voluntary negotiation between the two or more parties; secondly, mediation; thirdly, arbitration; fourthly, litigation. The first method is often not easy in that the dispute has to be solved by a voluntary negotiation between two or more parties, because in the event of a dispute, the relationship between all parties of contract must have become tense and in many cases it is not easy to compromise with each other. The fourth method is to settle disputes through litigation, which often involves lengthy and complicated legal proceedings and expensive costs and is not conducive to maintaining trade secrets and sensitive information if litigation is conducted in public. In the above-stated cases, mediation and arbitration have offered two alternative effective solutions.
 
2.1 Features of negotiation and its applicable scope
Negotiation is widely used in real cases. Two or more people or parties, who intend to reach an understanding, resolve difference between parties, gain certain advantages from the communication of dialogue, or come into an agreement, to bargain for individual advantage such as contract price, to satisfy various interests of the parties, all these intentions can be the purposes of negotiation. 
Negotiation is a way of dispute resolution. It bases on contract liability regulated by the contract and the actual situations of the parties. It aims to negotiate an effective way to solve the disputes, rather than bring it to the judicial proceedings. However, because negotiation agreement lacks legal binding, some people may renege and make the negotiation agreement become a dead letter, the dispute resolution time shall be delayed. 
2.2 Features of mediation and its applicable scope
In the Civil Procedure Law for Mainland, there are also provisions related to mediation. It is stipulated that the mediation shall be mainly carried out by the court, if the mediation is successful, the court should produce a mediation document. This shows that the court plays an important role in mediation. However, in Hong Kong, the court will not directly participate in mediation. The Hong Kong Mediation Ordinance (Cap. 620) came into effect on January 1, 2013. This Ordinance applies to all and part of the mediation conducted in Hong Kong. Under Hong Kong Law, mediation mainly means that one or more impartial individuals assist the contending parties to find out the points of dispute, seeking and formulating solutions and communicating with each other and reaching an agreement on all or part of resolution to the dispute, without adjudication of the related dispute or any part of it. If a mediation agreement can be reached, the legal validity of the agreement is equivalent to any general contract and the agreement may also be enforced in accordance with the general principles of contract law.
According to Section 4(1) of the Mediation Ordinance (Cap. 620), “Mediation is a structured process comprising of one or more sessions in which one or more impartial individuals, without adjudicating a dispute or any aspect of it, assist the parties to the dispute to do any of the following: 
Identify the issues in the dispute;
Explore and generate options;
Communicate with one another;
Reach an agreement regarding the resolution of the whole, or part, of the dispute” 
Normally, the impartial individuals are trusted and chosen by the parties, they take mutual understanding and mutual accommodation of the parties as a principle. Compared with negotiation, it is highly possible to reach a resolution. However, just like negotiation agreement, mediation agreement also have no legal binding, it shall make the dispute resolution unsatisfactory sometimes. In the case HYUNDAI ENGINEERING AND CONSTRUCTION CO LTD v. VIGOUR LTD [2004], the plaintiff and the defendant entered into a March Agreement, to construed this March Agreement properly, it requires the parties bound themselves to negotiations and mediation, prevent from suing each other “while negotiations and mediation were taking place and the dispute resolution regime established by the document remained operative”. In the March Agreement, there are these words, "not bring any ... court action forever" and "in any case no party will exercise the right to sue against each other", the Judge thinks this kind of clause merely reflect the parties’ belief, which have been over-optimistic “that the March Agreement provided a mechanism whereby their differences would definitely be resolved such that there would never need to be recourse to litigation”. 
An important clause in Hong Kong's Mediation Ordinance is to provide for the confidentiality of mediation communications. Except for a few exceptions, no one may disclose the contents of a mediation communication, especially the contents of the mediation. Generally speaking, evidence of a lawsuit can not be taken unless the court approves. This is to ensure that both parties can speak out freely in the process of mediation without fear of saying something unfavorable to themselves during the mediation process or revealing some information or documents that are unfavorable to them in case when the mediation fails and litigation is needed to resolve the dispute, the above information can be used as evidence by the opposite party to persecute. One of the important factors that ensure the mediation can effectively solve the dispute is who is to act as a mediator? A good mediator, as an "intermediary", should have two characteristics: firstly, it must be independent, impartial and objective in the process of helping both sides to solve the problem; secondly, it must have some knowledge and experiences of the dispute between both parties, Otherwise, it is hard to come up with a constructive and persuasive solution.


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