Legal Conflicts, Alternative Dispute Resolution, Arbitration (Ammar Younas)

Legal Conflicts, Alternative
Dispute Resolution,
Arbitration
Ammar Younas
Ammar Younas (ayounas@wiut.uz)

Kurultai

PANCHAYAT, LOCAL GOVERNMENT
SYSTEM, AND ADR
https://www.zeepedia.com/read.php?panchayat_local_government_system_and_adr_definitions_of_pa
nchayat_definition_of_jirga_conflict_managment&b=30&c=44Ammar Younas (ayounas@wiut.uz)

Jirga System

Arbitration in UK

DEFINITION OF THE CONFLICT
• How can we name opposition of interests?
•Disagreement » opinion differences or simply differences in
points of view.
• Conflict » disagreement followed by actions against each
other.
• Dispute » disagreement connected with violation of rights
(legal concept).

The same issue may cause disagreement, conflict,
dispute or even WAR!

Main Alternative Dispute Resolution
Methods
• Negotiations
• Mediation
• Arbitration

NEGOTIATIONS
• This type of ADR aims for the parties to settle the dispute by negotiating
and deliberating with each other with the attendance of their attorneys if
needed, without intervention of any third party.
Main features of negotiations:
almost always attempted first to resolve a dispute;
• allows the parties to meet in order to settle a dispute;
• allows the parties themselves to control the process and the solution;
• do not requires involvement of the third party;
• informal, low cost, high speed private future oriented procedure;
• helps to restore relations.

MEDIATION
• This type of ADR means the settlement of a dispute by setting up an
independent person between two contending parties in order to aid them in the
settlement of their disagreement.
Main features of mediation:
• allows the parties themselves to control the process and the solution;
• requires involvement of the third neutral party (mediator);
• mediator bring opposing parties together and encourages
• them to work out a settlement;
• informal, low cost, high speed, private, future oriented,
• voluntary procedure;
• helps to restore relations;
• focuses on underlying interests. Ammar Younas (ayounas@wiut.uz)

ARBITRATION
• This type of ADR means the hearing and determining of a dispute between parties by a
person or persons (arbitrators) chosen or agreed to by the parties. Arbitration award is
recognized and enforceable under the law.
Main features of arbitration:
• voluntary (on the bases of arbitration clause or agreement);
• parties can agree on arbitral panel, procedural rules, language, applicable law, place
of hearings and etc.;
• decision is mandatory to follow;
• formal, more expensive, slower and past oriented private procedure;
• focuses more on legal issues and do not take into considerations
• other aspects, what might be important;
• not all disputes may be resolved in arbitration.
• Arbitration might be binding and non-binding.

HYBRID PROCEDURES
• These ADR methods combines two or more traditional ADR methods
(negotiations, mediation and arbitration).
Main hybrid procedures:
• MedArb (third person starts as a mediator but in the event of a failure of
mediation, the arbitrator imposes a binding decision);
• ArbMed (during the arbitration process, mediation is applied. In case of
its failure, arbitrator imposes a binding decision);
• Neutral evaluation (expert in certain area investigates the case material
and informs parties about the strong and weak points of their positions);
• Private judging / rent a judge (presenting case to a retired or former judge
in a privately maintained courtroom with all the appurtenances of the
formal judicial process).

ADR Procedures

HOW TO CHOOSE MOST APPROPRIATE
DISPUTE RESOLUTION METHOD?
Please take into account:
• character of a dispute;
• personal features of the parties;
• negotiation style of the parties;
• financial status of the parties;
• time limits for resolution;
• duration of relations between the parties;
• level of personal emotional involvement of the parties into a dispute;
• level of the conflict escalation

An argument
between two
class fellows
on seating
preferences?

A heated discussion between husband and wife
over the wife’s pocket money?

Domestic Violence

A Contract
Violation?

ESCALATION
OF
CONFLICT
• In order to choose correctly the certain dispute resolution method it is
advisable to use Glasl‘s model of „Conflict escalation stages“.

• 1st stage - Hardening 3rd stage – Actions not words
2nd stage – Debate / Polemics 4th stage – Images / Coalitions

• 5th stage – Loss of Face 7th stage – Limited destructive bowls
6th stage – Strategies of Threats 8th stage - Fragmentation

9th stage – Together into Abyss

STAGE OF ESCALATION AS KEY FOR
CHOOSING ADR METHOD
1.Hardening
of positions
2.Debates
and
Polemics
3.No more
words but
action
4.Images &
group
building
5. Loss
of face
6. Strategy
of
threatening
7. Limited
destruction
8.Fragmen-
tation
9.Together
into the
abyss
------------ Negotiation ------------------
--- Facilitation ----
-------------------------------- Mediation -------------------------------
-------------- Arbitration / Llitigation -----------
Power
decisions

lack of diversity
Female partners on inaternational
arbitration teams:
~ 11%
Female arbitrators on international
arbitration tribunals:
~ 6%
Females around the world:
~ 50%
Female law students:
~ 60%
Female partners in international law
firms
~ 20%
Sources:
Lucy Greenwood, Getting a
Better Balance on
International Arbitration
Tribunals (2013)
Lucy Greenwood, ‘Unblocking
the Pipeline: Achieving
Greater Gender Diversity on
International Arbitration
Tribunals, International Law
News (2013, Vol 42)
Roughly, for
every 10
individuals
around you …

What is Arbitration?
• Arbitration is a private method of dispute resolution
chosen by the parties themselves as an effective way
of putting an end to disputes between them without
recourse to the courts of law
• It is conducted in different countries and against
different legal and cultural backgrounds with a
striking lack of formality

What is Arbitration?
• Arbitration was mainly conceived in
the past as an institution of peace,
the purpose of which was not
primarily to ensure the rule of law,
but rather to maintain harmony
between persons who were destined
to live together

Four Significant Features of Arbitration
•The agreement to arbitrate
•The choice of arbitrators
•The decision of the arbitral tribunal
•The enforcement of the award

The Agreement to
Arbitrate
• An agreement by the parties to submit to
arbitration any disputes or differences
between them
• Arbitration agreement can be contained in
the main contract as an arbitration clause
or in submission to arbitration
• Also, agreements to arbitrate may be
contained in bilateral investment treaties

The Agreement to
Arbitrate
• Arbitration agreement shows that the
parties have consented to resolve their
disputes by arbitration. This element of
consent is essential. Without it, there
can be no valid arbitration
• Once the parties have given their
consent to arbitration, this consent
cannot be unilaterally withdrawn

The Agreement to Arbitrate:
The Principe of Separability
• Even if the arbitration agreement forms
part of the original contract between
the parties and that contract comes to
an end, the obligation to arbitrate
survives it. It is an independent
obligation separable from the rest of the
contract

The Agreement to Arbitrate
• If one of the parties to an AA brings
proceedings in a national court in
breach of that agreement, those
proceedings will be stopped at the
request of any other party to the AA
(unless there is a good reason why
they should not be)

The Agreement to Arbitrate
• AA is a basic source of the powers of the
arbitral tribunal. In principle, an arbitral
tribunal may exercise such powers as the
parties are entitled to confer and do confer
upon it
• In the arbitral process, the jurisdiction of the
arbitral tribunal is derived simply and solely
from the agreement of the parties

The Choice of Arbitrators
• One of the features that distinguishes arbitration from
litigation is the fact that the parties to an arbitration
are free to choose their own tribunal

The Decision of the Arbitral
Tribunal
•Consent award, the UNCITRAL
Rules

The Decision of the Arbitral
Tribunal
•However, if the parties cannot
resolve their dispute, the task
of the arbitral tribunal is to
resolve the dispute for them by
making a decision in the form
of a written award

The Enforcement of the Award
• Although the arbitral proceedings are the
private process, the award constitutes a
binding decision on the dispute between
the parties
• If it is not carried out voluntarily, the
award may be enforced by legal
proceedings both locally and
internationally
• The New York Convention on the
Enforcement of Arbitral Awards

Arbitrability
• There are some disputes, which in the
words of the New York Convention, concern
a subject-matter, which is not capable of
settlement by arbitration
• Family disputes, labor disputes, criminal
cases, and others are not arbitrable

Why Arbitrate?
• Two principal reasons
• A neutral forum and a neutral tribunal
• Enforceable award under the NY Convention

Why Arbitrate?: Reasons
• If parties did not choose ADR, they would have
to start the proceedings in the court of law,
where the dispute has arisen. This would
mean unfamiliar court proceedings, expensive
translation, hiring legal experts, and etc
• On the other hand, if a reference is made to
arbitration, then the dispute is likely to be
determined in a neutral forum or place of
arbitration rather than on the home ground of
one party or the other

Why Arbitrate?: Reasons
• One or more arbitrators may be chosen
for their special skill and expertise in
spheres
• Arbitral proceedings are more flexible
and confidential than court proceedings

The Disadvantages of
Arbitration
Costs
• Arbitration is not necessarily a cheaper
method of resolving disputes than
litigation
• First, the fees and expenses of the
arbitrators (unlike the salary of a judge)
must be paid by the parties
• It may also be necessary to pay the
administrative fees and expenses of an
arbitral institution

Arbitration
Costs
• If the services of a specialized arbitral
institution are not used, it may be
necessary to appoint a secretary or
registrar to administer the proceedings
• It will be necessary to hire rooms for
meeting and hearings, rather than making
use of the public facilities of the courts of
law

Arbitration
Limited powers of arbitrators
• In general the powers accorded to arbitrators
fall short of those conferred upon a court of
law. For example, the power to require the
attendance of witnesses under the penalty of
fine or imprisonment are powers, which form
part of the prerogative of the state
• However, if it is necessary to take coercive
actions, arbitral tribunal can do so indirectly
through courts

Arbitration
No joinder of the parties
• In general it is not possible to bring
multi-party disputes together
before the same AT
• Unlike a national court of law, an AT
has no power to order
consolidation of actions even if this
would seem to be necessary or
desirable in the interests of justice

Arbitration
Conflicting awards
• There is no system of precedents in arbitration
• Each award stands on its own

Types of Arbitration
• Ad hoc
• Arbitration, which is conducted
pursuant to rules agreed by the
parties themselves or laid down by
the AT
• Parties are free to work out and
establish rules of procedure for
themselves
• It is very important especially when
one of the parties is a state

Types of Arbitration
• Institutional arbitration
• Arbitration, which is administered by a
specialist arbitral institution under its own
rules of arbitration
• There are many such institutions such as
International Centre for the Settlement of
Investment Disputes, the International Court
of Arbitration of International Chamber of
Commerce, London Court of International
Arbitration, and others

Arbitration in
Uzbekistan
http://www.chamber.uz/en/page/4857
https://www.tiac.uz/
http://en.uzarbitration.uz/

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