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The
UNCITRAL Model Law on International Commercial Conciliation
: A
Critical Appraisal
-- Eric van Ginkel
The
need for uniformity in legal provisions in relation to ADR
at the global level specifically in mediation and conciliation
processes may be due to insufficiency of the existing legal
framework. In the past two decades there has been tremendous
increase in the use of ADR i.e., arbitration and mediation.
This led the UNCITRAL to adopt new Rules on International
Commercial Conciliation in 2002. This development was also
due to the fact that international commercial arbitration
has become too cumbersome and is not as impeccable as it used
to be in its heydays. The Uniform Mediation Act in USA attempted
to bring in some innovations to strengthen the mediation process
and to bring about uniformity within the USA. The Secretariat
of the UNCITRAL emphasized on some issues relating to admissibility
of evidence submitted in conciliation in subsequent judicial
or arbitral proceedings, role of conciliator and enforceability
of settlement agreement reached by the parties. The article
comes up with various suggestions demonstrating that there
is room for improvement in the present law as a first ever
effort made to make a comprehensive law on Conciliation and
relevant issues relating to it.
"Reprinted
with permission from Kluwer Law International",
©
2004 Kluwer Law International, "The UNCITRAL Model Law
on International Commercial Conciliation", by Eric van
Ginkel, in Journal of International Arbitration, Vol.
21, Issue 1 (2004), pp. 1-65, (www.kluwerlaw.com).
Conciliation
and Family Dispute Resolution in
Indian Legal System
-
- Dr. Y F Jayakumar
Family
plays a crucial role in any community or society. A family
is an association as well as an institution. Not only economic
needs but also, more importantly, the emotional needs of the
members are taken care of in the family. Today, divorces and
disputes over property inheritance are proliferating like
never before. The reasons may vary from economic conditions
to professional problems and psychological imbalances. The
author of the article made a socio-legal study of the causes
of the conflict in the family. It is important for the society
to devise means of protecting the family and also preventing
and resolving the disputes that could damage and destroy the
delicate fabric of the family. The author suggests conciliation
and mediation for the resolution of these disputes as these
mechanisms offer multifaceted resolution advantages like objectivity,
due focus on the issues, neutrality and independence. The
author also gives an overview of various statutory frameworks
in India supporting ADR mechanisms in family disputes. ©
2005 IUP. All Rights Reserved.
Arbitration,
Mediation and Conciliation: Differences and Similarities from
an International and Italian Business Perspective
--Alessandra
Sgubini, Mara
Prieditis and Andrea Marighetto
Though
the Italian and the US legal systems have fundamental differences,
the concept of arbitration is very firmly implanted in these
systems. Among the ADR mechanisms the concept of mediation
particularly has not gained much popularity in Italy but the
same has been widely in use in US. In US, mediation is a predominant
mechanism as it guarantees all the benefits of ADR mechanisms.
Most importantly it offers innovative solutions to the business
communities which are at dispute. Authors point out that the
concepts of mediation and conciliation in Italy are confused
with each other although there are fundamental differences
in their application. Conciliation is very common in Italy
and mostly employed in labor and consumer disputes. The article
traces the differences between arbitration, mediation, and
conciliation in the international and business perspective.
The authors feel that arbitration has certain disadvantages
as it also follows the adjudicatory procedures of court. The
authors conclude that mediation has emerged as the most predominant
ADR process as it helps the parties to find "business
solutions in business disputes" which are practical,
economical and durable.
© 2004 Bridge Mediation LLC (www.mediate.com). Reprinted with
permission. |
