1. CONFLICTS
(including
conflicts)
by
Litigation
Alternative Dispute Resolution (ADR):
Mediation
Negotiation
Conciliation
Arbitration
Parties partially
requirements;
or
fully
resign
from
their
initial
positions
They try to solve the conflict by themselves or with the help of the
third party that they choose;
Parties of conflict are not obliged to end the process with the solution;
Possible even when one of the parties has brought the case to the court.
Possibilities:
Allows for parties to analyze the problem and identify the most
important questions.
Is possible even when one of the parties has brought the case to the
court.
Disadvantages:
Usually there are no coercive measures that would ensure that the
agreement is followed (exception Law 5/2012, arbitration).
Labor disputes
It is a private organ that does not have judicial power. Private organ
(arbitral) and public organ (judges).
Does not create legal precedent (in case of Spain case law).
Arbitration doesnt create case law. If I take arbitration as a proof
(prueva) of another case it is not valid.
You can complain for specific errors but not because you are not
happy with the resolution.
Arbitration is faster than litigation, which can take several years. Arbitration:
there is no publicity of the process. It is useful in business because of the
reputation of companies.
If I say that I go to arbitration then I should follow it and then the judge dont
take part.
Litigation
Art. 24 of Spanish Constitution: All persons have the right to obtain
effective protection by the judges and the courts in the exercise of their
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The end of the intervention of the arbitrator does not mean the end
of the regulation by the law. The arbitral award is regulated by the
law until its proper implementation.
ADR in Spanish Law:
-
voluntary nature,
equality of parties,
confidentiality.
Arbitration:
The Act does not foresee direct obligation to apply arbitration, but makes a
reference to the Royal Legislative Decree 1/1995 (Statute of the
Employees).
Art. 83 and 86 of the Royal Legislative Decree 1/1995 foresees that:
Provisions on arbitration can be included in the interprofessional agreements or sectorial collective agreements of
the level of the State or Autonomous Community.
It is applied when:
1. There is explicit written agreement of the parties to bring the
case to the arbitration.
2. While applying arbitration under this Act, court intervention is
forbidden.
3. Disputes maybe be considered internal or international.
4. Disputes are on matters of free disposition (available rights).
5. Enforcement of arbitral decisions is carried out under the Law
on Civil Procedure (Book III).
Power of decision,
Coercive power,
Management power,
Power of documentation
UC3M position
Is based on the Art. 24 of the SC: All persons have the right to
obtain effective protection from the judges and the courts in
the exercise of their rights and legitimate interests, and in no case
may there be a lack of defense.
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Creation of the law courts cant create legal provisions where they
exists, but can create them in the area or question where they do not
exist.
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