HTM2119 Tourism Business, Ethics and Law

Methods in solving business disputes

By Jamie Lo2009/10

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Resolving Business Disputes

• Ultimate solution is to resort to the courts.

• Should endeavor to negotiate an amicable compromise – i.e., a reconciliation – with a settlement which is acceptable to them both.

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Options to resolve a dispute: • Mediation 斡旋• Conciliation 調解• Arbitration 仲裁• Litigation - the courts 訴訟

Resolving Business Disputes

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Methods in Resolving Business Disputes1. Mediation 

The process by which the participants in a dispute, with the assistance of an independent third party, identify disputed issues in order to develop a mutually acceptable settlement. The ‘win or lose’ mentality of traditional dispute resolving processes is actively discouraged.

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2. Conciliation 

A more informal type of arbitration. The reason for appointing a conciliator is to provide the parties to the dispute with assistance in arriving at a settlement.

 

Methods in Resolving Business Disputes

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Methods in Resolving Business Disputes

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3. Arbitration

The process whereby the parties to a dispute agree that an independent person will, acting in a judge-like manner, give a decision which they will be bound by. The decision of an arbitrator is called an award.

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Settlement agreement and an award may, with the leave of the court, be enforced in the same way as a judgment of the court.

The award of the arbitrator is final. Court of First Instance has the jurisdiction to review an award made by an arbitrator on the grounds of error of law

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Advantages of arbitration:

• It may be cheaper than the courts, because there is no need for legal representation.

• The case is heard in private, and neither the hearing nor the decision is reported in the press or in any law report.

• The person selected to act as arbitrator will have relevant technical expertise.

• The degree of formality at the hearing is decided by the parties themselves.

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• The parties to the dispute make all the arrangements for the hearing and thereby determine their own timetable.

• The decision of the arbitrator is final, and as a general rule there can be no appeal.

Disadvantage of arbitration:

• The main disadvantage of arbitration is its inconsistency.

Methods in Resolving Business Disputes

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4. Litigation 

Advantages of litigation: 

•   Strong tool for dispute resolution•   Generally legally correct decisions•   Possibility of several levels of appeal•  Final and binding

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Disadvantages of litigation 

•   Expensive, time consuming•   Tends to destroy business relations•   May not be the best business decision•   Trials, judgments are open to public

Methods in Resolving Business Disputes