Business Law and Tribunal System - Assignment Example

Business Law Outline and critically evaluate the tribunal system. Tribunals can be defined as bodies that are not included in the hierarchy of court but they do have judicial and administrative functions (CURZON, 1994). Tribunals play an important role in increasing the efficiency of courts by solving millions of cases every year. Most of the disputes that the tribunals solve revolve around the problems prevailing between the citizens and the state regarding entitlement and rights (TRIBUNALS, 2013). Tribunals are communities and authorities that have the support of the Ministry of Justice. They are the expertise that listen to the citizens and businesses and solve disputes by taking the guidance from facts and law. Tribunal represents a disciplinary approach of addressing the atrocities regarding human rights (DIRKS, 2008). In the conference held by AJTC Scottish Committee a speaker named Bill Aikten said that tribunals operate in a society where individuals are aware about their rights and advice can be easily accessed. Therefore there is a need of innovative tribunals which must take into account all the backdrop of the changing laws (Conference Report: AJTC Scottish Committee, 2008). The legislation responsible for establishing the tribunal has also set out its functions, power and level of its jurisdiction and rights. The types of issues the tribunals consider include disputes between the citizens and any other party regarding the cost of product and service, complaints filed regarding the behavior of any department or professional, licensing issue concerned with a particular profession, disputes concerning the worth of land, dispute regarding tax and duty etc. The tribunals usually sit as panels, which have a legally competent chairman and members having their own areas of expertise. They give a final decision about the case after listening to the evidences. The limitations of the power of a tribunal are based on the jurisdiction of the case and accordingly give reward or impose penalties or fines. The types of decision tribunals make also include giving permission to people to stay in UK or refusing their VISA extension application, allowance or disallowance of certain benefits etc. (Introduction to Tribunals, 2013). The Chamber President of tribunals acts as a link between the senior president and the officers of the tribunals and the senior judiciary present outside the Tribunal. The day to day judicial administration functions are also carried out by the Chamber President. Employees of many European countries seek the help of the tribunals to solve the disputes between themselves and their employers. In such cases a qualified legal representative is involved by the tribunals who go through the evidence and make decision regarding discrimination, unfair employee dismissal and any sort of payment issue. Employees have the right for filing the complaint within certain limit of time after the incident has taken place. The individuals involved in the case are bound by law to be present at the time of the scheduled hearing and provide witnesses and testimony and answer the questions asked by the tribunals. The decision made by the tribunal is based the presented evidences and testimony. What is ADR and how does it improve access to the justice system? Alternative Dispute Resolution (ADR) is a system of methodologies that is used by parties to resolve their disputes without filing any official judicial compliant. The Black’s Law Dictionary defines ADR as “A procedure of settling disputes between two parties without ligation, by the means of mediation or attribution” (GARNER, 2005). Mediation can be defined as an informal form of litigation. Mediators are professionals who bring the opposing parties together in order to solve the dispute between them. They work on the settlement of argument between the two parties and conclude making a final decision which the parties in most of the cases agree to. Mediation is a commonly used procedure to settle the dispute between the investor and the broker. (STRASSER, 2005) Arbitration is a less complex form of trial where there are simple rules and regulations. Arbitral panel head the arbitration and it is responsible for making the decision too. In order to resolve a conflict both the parties agree to a single arbitrator or each of them select two different arbitrator and then these arbitrator mutually select a single arbitrator (BENNETT, 2002). There are different procedures that fall in the category of alternative dispute resolution (ADR) such as private negotiations, private litigation and private arbitration. ADR can be considered as an alternative to both litigation and arbitration. One of the most significant differences between ADR and litigation is that there are no tribunals, judges or arbitrators involved to give their decision and therefore no such question of right or wrong arises. The parties themselves choose a preferable procedure of ADR and assign an intermediately or facilitator who listens to the testimony, negotiates and provide a solution that is in favor of both the parties (NOLAN-HALEY, 2008). The SPO representative contacts the parties willing to participate in the ADR procedure. If both the parties agree to the ADR procedure than an ADR session is conducted by a professional mediator or intermediary. The parties have the authority to mutually select the ADR procedure. The person attending the ADR session must have the authority of resolving the problem. It is in the policy that the information disclosed during the session by any of the party will not be revealed by anyone else (FRANCIS, 2004). Most of the ADR procedure usually completes in one session and ends up in the time span of one to five hours. It is an efficient process and consumes less time than litigation. ADR usually announces a fair result. The intermediary involved is a neutral party who does not have any interest in the outcome of the case. The ADR sessions are not recorded or taped because of their confidentiality (CARRELL, 2008). Mostly the courts are not in favor that the parties must adopt ADR because it can act as a mean of obstruction of the rights to access court. Although the Courts do not explicitly support the procedures of ADR but they do agree that this method of using the mediators in solving dispute was a success at its initial stage. Research suggests the rate of success is higher when the parties mutually design and implement its own ADR procedures (TRACHTE-HUBER, 1996). Globalization is a reason of dissolution of barriers of trade. Globalization has made traveling quite easy and therefore it is easy for people to invest in other countries. This expansion of trade in the past few decades had led to the causation of different kinds of disputes. ADR has emerged as an effective way of privately solving disputes between parties. ADR procedures are not as time consuming as ligations and therefore they are more preferable. ADR procedures have helped people to find solutions to their problems and therefore they have increased the access of people towards justice (WARE, 2007). Have LLPs been taken up by many professional (unlimited) partnerships? Why is this so? In a traditional partnership there is unlimited liability on each partner; therefore all the partners involved are personally responsible and are liable for the debt. According to this traditional definition of business any of the partners can be personally sued to pay the debt of the firm. In small partnership almost all the partners run a firm and therefore it is reasonable for them to be held liable. In huge firms there are almost hundreds of partners involved in the partnership. In such firms there are increased risks that partners can be sued for something they aren’t aware of. There are bigger liabilities associated with big firms therefore in many cases the partners find themselves sued for millions (WOOD, 1997 ). The solution to such problems is Limited Liability Partnership. In LLP the liability of partners as well as shareholders is limited. LLP is a more advanced form of traditional partnership designed to address the drawbacks of the policies of general partnership. LLP is being used as an effective resource that enables the parties to collect their resources and invest in the firm for its development and for one’s own personal benefit. LLP provides opportunity to overseas clients to invest and get returns on their investment. This helps in the growth of economies (CODY, 2007). There are number of commercial reasons why businesses choose limited liability partnership over other business forms while carrying out the operations of the firm. There are many commercial benefits of LLP depending on the individual circumstances however some of the reasons why LLPs been taken up by professional partnership are mentioned below: Ease of establishment: Limited liability companies can easily and cheaply be incorporated like other firms at The Company House. The incorporation is possible the same day and minimum two partners are required for the formation of a limited liability company. It is not obligatory to make a file or an agreement at the company house between the members as to carry out the operations of LLP. Liability Protection: In traditional partnership each partner is responsible for actions of the other partners such as debt, illegal acts, etc. In limited liability partnership every partner is immune to the wrongful acts of other partners (SMITH, 2012). This structure of partnership protects a partner’s liability for the careless acts of any other partner of the firm. In such partnership a person is not individually responsible for the debt of the firm. Tax Advantages: In accordance with the Internal Revenue service every person involved in a partnership is responsible for filing tax (personal), self-employment tax and estimated tax. Not every partner in a partnership is responsible for the individual taxes imposed on other partners. The company’s credit and deductions are filed to the personal tax returns of the partners (MERRIFIELD, 2005). This is quite beneficial for the partners who are not involved in the daily operations of the firm due to their interest in some other businesses (MILMAN, 2001). Flexibility: The partners are given flexibility in the ownership of the company under the LLP. This provides the authority to the partners to decide how they are going to contribute their share in firm’s operations. The partners decide among themselves that how they want to divide the managerial duties depending upon the experience and expertise of each partner. The partners who have interest in the financial operations of the firm can decide not to have any participation in running the firm’s operation. However, they do maintain their ownership rights on the basis of share and investment they have in the firm. (SCOTT, 2013) Separate legal personality and limited liability are two advantages of corporate status. Under what circumstances will they be disapplied? Limited liability partnership has unique nature and therefore the laws related to the traditional partnership do not apply to it. There are certain rules and regulations imposed that do effect and disapply to the functioning of limited liability partnership. The advantages connected to limited liability partnerships are often exaggerated. Some of the major disadvantages of Limited Liability Partnership are: Strict Reporting: Onerous reporting requirement are placed on the firms having limited liability partnership. Such firms are required to submit their accounts and returns annually to the company house. They must also keep their record up to date and must also incorporate and update the changes taking place in the company’s accounts. Transparency: The information about the company which is held by the company house is accessible for the public too. Therefore the person interested can get all the details about the company. This can be favorable in many conditions as people can easily make the decision of investing in the firm. Accounting Requirement: Limited companies are more tax efficient than other firms and therefore strict accounting rules are imposed on these firms. This requires an increased input from the firm along with higher taxation. References Conference Report: AJTC Scottish Committee. (2008, April). Retrieved April 27, 2013, from http://ajtc.justice.gov.uk/adjust/articles/feature_scottish_conference.htm Introduction to Tribunals. (2013). Retrieved August 27, 2013, from http://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/judicial+roles/tribunals/tribunals Tribunals. (2013). Retrieved August 27, 27, from http://www.justice.govt.nz/tribunals Bennett, S. C. (2002). Arbitration: Essential Concepts. ALM Publishing. Curzon, L. B. (1994). Dictionary of Law (6th ed.). Danielle Dirks, E. A. (2008). International Criminal Courts and Tribunals. Encyclopedia of Violence, Peace, & Conflict, 1043–1054. E. Wendy Trachte-Huber, S. K. (1996). Alternative dispute resolution: strategies for law and business. Anderson Pub. Co. Francis, T. &. (2004). Alternative Dispute Resolution: A Developing World Perspective. Freddie Strasser, P. R. (2005). Mediation: A Psychological Insight Into Conflict Resolution (2nd ed.). NewYork. Garner, B. A. (2005). Blacks Law Dictionary (8th ed.). West Publishing Company. Merrifield, D. B. (2005). Limited Liability Partnerships. Research technology management, 48(5), 16. Michael R. Carrell, C. H. (2008). Negotiating Essentials: Theory, Skills, and Practices (2nd ed.). Milman, D. (2001). Limited liability partnerships. Palmers In Company, 1-2. Nolan-Haley, J. M. (2008). Alternative dispute resolution in a nutshell (3rd ed.). West Publishing Company. Scott, S. (2013). Limited Liability Partnership Advantages & Disadvantages. Retrieved August 28, 2013, from http://smallbusiness.chron.com/limited-liability-partnership-advantages-disadvantages-4429.html Smith, P. (2012). Limited Liability Partnerships Handbook. Bloomsbury Professional. Tom Cody, D. A. (2007). Guide to Limited Liability Companies. Chicogo. Ware, S. J. (2007). Principles of alternative dispute resolution. Thomson/West. Wood, R. W. (1997 ). Limited liability partnerships: formation, operation, and taxation. Read More