Alternate Dispute Resolution, the Tribunal System, the Functioning of the LLP - Essay Example

Law Paper This paper effectively deals with the three following issues of England Law, which are as follows Alternate Dispute Resolution 2. The Tribunal System 3. The functioning of the LLP This paper shall be divided into three different parts, which shall cater to each specific part as a whole. All the three parts shall have an introduction, a main body and then a summary of the conclusion. Alternate Dispute Resolution Introduction: Alternate Dispute Resolution was initiated to allow for a robust mechanism of justice outside the purview of the Courts. This method of justice strives to create an alternative forum away from the Courts which is more relaxed in nature, which allows for a more chilled out atmosphere and where the procedural importance given to the cases is reduced in order to allow the human touch a greater importance. Following is the definition of Alternate Dispute Resolution: “Procedures for settling disputes by means other than litigation; e.g., by Arbitration, mediation, or minitrials. Such procedures, which are usually less costly and more expeditious than litigation, are increasingly being used in commercial and labor disputes, Divorce actions, in resolving motor vehicle and Medical Malpractice tort claims, and in other disputes that would likely otherwise involve court litigation.” Reading and understanding from the above definition, it can be interpreted that ADR is an alternate mechanism for justice which is less costly and more expeditious. Alternate Dispute Resolution consists of Arbitration, Mediation and Conciliation. Arbitration is a process by which the parties to the dispute appoint an independent Arbitrator who judges the case for the respective parties. This independent arbitrator is appointed on the behest of both the parties. Once the arbitrator is decided, the venue for the arbitration depends upon the parties to the matter. Unlike the Court system where the venue is decided as the courts itself, here the parties have more autonomy towards the way the case is going to take place. Hearings take place in accordance to the whims and fancies of the parties, and therefore the whole procedure is way more relaxed and chilled out. Mediation and Conciliation are the less popular form of ADR trials. These systems envisage a concept where the parties mediate and conciliate with the other parties on their own without the admission of an arbitrator. The process of Mediation and Conciliation is considered to be more in the zone of a personal conversation rather than a legal case going on. The idea of ADR has always been to allow a more open and calm approach towards justice delivery system. And it has ben quite successful in the Europe and UK with a streamlined method of arbitration, medication and conciliation process in practice. The ADR Group is a world-renowned commercial arbitration organization, which indulges in systematic approach towards the problem solving of arbitration. ADR thus improves the judicial system in the following ways: 1. Less Burden on the courts 2. Less expensive than litigation 3. Less time consuming than litigation 4. Less stressful than litigation 5. More freedom to the parties to represent their case 6. Greater opportunity for the party to be heard 7. More chances of better justice delivery since every argument is taken into proper consideration Tribunals The UK Tribunal system is extremely diligent in nature. The UK Tribunal system is part of the administrative justice system, which is the place for justice delivery. It is known as Non-Departmental Public Bodies. The Tribunals take the parallel role of dealing with issues ranging to different areas of law, such as Competition Law, Environmental Law, Taxation Law etc. The Tribunals are quasi judicial bodies which are responsible for granting justice as a means away from the basic court justice delivery system. “The tribunals are managed by the Tribunals Service, which is an executive agency of the Ministry of Justice. Recently, the tribunals have been re-organized, so that many tribunals have now been consolidated into a single service known as the First-Tier Tribunal. The First-Tier Tribunal includes tribunals such as the Mental Health Review Tribunal, the Immigration Services Tribunal, the General and Special Commissioners of HM Revenue & Customs, along with many others.” The tribunals have been specifically designed and created to augment the function of justice in a streamlined manner. The tribunals, as listed above in the paragraphs, vary from one area of law to another area of law. It is pertinent to note that tribunals have gone far ahead in the legal justice system. The Upper Tribunal is the topmost tribunal in the UK and the final tribunal of appeal. It hears matters from the lower tribunals as well as First Tier Tribunals. Employment Tribunals: The Employment Tribunals hear matters regarding employment related queries. This form of tribunal is not part of the upper tribunal system or the lower tribunals. The employment tribunals are independent from the rest of the tribunals. They have their own tribunal appeal system, which is independent off the Upper Tribunal in the UK. The Employment Appeals Tribunal hears matters from the Employment Tribunals of a lower rank as the highest body of employment tribunal system. This body does not have any relation with the Upper Tribunal, as it is not part of the basic hierarchy of the tribunal system. The Tribunals Service is responsible for managing the tribunals in the UK. This organization as mentioned before in the paper is a part of the Ministry of Justice in the UK. The Tribunal Service sees after the affairs of all the tribunals at large and manages the day-to-day affairs of the tribunals in the best way possible. This is done through a carefully managed system whereby all the tribunals are directly answerable and reportable to the Tribunal Service under the Ministry of Justice. Have LLPs been taken up by many professional (unlimited) partnerships? Why is this so? The answer to this question lies in the affirmative, that yes, LLPs have been taken up by most of the professional partnerships. The main reason for this kind of behavior can be categorized to the fact that unlimited liability provides more room for the partnership to make money and function in greater freedom. As quoted in a website below: “Some people feel that LLP lawyers won’t be so careful because they have no personal responsibility, but I really don’t think that will be the case. The principal reason for this is that all law firms these days are spending a lot of time on a whole range of risk management issues, which have been driven by the professional indemnity insurance market. We all have to put much more into risk management otherwise we won’t get cover.” It is imperative to note that the Limited Liability Partnership model is here to stay and thrive in the global market. All the stakeholders in this business need to understand that having this model greatly enhances their sales structures and that is why they go for this model as a method of adaptation. The professional players in this model substantiate the growth of the LLP modeal in various diverse sectors and that is why we are seeing resurgence in the professionalization of this model off late. It is quite easy for professionals to enter the segment of this market and progress from there. Separate legal personality and limited liability are two advantages of corporate status. Under what circumstances will they be misapplied? This is the final question, which needs to be answered in this paper. A separate legsl entity is one of the most fundamental principles of a corporate structure. This principle of corporate status emancipates from the Solomon case where is was held that a company has a distinct and a separate legal entity which is an exclusive individual identity of the company like no other. Limited liability on the other hand is a form of partnership where the partners only have a limited liability with respect the functioning of the partnership firm so as to allow greater freedom and space for the partners to function within. Now, both these statuses have their own advantages, however, there are many ways through which these statuses can be misapplied. In the case of separate legal entity, one company can hold major shares in different other companies, and through this principle avoid taxation and indulge in misappropriation of funds. Only once the corporate veil is lifted can we know about the functioning of the subsidiary companies. There is a lot of scope for misapplication in this case as the holding company can indulge in malafide actions with respect to its subsidiaries and try to got away in the claim that the subsidiary is a separate legal entity. With respect to the limited liability partnerships, there is a great scope of misapplication in situations where the partnership firms undergoes tremendous loss and lack of professional ethics, there might be no one to put the blame on and revive the firm. Due to the fact that the partners enjoy limited liability, the blame might never go to the right person and the wrong person might get away with serious blunders of financial and administrative nature in the firm. Referencing http://www.justice.gov.uk/tribunals/employment#judicial http://www.findlaw.co.uk/law/dispute_resolution/courts_system/court_and_tribunals/500115.html http://www.companieshouse.gov.uk/about/functionsHistory.shtml http://www.lawgazette.co.uk/features/no-more-deep-pockets http://163.1.114.14/tax/documents/WLDoc.PickandMix.pdf Read More