1 Employment Law

Introduction

The Agency Workers Regulations 2010 came into force on 1 October 2011 as an implementation of the European Union Directive 2008/104/EC on Temporary Agency Work. This statute gave rise to sweeping changes on how agency workers were to be handled. The regulations are applied to workers sourced to firms from temporary work agencies and the regulations give the agency workers various additional rights.

These changes provide a fundamental shift in the Employment Law in the United Kingdom.  Specifically, the provisions for handling temporary workers have been changed and other considerations previously not in law have now been codified. These changes will have a great impact in the operations of human resource departments in organization. It is therefore critical that firms and organizations should acquaint themselves with the provisions of the spirit as the stipulations imply to avoid litigation.

Sexual discrimination is one of the institutionalized vices that has dogged the working place. However, with the passing of the anti sex discrimination statute, the situation has since changed. According to the statute, no employee should be subjected to unfair treatment. Even in the case of a male employee, the statute outlines the course of action to be taken. The statute stipulates that no employee would be granted special attention in terms of sex. The exception comes in the case of women in view of pregnancy and childbirth.

A case example of the anti sex discrimination state is the case of Eversheds who appealed to the Employment Appeal Tribunal where he was awarded 100,000 pounds in compensation. The case of Eversheds was that his employer exhibited unfair favoritism towards female employees which worked against him.

Under the Agency Workers Regulations 2010, an agency worker is obliged to offer services to the agency, but whose services benefit a third party firm which has a contract with the agency. The definition of agency worker has been subject to intense debate and academic authorities are divided on which particular cadre of agency staff qualifies to be considered under this statute (Howard 2011). He further argues that such a definition as provided for in the statute may as well include workers who are providing services under a master services agreement such as cleaners.

Another stipulation which protects the right of the employee is the TUPE regulation. Under the regulation, an employee working for a business or other premises is protected by law from unfair dismissals even on acquisitions.  Under the stipulations, an employee can only be dismissed under technical or economical conditions. A case example of this stipulation was the Spaceright Europe Ltd v Baillavoine & Anor. Mr. Baillvoine was wrongfully dismissed from work and he was subsequently compensated. 

The question of who is actually an agency worker is debatable. Before arriving at a conclusion that one is an agency worker, considerations should be made in reference to the working arrangements. There are avenues for shortchanging the system through the use of umbrella corporate bodies to act for and on behalf of the hirer (Harvard Law Review, 2012). In this scenario, the umbrella corporate handles all the human resource issues fro other companies including paying dues.

One of the rights that apply ab initio is the right to be given access to the same collective facilities as comparable employees or workers of the hirer. The implication of this right is that the hirer has to ensure that the agency works have equal access to the company’s resources as the permanent staff. Significantly, this will mean that the Human Resource department will have to put in place mechanisms that identify all the workers of the company including agency workers on an equal basis.

The other right that applies right from the start of the workers’ assignment is the right to be informed of any arising vacancies by the hirer as comparable staff would be informed. This means that the employees are under legal obligation to give the agency workers preferential treatment in informing them of arising vacancies as they would do for the permanent workers of the company. Along this line, the issue of defining “comparable worker” is also a subject of debate. However, it is envisioned under this statute that if there are no broadly comparable employees, this rights will not apply.

The twelve week qualifying period is also a potentially game changing provision that has far reaching implications on the human resources operations fro companies. The regulation stipulates that if a worker accrues twelve continuous months in the same assignment in the same company, then the worker becomes entitled to the same terms and conditions he or she would have entitled to if directly recruited by the hirer.

This report aims to discuss the impact of the changes in Agency Worker Regulations 2010 in the human resource department.

The Qualifying Period

The right to equal treatment in respect to terms and conditions can only apply if the agency worker works in the same role for a hire for twelve continuous weeks. Working in the same role is an important factor in considering the twelve week period because any change in roles may render the previous work period obsolete. However, before an agency changes the role of a worker, it is a requirement by the regulations that the worker should be notified on the new role. According to the regulations, a break between assignments of less those six weeks shall not affect the continuity of the twelve week qualification process. The regulations further make provisions for breaks that exceed six weeks such as sickness, pregnancy or maternity and other statutory recognized breaks.

The regulations also provide for mechanisms to prevent devious agencies from preventing agency workers from qualifying for equal treatment. Some agencies may structure assignments in such a way that makes it difficult for the agency worker to meet the threshold for qualifying fro equal treatment. If a worker has completed more than two assignments with the hirer or the agency work has held more than two roles with same hirer, then he or she can seek redress from the employment tribunal. If the tribunal finds that there was a deliberate attempt to frustrate the worker from qualifying for equal treatment, the agency can be fined up to five thousand pounds while the affected worker would be considered qualified for equal treatment.

These provisions imply that the human resource department at the agency and the hirer should be keen to observe the twelve week qualifying period for agency workers. A hirer should be aware of the cost implications of equal treatment from agency workers and if the hirer is not in a position to cater fro the equal treatment, then proper arrangements are to be set out to outline workers who are not entitled for the treatment to be notified. However, this is should be done in tandem with the stipulations in the law with the objective of avoiding penalties for frustrating an agency worker from qualifying for equal treatment.

Establishing Equal Treatment

 The equal treatment envisioned under the Agency Workers Regulations 2010 extends to basic working conditions. Specifically, the elements of pay holiday entitlement and the number of working hours are the issues considered in evaluating equal treatment under the Regulations. Thus the equal treatment under this statute is different from those of anti-discrimination that are under the employment legislation. Under the existing employment legislation, the equal treatment provisions are extensive and have a wide application. Therefore, the regulations are a bit relaxed in comparison to the provisions of the anti discrimination requirements in the employment legislation.

Secondly, the test of equal treatment under the Regulations draws no comparison in the treatment of an agency worker and an actual ‘comparator’. Instead, a qualified agency worker will under the Regulations have stipulated entitlements by the hirer on the first day of assignment other than through a temporary work agency to carry out the same job. This means that the regulations do not require or create an issue of comparable worker to whom the equal treatment will be based upon (Sargeant & Lewis, 2008). In retrospect, a hirer has a lee way to introduce the terms and conditions that would have been in place had it hired the agency worker directly.

The issue of establishing a “comparator” is debatable depending on the perspective that the hirer takes. For instance, the “ comparator position may only be possible if the person was hired on a permanent basis from the first day therefore the terms and conditions might not be necessarily applicable in the case of the agency worker. The hypothetical question that needs to be answered is what terms would the agency worker be accorded in view of doing the same job. The case is more straightforward if there is a position in the hirer’s company that is directly related to that of the agency worker.

The regulations also stipulate that once an agency worker has qualified for equal treatment, he or she will continue to be entitled fro equal treatment for the remaining duration of the assignment and in other subsequent assignments as long as the six week discontinuity allowance is not lawfully exceeded. The ongoing entitlement means that if the terms of equal treatment are improved, the agency worker is also entitled to the improved benefits.

However, the right to equal treatment regarding pay may be waived in cases where the agency guarantees a form of permanency. The ‘Swedish derogation’ allows derogation from the right of equal treatment with respect to pay. Agency workers who are permanently employed by their agency and who are guaranteed at least fifty percent of their basic pay in any week even when the agency cannot find work for them are not entitled to the provisions of equal treatment. The rights relating to the working hours and entitlement to holidays still apply irrespective of the permanency of the job of the agency worker. The restriction that an agency may not terminate a contract to an agency employee without at least giving him or her benefit of salary for four weeks without work gives a huge financial liability to the company.

Agency Workers’ Rights of Access to Facilities and Amenities

From the first day of the assignment, agency workers are entitled to access facilities and amenities. The agency workers are not supposed to receive less favorable treatment compared to comparable direct employee in terms of access to the hirer’s facilities and amenities. This is a fundamental right under the statute and it should be implemented from the first day.

According to the Regulations, the expression ‘collective facilities and amenities’ is not defined but the listed examples are transport facilities, canteens and childcare facilities. In the letter and the spirit of the law, it is not expected that discretionary facilities and amenities will fall into the scope of this Regulations. For instance, the agency worker may not be necessarily entitled to membership into the hirer’s on-site gym. This is because the facility is not ordinarily related to the execution of the day to day duties of the agency worker.

The regulations are also restrictive especially in considering transport service. The hirer is not expected to carter for season ticket loans and company car allowances.  Such services are considered to be discretionary offers and therefore do not merit to be considered as part of equal treatment. Also, the provision of these services is basically under a permanent employee package and hence not under consideration fro equal treatment.

A right to be treated equally in terms of access to facilities and amenities is not to be taken as a right to absolute access. For example the access to parking space although part of equal treatment, is subject to “first come first serve basis”. It would not be deemed to be a breach of equal treatment if an agency worker misses a parking space if they miss parking space when they come late to job. The same applies for issues where a worker is required to be on a waiting list before they receive the benefit.

The hirer has a right to lodge an objective justification concerning provision of equal access to facilities and amenities. It is not unlawful for a hirer to fail to offer equal access to facilities if the hirer can objectively justify the reason for not offering the facility or amenity. The laws governing rights of part-timers and fixed term workers are the basis for the test of justification.

Recommendations

The paper focused on exploring the impact of the new Agency Workers Regulations 2010 and their impact on the human resource management in relation to the existing Employment legislation. Because the right of access to facilities and amenities is immediate, hires need to analyze the potential impact this may have on their organizations. Hirers also need to identify all the facilities and amenities that may fall into this category since the list provided in the Regulations is not exhaustive. This will help to put the hirers in a good position to estimate the impact the regulations may have in the company.

From the analysis, it is also evident that agency workers may opt to lodge legal challenges concerning their qualification to be considered for equal treatment. This might arise where the agency workers have undertaken periodic assignments and the cumulative time span may add up to twelve weeks. Hence, hirers need to do a careful analysis of the pattern and duration of the assignments that it offers. Further, the hirers need to work closely with the agencies to ensure that their engagement with agency workers is within the law. The periodicity and nature of assignments should be communicated to the agency workers according to the prescribed manner (Mamorsky, 2001).

The other recommendation is that the hirers need to put in place structures that define the entitlements of employees at various levels in the corporate ladder. This is important so that it becomes easy when defining the comparable employee factor in respect to equal treatment. It is also critical that hirers should do sufficient research to determine whether it is more cost effective to employ temporary staff than to source them from employment agencies.

Conclusions

It is evident that these changes in agency workers regulation will change the way human resource departments handle the agency workers. Compliance to these regulations will need a closer relationship between the agencies and hirers. This may entail revealing of sensitive information in order to ensure that no information is overlooked that may be in contravention of the statute.

The implementation of these regulations may result in increase in costs of supplying the services of agency workers. The impact of the rise in costs may have undesirable effects like transfer of costs to the consumers and this may harm business in the long run. It is advisable that agencies and hirers should build cooperation between themselves in order to ensure compliance. 

Bibliography

Cabrielli, D. 2011. Law Express: Employment Law. New York: Pearson Publishers.

MAMORSKY, J. D. (2001). Health care benefits law. New York, Law Journal Press.

SARGEANT, M., & LEWIS, D. (2008). Employment law. Harlow, Longman.

0 Rape

            The act of unlawfully committing sexual intrusion or sexual intercourse is defined as rape. Over the years, rape laws have been revised as the cases increase in dynamism. Historically, it was defined as sexual intercourse, unlawfully, against the will of a woman. The crimes essential elements were lack of consent, force, and sexual penetration. Raped women were expected to have resisted fully otherwise the rapist would be acquitted. A man could also have intercourse with an unwilling wife, but that was not regarded as rape. Courts and state legislatures, in the 1970s, began redefining and expanding rape crimes to get up to date with modernity’s ideals of legal propriety and equality. A majority of the states now define rape sans the victim’s sex. The prosecution can now prove that the victim objected verbally to the intrusion or penetration. Persons either mentally or physically helpless, or under a certain age are deemed not legally capable of consensual sex. The modern laws against rape are a vast improvement on the older ones but can be stricter. This paper aims to show how these laws can be made stricter with specific examples.

1.      Section 2241: Aggravated Sexual Assault

a)      By force or threat – Whoever, in the special maritime and territorial jurisdiction of the US or in a federal prison, intentionally causes another person to engage in a sexual act – by force against that person or by threatening by fear that any person will be harmed (Michael & Mike 152).

b)       Deals with other means aggravated sexual abuse like render someone unconscious and raping them, or administering via threat a substance that impairs a person’s control conduct and then engages in sex or attempts to do the same.

c)      Deals with children and targets whoever crosses a state line intending to commit a sexual act with a person not yet 12 years old.

In the case where a girl below the age of 12 is raped in her home state, these federal laws cannot apply. Some states have very lax laws against sexual intercourse with minors and as such, most cases that happen inside the state boundaries of these states are dealt with surprisingly leniently (Burgess-Jackson 178). Seeing the strict and detailed nature of the other laws in this section, the federal government, still unbelievably fails to prosecute cases involving the most vulnerable of the targets occurring in home states, while the laws in some of these states are not adequate. To remedy this, the congress, has to legislate federal laws that target rapists of minors no matter where the crime occurs. While some states like Florida have very strict laws prohibiting sexual intercourse with a minor, others like Nevada have laxer laws that are minimal compared to those of the former.

2.      Section 2243. Sexual abuse of a minor or a ward

b) Of a ward. – “Whoever, in the special maritime and territorial jurisdiction of the US or  a federal prison, knowingly engages in a sexual act with another person who is in official detention; and under the custodial, disciplinary or custodial authority of the person so engaging; or attempts to do so, shall be fined under this title, imprisoned under this title or both” (Caringella 198).

Most wards are delinquent juveniles who have been ordered to be under guardian care. Since these children are already victimised, authorities do not follow up most cases that involve them as victims. This can in part be explained by the light sentences that a conviction carries. There are cases in which perpetrators are not afraid of committing rape since the sentence is so light. The wards are also in a point of their life where they are shy and withdrawn. Combined with the fact that they are wards by order of the same authorities that they should be reporting to makes reporting of these cases rare and, in most cases, they are not believed. Strengthening of this law could be a deterrent for perpetrators, who will maybe think twice before they victimize the wards. Overall, a one-year sentence is too lenient.

            Sexual assault is a horrific crime that is misunderstood (Abbassi 256). As well as being the most intimate type of violation, it is also myth-enshrouded crime. While rape is considered a crime that is only sexual, it in fact, is about humiliation, control, and power. It also happens to be the one crime where the victim shares some of the blame. Some are tragically not believed and have to live with the guilt of false accusation for the rest of their life. Lesbians and both straight and gay men are more likely to fail in reporting a rape for investigation and further prosecution, fearing the ridicule (Ashcraft 98).

            The destruction of these misapprehensions has led to advocates for survivors of sexual assault in the country to focus on educating the public with the aim of reducing rape cases. In the meantime, some vital steps can be taken to make the laws against sexual assault stricter (Lewis & Cathi 178). The first would be through the lengthening of the limitations statute for sexual assault from what it is now, five years, to double that amount of time at ten years. There should also be the elimination of the limit of time it takes to confer a felony indictment in case there has been DNA evidence collected.

            Another one would be to allow victims of sexual assault to file claims for expenses incurred when moving from one state to another from the compensation fund for victims. This would aid the assault victims attacked, where they live in continuing with their life away from the present danger of further attacks by the victim’s friends and relatives. This would allow them to move away from this situation. It would also act to encourage reporting and follow up of sexual assault cases because were they to continue  living in their original homes, they would be open to ridicule, on to of intimidation.

            Other vital legislations, which would bolster existing laws against rape or sexual assault, are varied. One would include the specifications, which sexual assault records of clients of women’s shelters blueprints and advocate organizations are not made subject to laws on public laws on information. These are not agencies of the government, thus should not be made to comply with these laws. Should this pass, it would ensure that women are more willing to report sexual assault cases. Opening up these records to the public could act to put these women in danger, making them vulnerable due to the same circumstances that made them attempt to seek help. This would discourage the women due to the ridicule and threats that would result from the publication of the records (Odem 178).

            Another way to make laws against rape stricter is legislation of more laws, which would give women who were impregnated by the rapist during the sexual assault a means of legally denying the rapist visitation rights and child custody. While it is unnerving that a rapist could have access to both of these rights, most states have no legislation to deny the rapist these rights. If this law were to be legislated, it would mean that most women who prefer to have abortions instead of giving the rapist a chance to re-open the wounds that are yet to be healed. These abortions cause many women psychological problems.

            A different strengthening mechanism for sexual assault laws would be giving the survivors of sexual assault the right to avail both themselves and an advocate of sexual assault during the proceedings of the forensic medical examination (Weisberg 209). This would allow the victim to have a qualified professional advocate present to provide information, support and counselling to the victim about their rights. This would give victims of rape courage to report-to-report these cases since some of them are discouraged by the common myth about rape examinations being intrusive. The advocate would encourage the victim, and thus such a law would help most women dispel the myth via the knowledge that a legal profession is with them.

            Finally, it would be a great stride to define further consent beyond what is currently considered, what the actions that the perpetrator being investigated for are. This legislation would take in to account all the actions that the victim undertook to say no or resist physically. The legislation would provide that sexual assault occurred if the victim did not agree by conduct or words. This is an improvement on the current one that stipulates that the victim has to prove that she said no.

            In conclusion, the above strengthening measures are not expensive or at all radical. Rather, they are reasonable, basic, and much needed in order to change and strengthen the rape laws in the country. Most of the problems arising in sexual assault or rape are concerned with a fear of retribution, shame, and psychological issues. Dealing with these will ensure that sexual assault takes upon the serious crime look that it deserves.

 Works Cited

Abbassi J, Lutjens S. Rereading women in Latin America and the Caribbean : the political economy of gender. New York: Lanham, Md, 2009. Print.

Ashcraft D. Women's Work: A Survey of Scholarship By and About Women. London: Routledge, 2009. Print.

Burgess K. A most detestable crime : new philosophical essays on rape. New York: Oxford University Press, 2009. Print.

Caringella S. Addressing rape reform in law and practice. New York: Columbia University Press, 2009. Print.

Lewis S, Cathi A. Dealing with rape. Johannesburg : Sached Books, 2010. Print.

Michael T, Mike M. Cases & Materials on Criminal Law. London: Routledge, 2011. Print.

Odem E. Confronting rape and sexual assault. Wilmington: Del. SR Books, 2009. Print.

Weisberg D. Applications of feminist legal theory to women's lives : sex, violence, work, and reproduction. Philadelphia: Temple University Press, 2006. Print.

0 Contract Manager and the Arbitration Specialist_ Comment on a Proposed Draft

The following draft clause has been inserted into a capital construction contract (the Agreement), to be signed between your company (based in Dubai) and company based in Sana’a (Yemen). Being the contract manager and the arbitration specialist, you are requested by the C.E.O. to comment this proposed draft and, if needed, recommend the necessary amendments.

“Any dispute or whatever nature arising out of or in any way relating to the Agreement or to its construction or fulfilments can be referred to arbitration. Such arbitration shall take place in Dubai or Sana’a, or any other place as the parties may agree, and shall proceed in accordance with the Rules of Arbitration of the LCIA-DIFC in Dubai. Both parties hereby agree that, at least, one arbitrator should be Dr Karim Akram.”

Introduction

Arbitration is by definition a form of alternative dispute resolution that is generally carried outside the court system. Typically the involved parties involved in a dispute will refer it to a number of people who are known as the arbitrators. The decision of the arbitrators involving the dispute is taken to be final and all parties involved in the dispute are bound by such decisions. The basic contention in employing arbitration is to utilise a third party to scrutinise the available evidence to reach an acceptable decision that is legally binding on the disputing parties. In addition the decisions reached at through arbitration are taken generally as enforceable[1]. In addition to arbitration, the road to mediation can also be pursued as a means of alternative dispute resolution but such a discussion is beyond the scope of the current issue at hand. However, it must be taken to note that the outcomes of mediation are typically non binding on the involved disputing parties.

Arbitration has traditionally been in use for the settlement of commercial disputes between parties. More specifically, the practice of arbitration has been applied to international commercial disputes since the issue of court jurisdiction is bound to arise in international commercial disputes. The general rules applicable to arbitration are often encased in the commercial contract that is created between the involved parties.

Another aspect of the arbitration process is the role of the arbitrator. As opposed to mediation, the arbitrator will not have to find common ground between the disputing parties. Instead, the arbitrator is only bound by tradition to examine the presented evidence and to reach a final verdict without any requirement to find common ground. The arbitrator can and generally does provide a determination of the incurred liability and also might subscribe the quantified damages.

Applications of Arbitration to the Current Scenario

The current arbitration clause that is being inserted into the commercial agreement will serve to simplify the alternative dispute resolution mechanism. It must be taken into account that the current commercial agreement is not limited to one geographical domain but instead, it is composed of a company in Dubai and a company in Yemen. Any arbitration carried out in these circumstances will amount to arbitration for international commercial transactions. To be more specific, the current arbitration mechanisms will encompass the domain of arbitration systems in place in the Middle East. In historical terms, dispute resolution has always been a problematic aspect of commercial transactions in the Middle East.

It was not until recently that arbitration mechanisms of a regional nature were created in the Middle East. A number of arbitration centres of international application are available in the Middle East including the Dubai International Arbitration Centre (DIAC). In recent years several Middle Eastern nations have subscribed to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known simply as the New York Convention). In light of these developments, it could be said that the Middle Eastern region is showing a progressive shift for a proper arbitration culture. The more typical approach in the application and implementation of these arbitration awards has been a focus on foreign investors. The massive transformations in the arbitration culture in the region are being undertaken to provide foreign investors with cover. The basic contention here is to create arbitration provisions that are progressive, transparent, accessible and identifiable for foreign businesses.

However, it must be kept in mind here that the current arbitration clause being inserted into the commercial contract will serve not foreign businesses but two business entities based in the Middle East. This has significant implications for the current arbitration clause since the nature of arbitration is deemed to differ as will be discussed later.

UAE’s move to Arbitration Progression

In the early years of the twenty first century, UAE did not possess a robust or applicable framework for arbitration. It was only in 2006 that the UAE adopted the New York Convention as its 138^th member. Keeping in line with this progressive transformation further changes were introduced in 2008. For the first time, the UAE government has created an arbitration law that has been released for commentary. Furthermore, the Dubai International Financial Centre (DIFC) put in place a wide-ranging arbitration law that provides a framework for arbitration though certain shortcomings still exist. Lastly, the DIFC and the LCIA teamed together to fashion the new DIFC-LCIA Arbitration Centre that is located in Dubai. These moves tend to signify that the move towards arbitration frameworks is strong in Dubai and the subject arbitration clause can be taken aid of if a need arises. However, the state of affairs in Yemen must also be looked into in order to comprehend if arbitration is permissible under Yemeni law or if a framework of the kind exists.

Arbitration Framework for Yemen

Yemen has only recently put together an arbitration framework with other regional players such as Jordan and Kuwait. A chief difference between the Yemeni arbitration framework and the UAE arbitration framework is the basis on which they are construed. The UAE arbitration framework is composed largely on Shariah law but the Yemeni arbitration framework is composed of a looser system that allows the application of non-Shariah law[2]. This move has been taken in order to allow arbitrators to apply any set of laws that the disputing parties may choose for application. These sets of laws may be composed of non Shariah compliant laws as well. The Yemeni framework has been created with the contention of luring foreign investors no matter what sets of laws need to be applied for arbitration.

Implications for the Current Scenario

In turn this means that the Yemeni framework may allow arbitration for matters such as speculative contracts or for example matters relating to the award of interest[3]. When arbitration clauses are construed in states that apply Shariah law, the arbitration awards must account for[4]:

-       description of the subject dispute;

-       findings in light of the Shariah as applicable to the dispute;

-       award reasoning in the light of the principles of the Shariah;

-       the final decision.

Another contentious issue in the Middle East is the application of arbitration as approved by a court. Most Middle Eastern countries mandate that an arbitration award cannot have res judicata unless it has been sanctioned by a court of law. This principle stands true without any consideration for whatever sets of laws have been chosen for the arbitration.

Interestingly enough, the Yemeni arbitration framework provides that an arbitration is binding on the disputing parties but the UAE framework does not. Instead, the bereaved party may approach a court of law and invalidate the arbitration on the grounds that it was not sanctioned by a court. In the current arbitration clause, it has been mutually agreed that the arbitration rules shall be the Rules of Arbitration of the LCIA-DIFC in Dubai. This would tend to indicate that nowhere the arbitration takes place, the arbitration could still be brought to court because there is such a shortcoming in the UAE arbitration framework. Hence, if our company and the Yemeni company were to fall into a dispute, the arbitration carried out could be challenged in a UAE court. This would also mean that if the Yemeni company does not like the arbitration award provided, they have legal recourse available in the UAE. Alternatively, it could also be argued that our company would have legal recourse available in Yemen and if required a Yemeni court could be prodded to judge the binding effect of the arbitration. However, in both cases, the essential advantage of arbitration would be lost altogether.

In either case if the arbitration award is taken to court for either its legal binding effect or its enforceability, there are significant chances that legal entanglement may occur. This would tend to delay the final judgement over the issue and the dispute would tend to assume a longer form than wanted. This would essentially jeopardize the business interests of our company since the applicable law would be left to problems of jurisdiction. Also, in this case the enforceability of the final arbitration award would be endangered as the enforceability in either jurisdiction would come into doubt.

Other than the problem mentioned above, there are also significant chances that the Yemeni company may choose legal recourse in case that the arbitration award chooses to use non Shariah law. In such a case, the position of our company would tend to be very weak since the UAW law does not provide for application of non Shariah law. Such circumstances would ensure that our company would lose the case and may have to compensate the Yemeni company. There are also chances that the judge may choose to fine our company based on our choice of the applicable laws.

In addition to the above, the current system of court review in place in UAE means that the arbitration award may not be the final word on the dispute. The court review procedures generally have enough room to allow for unwanted judicial management. This in turn tends to promote judicial meddling that could well easily result in procrastination and unwanted delays as to the final outcome[5]. The enforceability of the arbitration award is at risk in the UAE based arbitration system but using the Yemeni arbitration system exposes our company to greater risks.

In these circumstances, another notable issue is that Yemen is not as yet a part of the New York Convention while UAE is already a part of it. On the one hand, the New York Convention poses stringent limitations to why a country’s courts could reject a foreign arbitration award[6]. However, on the other hand, the New York Convention makes it abundantly clear that a country’s courts may choose to reject a foreign arbitration award that is opposed to the public policy of the country in question[7]. Again, as mentioned before, if non Shariah laws are chosen for use in the arbitration award, there are chances that the Yemeni company may use the grounds described above to revert the arbitration award.

The current understanding in the arbitration clause looks towards the arbitration rules shall be the Rules of Arbitration of the LCIA-DIFC in Dubai. However a look into these rules will make one realise that the framework provided for arbitration is loose ended and tends to promote vagueness. One chief criticism of the current arbitration system in UAE has been the fact that its rules can be moved ostensibly from one direction to the other. In case that arbitration is required, the Yemeni company may choose to meddle up the UAE arbitration laws so that delays are created in choosing the right arbitration laws. This would again promote inefficacy of the entire arbitration system and would tend to reduce its overall worth.

At this point in time, the UAE does not have a common arbitration law. The UAE instead has chosen to include the arbitration clauses in the UAE Civil Procedure Code. Consider for example the following excerpt from the UAE Civil Procedure Code regarding arbitration[8]:

“It is important to note that disputes arising out of commercial contracts to which the Dubai Government or any of its subsidiary departments are a party are not governed by the UAE Code. Such disputes, if submitted to arbitration, fall under other specific laws.”

In this case, it has been made abundantly clear that arbitration laws for government departments and their subsidiaries are not subject to UAE laws. This may be seen as another indication of the overall weakness of the arbitration framework in Dubai since the government fails to support it for its own purposes.

Another problem with the current arbitration clause is its non conformance to Dubai’s arbitration clauses in the UAE Civil Code. Article 205 of the UAE Civil Code makes it abundantly clear that arbitrators can only take action if they were specifically named in the commercial contract. In our case, only one arbitrator has been chosen while the others remain unidentified which is against current UAE law. If brought to court, this may serve as a strong grounds to annul the arbitration award leaving our company vulnerable. In addition, Article 206 of the UAE Civil Code stipulate certain conditions for the arbitrator that may be put to question by the opposing party if the arbitration award is taken to court. Being a question of fact, it may take a long time to settle such an issue which would again lead to unwanted delays.

Even with these shortcomings being present in the current arbitration framework, there is an overwhelming move to favour arbitration in UAE over the past few years. Firstly the UAE courts have made it abundantly clear that the contracting parties must fulfil the “conditions precedent” before referrals for arbitration can occur[9]. Failure to do so is considered as pact sunt servanda and arbitration can thus be rejected for an in court settlement. In addition, the UAE courts have made it clear that public order cannot be used as a ground to set aside an arbitration award[10] though domestic public order could be used as a valid cause. This serves to indicate that arbitration awards are on the rise and that the courts in UAE are actually providing greater independence and leverage to such arbitration awards. Hence, arbitration awards are being preferred as the means to decide on disputes in commercial transactions rather than the courts as previously.

Recommendations

Courts in UAE have tended not to recognise or enforce any arbitration awards that had minor shortcomings in their proceedings or in their content[11]. A pertinent case is International Bechtel Co. Ltd. v Department of Civil Aviation of the Government of Dubai where the award was rendered void because the arbitrator had chosen a different method than the UAE courts to swear witnesses[12]. A number of legal practitioners have expressed the fear that arbitration awards are essentially at the mercy of the courts[13]. This can be avoided in the current case by ensuring that procedural shortcomings are removed. For one thing, the number of arbitrators has to be odd and has to be decided before hand as per the UAE Civil Code. Hence, the arbitration clause should list the names of the arbitrators or should remove the “at least” phrase with respect to the current arbitrator. Therefore, the arbitrator in this case would be Dr. Karim Akram alone or if other arbitrators are needed, there names should be listed as well.

Along with problems related to arbitration awards in foreign countries being recognised in UAE, there is also the problem of their enforcement. Practitioners have claimed that the enforcement of arbitration awards under the UAE Civil Code are lengthy and often unpredictable leading to their loss of reliability as a form of alternative dispute resolution[14]. This situation can be dealt with by assigning Dubai as the preferred location of arbitration so that if any dispute arises, the arbitration is carried out at LCIA-DIFC without having to decide where to arbitrate after the dispute arises. This would tend to reduce the time required for arbitration and would also avoid length delays.

Based on the arguments presented above, it is obvious that the current arbitration framework in UAE needs careful usage in order to guarantee success. It is therefore proposed that the arbitration clause be modified as shown below to extract better results:

“Any dispute or whatever nature arising out of or in any way relating to the Agreement or to its construction or fulfilments can be referred to arbitration. Such arbitration shall take place in Dubai, and shall proceed in accordance with the Rules of Arbitration of the LCIA-DIFC in Dubai. Both parties hereby agree that there should be one arbitrator who should be Dr Karim Akram.”

Conclusion

The UAE Civil Code is limited in its application related to arbitration at this point in time. One problem is the limited coverage provided by the Code and another problem is the determination of how the provisions of the Code are to be applied[15]. Additionally it has been felt that the role of courts in arbitration is overwhelming. The courts may choose to intervene and supervise the arbitration process. This in itself tends to undermine the authority available to the arbitrator(s). Under Article 209 of the UAE Civil Code, the arbitrator does not have any power to impose fines and neither can he enforce his judgment on the disputing parties. In order for an arbitrator to go for enforcement, the arbitrator has to go to a court of law again. However, these aspects of arbitration in the UAE are changing and are giving way to arbitration awards that are held up in most circumstances. Where one approach could be to relinquish the current arbitration clause, another could be to strengthen the arbitration clause to reflect contemporary legal realities.

In this sense the arbitration clause should be modified as shown in the recommendations section above so that the company receives due coverage under existing arbitration laws in the UAE.

References

Books

Arthur Sullivan and Steven S Sheffrin, Economics: Principles in Action, (Upper Saddle, New Jersey: Pearson Prentice Hall 2003)

Case Law

Dubai Court of Cassation, 124/2008

Dubai Court of Cassation, 146/2008

Journal Articles

Arthur J. Gemmell, Commercial Arbitration in the Islamic Middle East, 5 Santa Clara J. Int’l L. 169, 170 (2006)

Mark Wakim, Public Policy Concerns Regarding Enforcement of Foreign International Arbitral Awards in the Middle East, 21 N.Y. Int’l L. Rev. 1, 41

Patrick Bourke & Dominic Hennessy, Brighter times – developments in arbitration in the United Arab Emirates, IBA Legal Practice Div. Arbitration Committee Newsletter, September 2008, at p. 42 (Int’l Bar Assoc. 2008) (2008)

Statutory Law

Convention on the Recognition and enforcement of Foreign Arbitral Awards, Art. V, June 10, 1958, 21 U.S.T. 2517, I.I.A.S. No. 6997, 330 U.N.T.S. 38, available at http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/XXII_1_e.pdf

The UAE Civil Procedure Code, Federal Law No. (11) of 1992

Website

Abdullay Kh. Al-Ayoub, International Commercial Arbitration in the Middle East, American Bar Association Section on International Law, at p. 6 (Spring Meeting, 2006), available at http://www.abanet.org/intlaw/calendar/spring2006materials.html

Antonios Dimitracopoulos, Arbitration; Light at the end of the tunnel, Construction Week Online, May 3, 2008, available at, http://www.constructionweekonline.com/article-2862-arbitration_light_at_the_end_of_the_tunnel/1

Raid Abu-Manneh, Dubai: A Regional Arbitration Centre?, Mayer Brown International, LLP, August 10, 2009, available at http://www.martindale.com/international-law/article_Mayer-Brown-International-LLP_783158.htm

Sona Nambiar, Common law needed as UAE sees spurt in arbitration, Emirates Business 24/7, September 9, 2009, available at http://www.zawya.com/story.cfm/sidZAWYA20090909041615/Rise%20In%20Arbitration

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[1] Arthur Sullivan and Steven S Sheffrin, Economics: Principles in Action, (Upper Saddle, New Jersey: Pearson Prentice Hall 2003) 324

[2] Arthur J. Gemmell, Commercial Arbitration in the Islamic Middle East, 5 Santa Clara J. Int’l L. 169, 170 (2006)

[3] Mark Wakim, Public Policy Concerns Regarding Enforcement of Foreign International Arbitral Awards in the Middle East, 21 N.Y. Int’l L. Rev. 1, 41 (2008)

[4] Arthur J. Gemmell, Commercial Arbitration in the Islamic Middle East, 5 Santa Clara J. Int’l L. 169, 170 (2006)

[5] Abdullay Kh. Al-Ayoub, International Commercial Arbitration in the Middle East, American Bar Association Section on International Law, at p. 6 (Spring Meeting, 2006), available at http://www.abanet.org/intlaw/calendar/spring2006materials.html

[6] Convention on the Recognition and enforcement of Foreign Arbitral Awards, Art. V, June 10, 1958, 21 U.S.T. 2517, I.I.A.S. No. 6997, 330 U.N.T.S. 38, available at http://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/XXII_1_e.pdf

[7] Ibid

[8] The UAE Civil Procedure Code, Federal Law No. (11) of 1992, Chapter III

[9] Dubai Court of Cassation, 124/2008

[10] Dubai Court of Cassation, 146/2008

[11] Patrick Bourke & Dominic Hennessy, Brighter times – developments in arbitration in the United Arab Emirates, IBA Legal Practice Div. Arbitration Committee Newsletter, September 2008, at p. 42 (Int’l Bar Assoc. 2008)

[12] Jagusch & Kwan, supra note 6

[13] Sona Nambiar, Common law needed as UAE sees spurt in arbitration, Emirates Business 24/7, September 9, 2009, available at http://www.zawya.com/story.cfm/sidZAWYA20090909041615/Rise%20In%20Arbitration

[14] Antonios Dimitracopoulos, Arbitration; Light at the end of the tunnel, Construction Week Online, May 3, 2008, available at, http://www.constructionweekonline.com/article-2862-arbitration_light_at_the_end_of_the_tunnel/1

[15] Raid Abu-Manneh, Dubai: A Regional Arbitration Centre?, Mayer Brown International, LLP, August 10, 2009, available at http://www.martindale.com/international-law/article_Mayer-Brown-International-LLP_783158.htm

0 Political Communication

Political communication is a sub-field of communication, political science. Political communication can influence political decisions, and voting patterns either positively or negatively. Through political communication, politicians pass vital information about their agenda, objectives and strategies of how they will implement them. For effective political communication, the public officials need to identify and understand their audience so that they can use the best approach to reach them. Through political communication, the public gets to know, discuss and pass their needs to the public officers. These needs include health, education, security and social well-being. In this paper, I will discuss the role that political communication has played among residents aged 18-25 years from the city of Philadelphia.

Philadelphia is the capital city of Pennsylvania and it is ranked the sixth largest city in the United States of America. It is located at the southeast of the state at the junction of Delaware and Schuylkill Rivers. The city bears a total area of 369.4 km², which includes both water and land. Philadelphia is a cosmopolitan city with a population of about 1,547,297 people. Out of this, 41.4% are African Americans, 39.5% are whites, 11.7% are Hispanic, 5.6% are from Asia, 1.3% of the population belongs to other races. American Indians make up 0.1% of the population while 0.01% are inborn Hawaiian and other Pacific Islander. In Philadelphia, the mayor of the city is the most powerful political figure and most of the decisions made pass through him (Philadelphia, web).

In the olden days, youths had little or no interest in voting or politics because they believed that voting was for the old people. Democracies did not see the need of involving the younger generation in voting or making political decisions. Unlike those days, the present politicians have greatly incorporated the young generation including the youths in politics and campaigns, and incorporated curriculums that help them learn about politics and political communication.

 The three main means of communication between the public officials and residents between the ages of 18 and 25 are the mass media, civic education and social networks. The mass media has played a vital role in political communication since time immemorial. Through mass media, the public officers have used means like the television and newspapers to carry out their campaigns. The media can either build or destroy the political ambitions of an aspirant. Most people rely on the media while making vital decisions concerned with voting. This makes most aspirants to treat media companies with lots of respect especially on matters involving their agendas and objectives on issues that affect their voters’ well-being. To communicate to the youths, the politicians have used youth friendly slogans with promises such as job creation, good health care, and better education systems. The politicians have also used radio shows and commercials that help them reach to the younger generations by giving them useful information.

Civic education is a significant factor of political socialization. The public officials through their policies have introduced the Student Voice program in the learning curriculum across schools in the city. This program helps the youths learn about their voting rights, the constitution and other things that help them make wise decisions when voting.  Through civic education, the students get an opportunity of self-governance. They also get the chance to participate in projects that are community based which help them interact with the citizens within their communities and other public officers. Such programs help them mature in the policy making process and in turn, help in building and developing the community. These programs help the community change from activities that affect the well-being of the youths such as engaging in criminal activities and drugs. Proceeds from these projects finance the campaigns and some go to charity.

The public officer have in the recent times spent a lot of time in the social media as one of their campaign tools to target the young generation voters, most of them being college students. These social sites include twitter, Facebook, and BlogSpot, and are mainly frequented and used by the youths as a primary mode of communication. Some have used the social media to spread propaganda against their opponents. Some of them have hands-on control when it comes to the management of their sites. A number of politicians have also used short messaging services (SMS) to reach their targeted voters through their campaign managers. When the youths receive these messages, they discuss them among their peers and forward to their older folks. Some politicians have also created online forums to discuss their ambitions, give room for questions, and receive feedback about them.

The public officers have volunteered to encourage communities towards realization of better health, higher income, and an enhanced education system. They formulate different strategies to achieve this goal. For example, through the graduation coach campaign, the Mayor of Philadelphia, Michael Nutter, has committed himself and his administration towards improving the education systems in the city. His goal is to increase the number of graduating students from high school to college by 80% by the year 2015. To achieve this, he has used approaches such as the Philadelphia Council for College and Career Success, Project U-Turn and PhillyGoes2College. The Philadelphia Council for College looks at efforts to meet the education goals in the city. The aim of project U-Turn mandate is to look at the drop out crisis in the city while PhillyGoes2College is an information centre within the mayor’s office whose main aim is to help youths of all ages attain a degree.

The public officers have also come up with programs like the Get Healthy Philly, which is a funded public health initiative whose focus is on healthy eating, tobacco control and active living among many other beneficial things. They have invented this program through collaborating with community-based organizations, government agencies and academic institutions to increase the availability and affordability of nutritious foods, decrease consumption of health-depriving foods and beverages, and increase physical exercise among Philadelphians (Phila.Gov, web)

The officials in the city of Philadelphia have helped them in the creation of youth groups and forums that aim at helping the youths come together. One of these groups is the Philadelphia Youth Commission and the Young Government Leaders. The Philadelphia Youth Commission represents the youth Philadelphia in public hearings and their main aim is to give testimonies that reflect the youth perspectives. This commission works with the city’s public officials, non-profits organizations, community organizations, and private entities to come up with strategies that will improve the lives of Philadelphia’s youth (Pasek, Lauren, Daniel, and Kathleen, web). The Commission serves to assist all the youths in the city regardless of their political, education or ethnic background. Their work also involves advising the Mayor and other decision makers on matters pertaining to the youths. They do this by commenting on laws and policies that impact youths and improving the youths’ lives by coming up with public service programs. Additionally, they evaluate how effective the youth programs and policies are, and make partnership with the community and other youth organizations. These partnerships help deal with common issues affecting the youth and they involve themselves in training the youths to help them prepare for leadership in the future (City of Philadelphia Youth Commission,web)

Voting in Philadelphia has been made easy for the college-going students because it is now possible for them to use their school identity cards that have been made a legal voting card by the government. For them to use the cards, they need to have their full names.

To increase the voter turnout rate among the youths, politicians need to educate them about the reasons why their participation is important in the American Democracy. They can do this by increasing the involvement of college student in public life and activities and connect some actions that will give them a sense of belonging. They can also create forums that will give these students more voice that lead to them giving an input towards the policy making process of the community. Finally, through civic education, the public officials help the college students understand how the public resources are run, thus help them gain interest in politics. Involvement of the youths helps them develop leadership skills that they will apply later on in the future as they engage with the government activities.

            In conclusion, political communication is a very vital tool in the decision making process. This is because it helps individuals acquire enough information to assist them make the sound decisions.

 Works cited

CIRCLE (The Center for Information and Research on Civic Learning and Engagement). 2010. Web 18 April 2012.

"Civil Education." The National Forum on Higher Education for the Public Good. 18 April 2012

"Graduation Coach Campaign." Graduation Coach Campaign. 2010. Web 18 April 2012.

Pasek , Josh , Lauren Feldman , Daniel Romer , and Kathleen, Jamieson. "Building Political Efficacy through Civic Education." Stanford University. Journal of Applied Developmental Science, n.d. Web. 18 Apr. 2012.

"Phila.Gov | Public Health.". City of Philadelphia: Mayor Michael A. Nutter. 2010. Web. 18 April 2012

"City of Philadelphia Youth Commission." 2009. Web. 17 April 2012

National Association for Civic Educators. 2002. Web 18 April 2012

"Philadelphia, Pennsylvania." City-data.com. 2010. Web. 18 April 2012.

0 Enforceability of International and Local Mediation in UAE and Many Other Countries

1.          Introduction

Disputes are inevitable due to the escalating demand of byzantine and fast-track construction projects. Therefore, it is imperative for a person in the managerial or administrative position to possess skills in resolving disputes. Recent years have registered a growing trend of alternative dispute-resolution methods, for instance, mediation, adjudication, conciliation, and various other hybrid arrangements[1]. This can be attributed to the drawbacks associated with arbitration and litigation, namely, the upsurge in costs, deferrals and hostile relationships between parties.

Unfortunately, during the last decade superfluous and increasingly complicated stipulations were incorporated in construction contracts. In general, this involved the addition of numerous alternative dispute resolution methodologies and arbitration divided into redundant tiers[2]. These apparently more economic and swift alternative dispute resolution techniques only rendered the process more ineffective instead of the other way round.  Mediation plays an integral role in determining the conditions of contracts.

The exercise of Alternative Dispute Resolution has gained widespread prominence for working out differences in every sphere of life. During recent years legal systems have increasingly adopted restorative justice practices[3], this implies that Alternative dispute resolution is even employed for dealing with criminal cases. This philosophy has empowered people from all walks of life including laymen by escalating their knowledge of successful negotiation that tends to focus on their benefits rather than their social standing[4]. However, this relatively comprehensible approach occasionally ends up in agreement breakdowns regardless of the fact that parties voluntarily negotiated in a facilitated mediation process where they had every opportunity to advocate their interests.

2.          Dispute Resolution Methods

Dispute resolution method potentially ensues in the following three outcomes, namely, an agreement (negotiation), compromise (conciliation) or judgment (court or arbitration rulings). The mediation outcome falls under agreement and cannot legally bind parties to abide by the mediation outcome unlike arbitration or court proceedings[5]. But to be an ideal solution, the agreement should meet the interests of all participant parties.

3.          Categorization Of Mediation Outcome

Arbitration comprises a ruling given by a neutral, mutually nominated arbitrator. However, mediation outcome can be classified as a contract[6]. By taking into account elements that validate a contract, we can notice that in a mediation outcome, the opposing parties exchange informed offers and acceptances in order to determine an outcome. Moreover, consideration and intention to enter into a legal relationship exists so it can be concluded that it is simply not a concurrence of offers and acceptances. Therefore, mediation outcome meets the criteria of a contract and should not be confused for a judgment which is a legal determination imposed on parties regardless of their consent.

4.          Discharging Mediation Outcome

The creditor should normally expect a voluntary settlement as regards to the obligation as is the case in normal contracts. However, in the case where the debtor continues to defer the obligation, the outcome will vary according to the commencement of the mediation process. Normally, two hypothetical circumstances exist:

4.1       Parties choose Mediation over Litigation

As mentioned before, mediation outcome is simply a contract; hence, the creditor can utilize the same remedies as are available to a contractor. In other words, he can initiate a legal proceeding on the ground of breach of contract and require specific performance, rescission, reformation or compensation in the form of damages etc. but it is imperative to remember that in these instances, a court is obliged to hear out such cases before settling the dispute. Only when it announces its judgment, will the contract be legally enforceable. Therefore, mediation outcome simply serves as a facilitation process rather than a dispute resolution process like arbitration or adjudication. To put it another way, if the aggrieved party repudiates an agreement, the court can only resolve a dispute after the existence and validity of an agreement are proved.Before moving onto the enforceability of remedies from the mediation outcome, the court first needs to consider the worth and position of the mediated dispute. Realistically, mediation outcome is wastage of time for such disputes as it only leads to procrastination and seems irrational.

4.2       Mediation after Initiation of Court Proceedings

This option does not affect the mediation outcome process being classified as a contract. The only difference is that the judgment of a court will ensue in a “consensual judgment”. Alternatively the same applies to a settlement which is better known in Australian law as a ‘consent order’[7]. The proceedings which have already been initiated in a court will then include such court intercession. At times parties may seek the court for re-assessment of the outcome. However, in both situations the outcome will not only be seen as a contract but rather as a court order. In truth, the mediation process is non-existent; the mediation outcome (contract) only served as evidence for the court judgment.

In the aforementioned theoretical situations, the creditor is likely to benefit more under the latter option if he seeks a court remedy due to non-fulfillment of obligations by the debtor as decided by the mediation outcome (contract), is likely to benefit more under the latter option. Under the first option, he will probably encounter prolonged proceedings as the debtor can use acceptable allegations to be excused from specific performance e.g. emergency, frustration and the like[8]. But in the second scenario, the proceeding will assume the form of an enforcement proceeding because either the debtor declines to comply with the court judgment or fails in enforcement of the court order (Australian terminology).

In certain situations, legislation or the outcome of mediation or any other such agreements might necessitate particular solutions when non-cooperation results from the outcome of the mediation. This tends to stand true without regard to any form of classification. For instance, a bigger contract might entail dispute resolution provisions stipulating that disputes should be settled in several stages. One of these stages is mediation and in case it proves futile, then arbitration can be used. Mediation might fail as its outcome usually does not provide a long-term remedy. Additionally, mediation can be exercised by parties beforehand or subsequent to reappearance of a dispute. No law prohibits this course of action.

Debtors have to face repercussions as a result of prolonging proceedings. Contempt of court is the bare minimum punishment unlike general proceedings. Debtors should carefully review repudiating a mediation outcome since this can prove quite costly. A prudent mediator will deliberate and debate about an issue from all angles to eradicate any prospective vitiating reasons and to formulate a long-lasting solution before drawing the agreement. Similarly, a judge cannot be expected to restate a consensual judgment or alternatively a consent order without putting the mediation outcome to test for durability.

5.          Enforceability of Mediation Outcome

A mediation outcome ensues from either of two cases. In the first case a contract is signed into effect by the disputing parties acting outside the domain of the court system. This could also occur when a court issues an order such as in Australia: normally, the court takes control of the alternative dispute resolution. On the other hand, jurisdictions and in particular where civil and sharia law systems[9] have been implemented, the outcome of the mediation or the suluh concurrence passed by the court may be known as a consensual judgment.  In these circumstances, the consensual judgment is deemed as conclusive and significant judgment, against which no appeals could be made to the court of appeals regardless of the fact that parties go to the court on their free will and ask for a mediation outcome to be re-issued. Thereby, the implementation of an outcome of mediation is dependent on the outcome’s nature of formality. To put it another way, the method of outcome will be determined in the light of the kind of the outcome’s final mediation which could be a consent order, consensual judgment or an agreement. From the above, it can be deduced that the enforceability of a mediation outcomes rests on a court order; otherwise it cannot be legally enforced on its own.

Another critical issue is whether a mediation outcome is synonymous to a dispute resolution outcome. The answer is negative; two points should be borne in mind. Firstly, the legal system must adopt the mediation outcome as an “enforceable outcome per se”. In other words, the national legislation should give statutory recognition to the enforceability of a mediation outcome or ratify a distinct new legislation governing mediation in every aspect. Such legislative practices are being undertaken in some jurisdictions. For instance, since 1984 the government of Australia recognizes mediation as a community service[10]^. The Court (Mediation and Arbitration) Act (Cth) was enforced with regard to Commonwealth Legislation in 1991. In addition, during the Workplace Relations Act (Cth) sanctioned a recommendation to mediation in respect of industrial disputes for the first time in history. Several national and international organizations now exist to smooth the progress of mediation in all types of disputes.  Consequently, various bodies developed a code of practice. An example would be the New South Wales Law Society which has established a guideline to facilitate practicing mediators. In Australia this legislative development has resulted in the issuance of a National Accreditation Standard for Mediators[11] as a result people are proscribed from acting as mediators unless they hold a valid national accreditation.  Australia is one country that has taken pragmatic steps for overcoming flaws in the mediation practices as a part of the alternative dispute resolution process. Nonetheless, the legislative still needs to take implement one last conclusive measure for making the process flawless. They legislature should grant legal enforceability to a mediation outcome signed by an accredited mediator, similar to the status of a judgment made by courts in Australia.

 If this step is taken, it will not render the process exceptional but only assign it as much weight as an arbitration award. The similarities between the two should be taken into account. Firstly, both arbitration and mediation outcome are branches of dispute resolution processes; secondly, both involve parties voluntarily seeking an alternative remedy to resolve disputes without the burden of litigation. However, arbitration award carries legal weight and a determinative decision enforced on parties. As opposed to this, an outcome of mediation is considered as the consensual remedy requested by the involved parties to settle a dispute; therefore, it sounds more rational and coherent with the overall legal system to award legal enforceability to the later so that parties abide by the solution. In plain terms, it seems logical and categorically acceptable to coerce parties into accepting a mediation outcome. Furthermore, it is noteworthy that in today’s globalized world, the bulk of commercial disputes comprise transnational disputes, hence international assistance is required for effectively resolving them.  Thereby, the first step should be legal enforceability of mediation outcomes on a national level, and then countries should work together for recognition and enforceability of mediation outcome at the international level. United Nations can play an instrumental role in this regard. The United Nation Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (also known as the New York Convention 1958) was adopted for the international enforceability of arbitration awards[12].

National and global acknowledgement of outcomes of mediation in line with arbitration awards concerning the nature and legal enforceability needs to be established. Only then would mediation become a genuine and functional dispute resolution technique.

6.          Court

In spite of the increasing accentuation on the use of informal methods to resolve conflicts, the legal settings is still “aimless, meandering, and … confusing”.  The courts have failed to lay down plain, comprehensible and well-reasoned approaches regarding dispute resolution. This is reflected by the fact that traditional arbitration law which comprises of judicial decisions which are relevant to federal or state stipulations are being applied to alternative dispute resolution that is dissimilar to conventional arbitration. The interface between conventional arbitration and prior stages in dispute resolution depict the fault of the courts to clearly specify well-reasoned and lucid methodology for the new generation.

Arbitration law encompasses a wide variety of particular legal repercussions that have a bearing on several different facets of the dispute resolution process. The application of these standards to mediation as well as nonbinding adjudication carries little significance and appears irrational. The courts become ineffective during judgement and enforceability, as they are required to conduct an analysis for every single case to determine the federal or state arbitration law it relates to. Due to the increased complexity and judicial intervention, courts find it difficult to formulate a new body of law for dispute resolution cases. It is integral to consider whether litigation should be ceased and a nonbinding process compelled. Moreover, should immunity be extended to a third party decision maker or adjudicator?

A handful of international courts have incorporated the law of contract concerning legal and equitable solutions in relevance to alternative dispute resolution. However, others have not adopted this for myriad reasons; namely, mistrust, lack of awareness of alternative dispute resolution, and comprehensible shortcomings concerning equitable relief. Courts require a guideline for the legal implementation of dispute resolution processes and for avoiding interface between conventional arbitration and dispute resolution agreements. Statutory measures could be employed but this will ensue in dangers and obstacles, if immediately applied on a large scale. Therefore, courts should consider “the development of a restatement of dispute resolution.” If nothing else, at least this multi-disciplinary and well thought out debate would shed some light on the problems[13].

The adoption of mediation has been rather slow. A study of the mediation pilot in United Kingdom revealed that only five percent of the parties involved in cases agreed to mediate. This attitude can be attributed to numerous factors. For instance, normally the opposing party construes mediation as a sign of weakness, lawyers also lack experience in this relatively new legal concept, and parties often disdainfully view the notion of compromise. Moreover, lack of public awareness also plays a role in the slow take up of alternative dispute resolution.

7.          The Situation in UAE

In the case of UAE, judicial mediation is a preferred option and is taken to action through the Conciliation and Settlement Committee that operates in federal courts. This body was established under the Federal Law No. (26) as well as the Procedures of the Conciliation and Settlement Committee (Ministerial Resolution 133 of 2001). The purpose of this body and the overall mechanism is to promote mediation over conflicts that might end up in litigation. According to Article 101 of the Civil Procedure Law both parties can choose to stop action by asking the judge and this effort can be turned over to mediation. However, it is up to the judge to decide if mediation or arbitration should be allowed or not. The efforts for mediation could be done either before or after the dispute. Moreover, mediation could be part of the contractual obligations although it does not always have to be as such. Other than the Conciliation and Settlement Committee no other mechanisms are available in UAE codes to settle disputes through mediation and this effectively limits the efficacy of such a body.

In case that an arbitration clause is present in a contract, the particular dispute cannot be taken to a court of law in UAE. This happens as the arbitration clause removes the case from the jurisdiction of the court of law. However, in the case of mediation clauses the bereaved party can take the case to a court of law. The court may choose to forego its jurisdiction in order to initiate mediation. In case that mediation fails, the court still retains its jurisdiction to solve the problem.

Mediation however is limited in that either party does not have to act in good faith during mediation. This means that either party cannot sue the other party for lack of good faith during mediation as made apparent by the Avril v Civilmar[14] case. If mediation is carried out under the LCIA rules then Article 10 provides for confidentiality.

8.          Conclusion

Mediation is an ingenious and peaceful notion to settle disputes between hostile parties by bearing in mind their interests, cost limitations and time restraints. Productive mediation can only ensue from the genuine and mutual endeavours of various parties such as lawyers, psychologists and other smart individuals or organizations[15].

As discussed above, mediation is a productive tool to draw an existing dispute to close by assisting rival groups to conclude an acceptable agreement. However, the durability of such an acceptable agreement is full of doubt as the existing national and international legal systems do not provide any tools to coerce the repudiator to impose the outcome. Moreover, manipulation of the process can occur at the hands of a malicious party[16].

Unfortunately, up to this point in time a mediation outcome cannot be legally enforced until it is re-issued by a court; thus, so far it does not amount to a dispute resolution outcome. In fact, it should be viewed as a court judgement instead of a mediation outcome, after the re-issuance of an outcome by a court. The outcome as a part of an agreement would not directly conclude a dispute and in itself, it carries no legal worth. Hence, the legal analysis of classifying an outcome of mediation as a reliable method for dispute resolution proves flawed and incorrect. It is merely a facilitative technique in an attempt to avoid litigation. Similarly, the mediator is not technically a dispute practitioner but rather acts as a helper in contracts.

9.          Recommendations

Attention needs to be paid to reform the process to render mediation outcome as an acceptable and effective dispute resolution choice. Two sum it all up, two proposals should be considered. Firstly, a Mediation Legislation should be endorsed which would represent all the amendments and developments in relevance with mediation outcome to the present time. In addition, this Act should decree that mediation outcome would hold the same statutory significance as an arbitration award in terms of the nature and enforceability of outcome[17]^.

          Secondly, in consideration of transnational disputes, countries should collectively strive in international forums for the endorsement of a treaty that would offer international acknowledgment and enforceability of mediation outcomes[18]. United Nations has already ratified the United Nation Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the ‘New York Convention 1958’, and can prove effective as an international platform for formulating an agreement pertaining to mediation outcomes.

Moreover, 192 countries hold membership in the United Nations out of 243 countries, which would ensure that the international adoption of an Act would extend to the maximum countries possible.

10.      Bibliography

Books

David Spencer, Essential Dispute Resolution (2^nd edn, Cavendish Australia 2005)

David Spencer and Michael C Brogan, Mediation Law and Practice (Cambridge University Press 2006)

Norwood, Establishment of the Community Mediation Services (1^st edn, South Australia Press 2010)

Richard Garnett et al, A Practical Guide to International Commercial Arbitration (Oceania Publications Inc 2000)

Roger Fisher and William Ury and Bruce Patton, Getting to Yes (Negotiating an agreement without giving in) (2^nd edn, Random House 1991)

Sai-On Cheung and Henry C H Suen and Tsun-Ip Lam, Fundamentals of Dispute Resolution Processes in Construction (1^st edn, Routledge 2001)

Thomas Stipanowich, The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution (1^st edn, Maxwell 2007)

Journal Articles

eLaw Journal: Murdoch University Electronic Journal of Law (2010) 17(2)

John Braithwaite ‘Restorative Justice and De-Professionalization’ [2004] The Good Society 13 (1): 28-31

Miryana Nesic (2001) ‘Mediation - On the Rise in the United Kingdom?’ Bond Law Review 13(2) Article 10

WALRC, Review of the Criminal and Civil System in Western Australia Final Report Project No 92 (1999)

Case Law

Avril v Civilmar 605 So. 2d 988 (Fla 4^th DCA 1992)

National Australia Bank v Freeman [2000] QSC, 295

Scanlan’s New Neon Ltd  v Tooheys Ltd (1943) 67 CLR 169, Frustrated Contracts Act 1978

(NSW); Frustrated Contracts Act 1988 (SA)

Statutory Law

Administrative Appeals Tribunal Act 1975 (Cth) S 34d(2)

Website

Lloyd Duhaime, ‘Sharia Law Duhaime’ <http://www.duhaime.org/LegalDictionary/S/ShariaLaw.aspx> accessed 4^th May 2012

NADRAC, ‘Home’ <www.nadrac.gov.au> accessed 2^nd May 2012

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[1] Sai-On Cheung and Henry C H Suen and Tsun-Ip Lam, Fundamentals of Dispute Resolution Processes in Construction (1^st edn, Routledge 2001) 128

[2] David Spencer and Michael C Brogan, Mediation Law and Practice (Cambridge University Press 2006)

[3] John Braithwaite ‘Restorative Justice and De-Professionalization’ [2004] The Good Society 13 (1): 28-31

[4] Roger Fisher and William Ury and Bruce Patton, Getting to Yes (Negotiating an agreement without giving in) (2^nd edn, Random House 1991) 4-8

[5] David Spencer, Essential Dispute Resolution (2^nd edn, Cavendish Australia 2005) 45-83

[6] David Spencer and  Michael Brogan, Mediation Law and Practice (Cambridge University Press 2006) 348

[7] Administrative Appeals Tribunal Act 1975 (Cth) s 34D(2)

[8] Scanlan’s New Neon Ltd  v Tooheys Ltd (1943) 67 CLR 169, Frustrated Contracts Act 1978

(NSW); Frustrated Contracts Act 1988 (SA)

[9] Lloyd Duhaime, ‘Sharia Law Duhaime’ <http://www.duhaime.org/LegalDictionary/S/ShariaLaw.aspx> accessed 4^th May 2012

[10] Norwood, Establishment of the Community Mediation Services (1^st edn, South Australia Press 2010)

[11] NADRAC, ‘Home’ <www.nadrac.gov.au> accessed 2^nd May 2012

[12] Richard Garnett et al, A Practical Guide to International Commercial Arbitration (Oceania Publications Inc 2000) 125

[13] Thomas Stipanowich, The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution (1^st edn, Maxwell 2007) 8

[14] Avril v Civilmar 605 So. 2d 988 (Fla 4^th DCA 1992)

[15] Miryana Nesic (2001) ‘Mediation - On the Rise in the United Kingdom?’ Bond Law Review 13(2) Article 10

[16] National Australia Bank v Freeman [2000] QSC, 295

[17] WALRC, Review of the Criminal and Civil System in Western Australia Final Report Project No 92 (1999)

[18] eLaw Journal: Murdoch University Electronic Journal of Law (2010) 17(2)