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Pre-Action Protocols and Pre-Action Dispute Resolution Processes: Horizons Near and Far
Get PDFThis article explores the role of ‘alternative’ dispute resolution in the context of the publication of Part 1 of the Civil Justice Council (CJC) Review of Pre-Action Protocols, to which the author contributed. The relationship between the CJC Report and the Master of the Rolls’ vision for the future of digital justice are considered as are the most salient details of the Report’s proposals, not least mandating dispute resolution engagement, digitalizing portals to manage pre-action steps and gather rich data, and a process for raising alleged failures to comply. The article concludes with consideration of further improvements which the use of technology and rich data may bring, on the near, medium and far horizons.
Keywords: alternative dispute resolution; ADR; mediation; early neutral evaluation; ENE; negotiation; pre-action protocol; settlement; artificial intelligence; AI; funnel; digital pathfinder; deep learning; reinforcement; sanctions; non-compliance; rich data
The Increasing Need for Cultural Experts in New Zealand Courts
Get PDFNew Zealand’s unique demography, with a large indigenous Māori population and a national population which is also increasingly superdiverse, means that New Zealand courts need more assistance from cultural experts if “the common law [is to] serve all in society”, as our Chief Justice recently said in the Supreme Court (Peter Hugh McGregor Ellis v R (Ellis) 2022: para 174). This paper examines two recent Supreme Court decisions: Ellis and Deng v Zheng (2022), which explain the increasing need for cultural experts in New Zealand courts to determine what tikanga (Māori customs and practices) as the first law of New Zealand is and how it applies, as well as to ensure equal access to justice despite cultural and linguistic diversity. The greatest need for cultural experts arises from the majority of the Supreme Court’s acceptance that tikanga was the first law of Aotearoa/New Zealand. There has been ad hoc (albeit growing) incorporation of tikanga and Te Tiriti o Waitangi (Te Tiriti) in various statutes, and no entrenchment in a supreme constitution, but even without statutory incorporation, the courts have interpreted statutes to take account of tikanga values and interests and to be consistent with Te Tiriti to the extent possible. Lawyers and judges need to acquire a base level of tikanga knowledge and cultural competency to be able to identify when a deeper level of tikanga/cultural expertise is needed, and cultural experts need to be called on to provide evidence to assist the Court.
This is important (not only to ensure that justice is done in particular cases) but to maintain broader constitutional legitimacy. This includes acknowledging significant cultural differences in the application and development of the common law, in relevant cases. Pluralism is an important value which may be relevant to filling the gaps in the common law created by new situations that indigenous and superdiverse cultures and languages give rise to (Chen, forthcoming 2024; see also Palmer & Ling 2023).
Keywords: tikanga; New Zealand; cultural experts; evidence; statutory interpretation; development of the common law
Summary Dismissal in Arbitration: A Need for Reform to the Arbitration Act 1996?
Get PDFThis article considers the United Kingdom Law Commission’s recent proposal to amend the Arbitration Act 1996 so as to expressly empower arbitral tribunals to make orders for summary dismissal of meritless claims/defences (among several other reforms to the Act). Noting the summary dismissal procedures available in the English courts and the provisions for summary dismissal now included in the procedural rules of the major arbitral institutions, this article concludes that such an amendment to the 1996 Act would be a very welcome development, promoting efficiency in London-seated arbitration and thereby further securing London’s position as one of the most popular seats of arbitration.
Keywords: summary dismissal; summary judgment; Arbitration Act 1996
The Slow Train to Reforming Anti-Dumping Measures
Get PDFThis essay examines the need for and slow progress towards a revision of the Anti-Dumping Agreement. There are ongoing negotiations on the Anti-Dumping Agreement, but they are without positive outcomes. Several reasons account for this failure such as the deadlock in the Doha Development Round, mega trade agreements and the unwillingness of top anti-dumping users to engage in meaningful reform. In this paper, alternative solutions are proposed to settle the hidden trade protectionism in anti-dumping investigations. Normative solutions include a comprehensive reform of the Anti-Dumping Agreement. Such a revision has already been suggested in the literature, but this study departs from most others by prioritizing procedural issues rather than substantive ones. The study proposes changes to enhancing procedural justice in anti-dumping processes.
Keywords: World Trade Organization; Anti-Dumping Agreement; Negotiating Group on Rules
The Slow Train to Reforming Anti-Dumping Measures: Concrete Solutions for the Future
Get PDFNormative solutions to reform the Anti-Dumping Agreement include a comprehensive amendment of the Agreement. Such a revision has already been suggested in the literature, but this study departs from most others by prioritizing procedural issues rather than substantive ones. The study proposes changes to enhancing procedural justice in anti-dumping processes. Due to the constraints on the substantive reform of the Anti-Dumping Agreement in a short timescale, other possibilities are also discussed in order to improve procedural justice, including: (i) publishing best practice guidelines; (ii) creating a standard questionnaire to be used by all World Trade Organization (WTO) members; (iii) reforming and fixing the WTO dispute settlement mechanism; (iv) raising awareness among exporters that cooperation with investigating authorities may have a significant effect on the anti-dumping measures imposed; (v) improving the accounting systems for Chinese exporters; (vi) introducing a support tool for exporters or exporting countries, such as the Advisory Centre on WTO Law in Geneva; and (vii) providing software to assist exporters to fill in questionnaires.
Keywords: World Trade Organization; Anti-Dumping Agreement; Negotiating Group on Rules; procedural justice
