The Various forms of Alternative Dispute Resolution (ADR) in International Commercial Disputes

Author:Angelica Rosu
Position:Danubius University of Galati, Faculty of Law
Pages:437-442
SUMMARY

Alternative dispute resolution, usually referred to by the acronym ADR, is the focus of growing interest in the business world, and particularly the international business world. Contract drafters are continuously inventing new ADR procedures, most of which are derived from, or inspired by mediation, although in fact this is only one type of alternative dispute resolution. There is no doubt that... (see full summary)

 
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The Various forms of Alternative Dispute Resolution
(ADR) in International Commercial Disputes
Angelica Roşu
Danubius University of Galaţi, Faculty of Law, avocatrosu@yahoo.com.
Abstract: Alternative dispute resolution, usually referred to by the acronym ADR, is the focus of
growing interest in the business world, and particularly the international business world. Contract
drafters are continuously inventing new ADR procedures, most of which are derived from, or inspired
by mediation, although in fact this is only one type of alternative dispute resolution. There is no doubt
that ADR has emerged out of practice. At present, there i s a very broad range of alternative means of
dispute resolution used in equally broad array of circumstances. An exhaustive list of di fferent types
of ADR cannot be drawn because ADR lends itself to numerous derivatives consisting of
combinations of common types. Of all the ADR types, mediation is the most traditional and the most
central, around which all the other derivatives gravitate.
Keywords: Alternative, dispute, form, international, settlement.
1. Introduction
The term Alternative Dispute Resolution (ADR) has two meanings: loosely, the acronym ADR includes
further then so-called “amicable” methods of resolving disputes – the negotiation, the conciliation, the
mediation, whatever their nature judicial or extrajudicial, namely those methods which offer the parties
the possibility to participate in the research of an accepted solution of their dispute – other methods which,
that even if they have not an amicable nature, they are alternative1 means of dispute resolution.
ADR is commonly interpreted as meaning all alternative methods of resolving disputes. In other words, it
is contrasted with the traditional method available to any individual wishing to assert his or her rights, i.e.
the statutory procedures leading to a judgment rendered by a State court. From this perspective, it could
be-and indeed has been-said2 that arbitration belongs amongst the alternative methods of resolving
disputes, for arbitration can only be used if the parties have made a special agreement (arbitration clause
or submission agreement) providing for the resolution of disputes by one or more individuals (arbitrators)
chosen for their particular skills. In this case, the procedure has a contractual rather than a statutory basis3.
1
The adjective “alternative” is used with increasing frequency in the specific sense of “not conventional” or “not traditional”.
2
Ch. Jarrosson, Les modes alternatifs d e reglement des conflits. Presentation generale. RIDIC, 1997, p. 328. From this
perspective, in accordance with the Romanian procedural civil law, the analyzed cate gory includes, the judges’ obligation to try to
conciliate the parties in front of the first court, o bligation stated in Art. 131 (1) o f the Code of Civil Procedure an d the obligation
provided in Art. 720 ¹ of the same law. This article states that in commercial matters, the complainant will try to settle it s conflict
by direct conciliation with the other party. This is a preliminary mandatory procedure as stated in art. 109 of the Code of Civil
Procedure. For more details regarding the mandatory procedure of conciliation, see: I. Leş, Tratat de drept procesual civil, Editura
All Beck, Bucureşti, 2001, p.803; I.Deleanu, Tratat de procedură civilă, All Beck, Bucureşti, 2005, p. 275; M.Tăbârcă, Drept
procesual civil. Volumul II, Global Lex, Bucureşti, 2004, p. 267-269.
3
For details, see Pierre Tercier, Foreword, in Jean Claude Goldsmith, Gerald H.Pointon, Arnold Ingen Housz, ADR in Business.
Practice and Issues across Countries and Cultures, Kluwer Law International, The Netherlands, 2006.
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