 |
In law, a special referee acts as a judge on matters of fact only.
| |
In law, a special referee acts as a judge on matters of fact only.
In many instances, the interpretation of the specific statutes or case law relevant to a dispute is absolutely clear. The uncertainty between the parties lies in the facts. Hence, a special referee is an expert in the factual topic, whether it be shipping, civil engineering, accounting, etc. The special referee hears evidence and makes factual findings which bind the parties. This will usually be sufficient for the parties to resolve the dispute since the law can now be applied. If the parties still cannot agree, they may initiate proceedings for arbitration or litigation but, on an inter partes basis, the facts are conclusively determined by the judgment of the special referee and only questions of law may be argued before the new forum. Thus, the use of a special referee provides a relatively swift and cost-effective mechanism for dispute resolution if only because the procedure is less formal than in a court and the referee's existing expertise reduces the need to continually explain complex technical and factual matters to a judge who has only legal expertise.
The parties may anticipate the possibility of a dispute and nominate a special referee as the most appropriate form of dispute resolution (see forum selection clause). Such clauses cannot limit or deny the right of either party to refer the matter to a court (whether in the state nominated or, if the contract does not specify a state, in any court prepared to accept jurisdiction subject to the rules on forum shopping).
If there is no anticipatory provision in the contract, the parties may, of their own initiative, seek out a person qualified to act as a special referee and submit the factual case to him or her for resolution. Although costs will be involved in legal representation, fees to witnesses, and in the fee to the special referee, the expenditure will be a fraction of the costs of full-scale litigation.
If there is no agreement between the parties, the civil procedure of many states allows the court to refer the matter to a special referee when this will both provide expertise on the facts, and enable the legal case to be disposed of in a more timely fashion. For example, in Canada, the Arbitration Act provides:
As with most legal terminology, there is some variation by jurisdiction in the precise nomenclature used: in some jurisdictions a special referee is known as a "master", "special master" or "auditor".
Arbitration, in the context of the law of the United States, is a form of alternative dispute resolution. Specifically, arbitration is an alternative to litigation through which the parties to a dispute agree to submit their respective evidence and legal arguments to a third party for resolution. In practice, arbitration is generally used as a substitute for litigation. In some contexts, an arbitrator has been described as an umpire. Arbitration is broadly authorized by the Federal Arbitration Act. State regulation of arbitration is significantly limited by federal legislation and judicial decisions applying that law.
Dispute resolution or dispute settlement is the process of resolving disputes between parties. The term dispute resolution is conflict resolution through legal means.
The International Court of Justice, or colloquially the World Court, is the only international court that adjudicates general disputes between nations, and gives advisory opinions on international legal issues. It is one of the six organs of the United Nations (UN), and is located in The Hague, Netherlands.
Mediation is a negotiation facilitated by a third-party neutral. It is a structured, interactive process where an impartial third party, the mediator, assists disputing parties in resolving conflict through the use of specialized communication and negotiation techniques. All participants in mediation are encouraged to actively participate in the process. Mediation is a "party-centered" process in that it is focused primarily upon the needs, rights, and interests of the parties. The mediator uses a wide variety of techniques to guide the process in a constructive direction and to help the parties find their optimal solution. A mediator is facilitative in that they manage the interaction between parties and facilitates open communication. Mediation is also evaluative in that the mediator analyzes issues and relevant norms ("reality-testing"), while refraining from providing prescriptive advice to the parties.
A lawsuit is a proceeding by one or more parties against one or more parties in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used with respect to a civil action brought by a plaintiff who requests a legal remedy or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint or else risk default judgment. If the plaintiff is successful, judgment is entered in favor of the plaintiff, and the Court may impose the legal and/or equitable remedies available against the defendant (respondent). A variety of court orders may be issued in connection with or as part of the judgment to enforce a right, award damages or restitution, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.
In law, a summary judgment, also referred to as judgment as a matter of law or summary disposition, is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgments may be issued on the merits of an entire case, or on discrete issues in that case. The formulation of the summary judgment standard is stated in somewhat different ways by courts in different jurisdictions. In the United States, the presiding judge generally must find there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In England and Wales, the court rules for a party without a full trial when "the claim, defence or issue has no real prospect of success and there is no other compelling reason why the case or issue should be disposed of at a trial."
Res judicata or res iudicata, also known as claim preclusion, is the Latin term for judged matter, and refers to either of two concepts in common law civil procedure: a case in which there has been a final judgment and that is no longer subject to appeal; and the legal doctrine meant to bar relitigation of a claim between the same parties.
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. They are the companion to the Federal Rules of Criminal Procedure. Rules promulgated by the United States Supreme Court pursuant to the Rules Enabling Act become part of the FRCP unless, within seven months, the United States Congress acts to veto them. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.
In contract law, a forum selection clause in a contract with a conflict of laws element allows the parties to agree that any disputes relating to that contract will be resolved in a specific forum. They usually operate in conjunction with a choice of law clause which determines the proper law of the relevant contract.
The International Court of Justice has jurisdiction in two types of cases: contentious cases between states in which the court produces binding rulings between states that agree, or have previously agreed, to submit to the ruling of the court; and advisory opinions, which provide reasoned, but non-binding, rulings on properly submitted questions of international law, usually at the request of the United Nations General Assembly. Advisory opinions do not have to concern particular controversies between states, though they often do.
In contract law, an arbitration clause is a clause in a contract that requires the parties to resolve their disputes through an arbitration process. Although such a clause may or may not specify that arbitration occur within a specific jurisdiction, it always binds the parties to a type of resolution outside the courts, and is therefore considered a kind of forum selection clause.
International arbitration is arbitration between companies or individuals in different states, usually by including a provision for future disputes in a contract.
The principle of lis alibi pendens applies in municipal law, public international law, and private international law to address the problem of potentially contradictory judgments. If two courts were to hear the same dispute, it is possible they would reach inconsistent decisions. To avoid the problem, there are two rules.
Arbitration is a formal method of dispute resolution involving a third party neutral who makes a binding decision. The third party neutral renders the decision in the form of an 'arbitration award'. An arbitration award is legally binding on both sides and enforceable in local courts, unless all parties stipulate that the arbitration process and decision are non-binding.
An arbitral tribunal or arbitration tribunal, also arbitration commission, arbitration committee or arbitration council is a panel of unbiased adjudicators which is convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there may be two or more arbitrators, which might include a chairperson or an umpire. The tribunal usually consists of an odd number of arbitrators. Members selected to serve on an arbitration panel are typically professionals with expertise in both law and in friendly dispute resolution (mediation). Some scholars have suggested that the ideal composition of an arbitration commission should include at least also one professional in the field of the disputed situation, in cases that involve questions of asset or damages valuation for instance an economist.
Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that parties can use to settle disputes with the help of a third party. They are used for disagreeing parties who cannot come to an agreement short of litigation. However, ADR is also increasingly being adopted as a tool to help settle disputes within the court system.
Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1 (1983), commonly cited as Moses Cone or Cone Hospital, is a United States Supreme Court decision concerning civil procedure, specifically the abstention doctrine, as it applies to enforcing an arbitration clause in a diversity case. By a 6–3 margin, the justices resolved a complicated construction dispute by ruling that a North Carolina hospital had to arbitrate a claim against the Alabama-based company it had hired to build a new wing, even though it meant that it could not consolidate it with ongoing litigation it had brought in state court against the contractor and architect.
United States Arbitration Association (USADR) is an alternative dispute resolution organization headquartered in Denver, Colorado. USADR offers mediation to parties who have filed for arbitration through USADR's national forum.
Disputes between consumers and businesses that are arbitrated are resolved by an independent neutral arbitrator rather than in court. Although parties can agree to arbitrate a particular dispute after it arises or may agree that the award is non-binding, most consumer arbitrations occur pursuant to a pre-dispute arbitration clause where the arbitrator's award is binding.
The King's Bench Division of the High Court of Justice deals with a wide range of common law cases and has supervisory responsibility over certain lower courts.