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• Lex-Mercatoria-Prinzipien: Ein Schlüsselkonzept in der internationalen Handelsschiedsgerichtsbarkeit

  5-27

  Rachid Al Bitar

  Views:

  78

  Die internationale Handelsschiedsgerichtsbarkeit ist ein Streitbeilegungsmechanismus; Dadurch wird den Streitparteien die Möglichkeit gegeben, ihre Angelegenheit außerhalb der nationalen Gerichte zu regeln. Andererseits kann die Lex Mercatoria als ein Regelwerk definiert werden, das die Gebräuche und Bräuche der Kaufleute im Mittelalter umfasst, daher die englische Bezeichnung „Merchant Law“. Nach der Globalisierung, genauer gesagt im 20. Jahrhundert, wurden beide oben genannten Konzepte entwickelt und von den meisten Rechtssystemen auf der ganzen Welt übernommen. Dieses Papier zielt darauf ab, die Lex Mercatoria zu definieren, indem es ihre Geschichte und Entwicklung untersucht und alle ihre Elemente in Angriff nimmt, um die Auswirkungen der Grundsätze der Lex Mercatoria auf internationale Handelsschiedsverfahren zu untersuchen.

• Possibilities of workplace mediation in the European Union

  1-13.

  Views:

  377

  The world of labor market and industrial relations is a field where conflicts and disputes are inevitable characteristics of the operation, regardless of the form of employment. Also, labor disputes appear both from an individual aspect, where the disputants are the employer and the employee, and in a collective respect, where the disputes take place between the employer(s) and the collective of the workers, typically represented by an employee organization (union) or a works council. 

  When a conflict or a dispute cannot be resolved through negotiation, the law offers dispute resolution mechanisms for the participants. Therefore, several legal mechanisms have been evolved in order to resolve disputes, starting from the classical form of litigation, where a court determines the end of the dispute by its judgement, and other alternative forms of dispute resolution, such as arbitration, mediation and conciliation, where the parties can reach a decision or a settlement outside of the judicial system of the state.

  EU Member States have introduced various legislative rules for labor dispute resolution covering all manner of individual and collective disputes. ADR schemes are also supported by the ILO, as the ILO Recommendation No. 92 (1951) suggests that voluntary conciliation should be made available to assist in the prevention and settlement of industrial disputes between employers and workers. Within the aegis of the European Union, several instruments have emerged with the attempt to elaborate the basic principles for the operation of ADR schemes in the context of cases between businesses and consumers. The Directive 2013/11/EU on alternative dispute resolution for consumer disputes (the “ADR Directive”) and Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes (the “ODR Regulation”) ensured that consumers could turn to quality alternative dispute resolution entities for all kinds of contractual disputes with traders, and established an EU-wide online platform for consumer disputes that arise from online transactions with traders.

  Workplace mediation is widely and successfully utilized in the USA for solely employment purposes both in the private and the public sector. Also, in the United States is a “employment at will” doctrine prevails, that basically means – unless stipulated to the contrary by the parties – the employment relationship can be terminated with immediate effect without any justification (just cause), thus workers do not have access to legal remedies as in the EU where the statutory laws provide a broad protection against arbitrary or unjust termination. Mediation, however, provide an effective solution for employees and workers, even if situated outside the protective scope of labor law.

  While the role of customer/consumer ADR and mediation is increasing throughout the whole European Union, workplace and employment mediation still constitutes a “grey zone”.  In many of the legal instruments of the EU and also in several products of the national legislations, consumers and workers are treated with the same legal awareness, thus protective laws compensate their weaker position in their legal relationships, but as far as the utilization and access of dispute resolution schemes are concerned, a significant but not always reasonable differentiation can be detected. Also, while mediation is an available tool for individual employment matters, still has not been utilized considerably, and remained an instrument only to resolve mostly collective conflicts. Therefore, the aim of this paper to present various styles of mediations from a comparative perspective, to express their biggest advantages and to highlight the areas where mediation could be more suitable to use in the context of the individual disputes of the workplace.

• A munkaügyi alternatív vitafeloldó módszerek a bírósághoz fordulás alapjogának fényében

  Views:

  77

   

  Thanking to the fact that numerous European countries have become more democratized, and to the practical experience based on common law legal system, from the middle of the XXth century some of the continental legal systems have begun to apply alternative procedures for solving disputes between parties, such as facilitation, arbitration or mediation. We can stress two important common features of these solutions. Firstly, if parties apply these ways, they can avoid the traditional judicial way (or, if the result of the chosen method is not satisfactory, these ways can be considered as the preliminary step before the judicial way). Secondly, these procedures have appeared firstly in labour law.

  As we emphasized, applying these solutions parties try to avoid the judicial way, for this reason in this study we try to introduce the relationship between these methods and the basic right to turn a (traditional) court. Expert’s opinions in connection with these processes are very different, we introduce only the two farthest standpoint: on the one hand these ways can speed up the procedure between parties, and can increase the efficiency of it, and parties can agree with each other by amicable way. On the other hand, applying these ways some of the basic rights (for example the principle of independence of courts and the right of fair trial or the principle of contradictory) will be decreased.

  In this study we try to examine the problem determined in the title, on the basis of the rules of the Convention for the Protection of Human Rights and Fundamental Freedoms, and the Constitution of Hungary. But, we have to examine not only the right of fair trial and turning to a (traditional) court, but the monopoly of courts in connection with solving legal disputes (as constitutional principle) in details. We utilize the orders of the Hungarian Constitutional Court as well as the theological and practical experience of these procedures. We have to emphasize that from the different alternative dispute-solving mechanisms we examine not all of the models, but only the model of New York, because only the procedures follow these model are relevant for us in this study.