Alternative Dispute Resolution: A Method for Resolving Disputes in a Globalised World or Globalising the World through Resolving Disputes?
Patricia Shaughnessy
Traditionally, resolving disputes has been an activity controlled and carried out by a State exercising its authority over its citizens and subjecting them to its laws. Each state developed its form and forum for resolving disputes through a state-employed judge imposing its rules of civil procedure on the litigants. While there existed recognizable “families” of civil procedures which bore similarities to each other, the process was distinctly a national regulated exercise with little room to adjust the procedure to the nature of the dispute and the needs of the disputants. However, as modern society has allowed for rapid exchange of information, services, products and travel, parties increasingly act autonomously and without regard to national borders. When disputes inevitably arise, the traditional forms for dispute resolution are often ill-suited for the needs of modern business. Alternative forms of dispute resolution have developed and provide the needed flexibility and adaptability to suit widely varying business transactions. Interestingly, while these forms and forums for resolving disputes respond to the needs of a globalised business world with developing technology, they also are driving internationalisation, encouraging technological development, and stimulating business. The response to the break-downs in business has actually become one of the engines of business. This phenomenon can be seen at many levels, from the activities of small and medium businesses to large-scale private investments in partnerships with States. How will this development survive the current economic crisis and what is the future role for the State in a dispute resolution process that has become both internationalised and focused on party-autonomy?
