HMRC and its use of ADR Tuesday, Jan 31 2012 


Today the 31st January, is the deadline for online filing and payment to Her Majesty Revenue and Customs (HMRC), for self-employed people. The good news for some, is the delay in the filing deadline, as seen in  http://www.guardian.co.uk/politics/2012/jan/31/hmrc-delays-tax-return-deadline-strike.  All because of the strike on privatisation fears which means filing up until 2nd February may be permissible.

In a recent HMRC Local Compliance SME, the use of alternative dispute resolution (ADR) for tax disputes in a pilot scheme has been incorporated in the HMRC regime.  ADR has been seen to be effective and efficient in its usage, especially for small and medium enterprises.

It has been observed by the HMRC that virtually all disputes that were selected and resolved using ADR had good and satisfactory results. This meant both HMRC and the customers were satisfied with the results. The essence of ADR, has always and continues to be the satisfaction of all parties in a disapute.This ADR does in a justly manner in small claims matters, as opposed in some ways to litigation.

The inclusion of ADR by the HMRC goes a long way in acknowledging the benefits of ADR in the resolution of disputes. The HMRC, in its  use of ADR in the resolution of disputes, adopts facilitators who are trained personnel. They take upon themselves by training ,the task of understanding issues relating to direct and indirect tax disputes.

The provision here is the requirement that the matter must fall within the criteria  listed as within the facilitator’s role  in the ADR scheme.

Whether ADR is an effective means of resolving disputes by the HMRC or not, can be seen by the feedback received in the use of the process, which to a large extent has been encouraging. The use of ADR by the HMRC in certain disputes  is provided for under http://www.hmrc.gov.uk/adr/appendix-a.pdf

The use of ADR does not in any way affect the customers right to have an internal review  or seek redress in a tribunal.  An important provision in the use of ADR by the HMRC is the fact the facilitator can not be called upon as a witness in a tribunal or court. The provision excludes the facilitator from liability and makes the use of ADR by the HMRC a matter of choice by parties.

Who needs alternative dispute resolution (ADR)? Friday, Jan 27 2012 


Undoubtedly, there has been a change in lifestyles and attitude towards dispute resolution both at home and in the workplace, as well as domestically and internationally. It will be correct to state we all need ADR.

Internationally, arbitration which is a form of dispute resolution is usually used by large corporations, multinationals and States. Domestically, families are encouraged to use mediation in resolving internal challenges. The British government recently stated its support for alternative dispute resolution by the provision in the law, that couples should first use mediation before seeking litigation in the resolution of disputes.

ADR is seen as acceptable because of its non-binding nature and because ADR comes across as compelling. Therefore, its compelling  nature means there is effectiveness in individual cases and privacy, all this add up to the surge and interest in ADR, one which can not be underplayed.

Disputant are increasingly drawn towards ADR as opposed to litigation. The provision in an agreement or contract for resolving disputes in a fast, efficient and cost-effective way as an alternative to litigation is the singular reason a vast majority would prefer ADR to litigation. The outcome of ADR is such that it is designed to achieve a resolution to which all the parties are committed to.

ADR in perspective -The gradual transition from court trials to the alternative means Tuesday, Jan 24 2012 


Ironically, a world without court trials would be one of anarchy. The beauty of court trials is the ability of courts to create and expand the governing law.This has led to the courts dealing with matters that have been used as precedent in the International system, as well as led to the expansion of International law. In some ways led to the establishment of administrative law cases.

A stipulation on the rights of individuals against those of the State: a feat ADR is unable to achieve ,although ADR does play an important role in people’s daily lives.

Though court trials are diminishing in the Western world, the importance of court trials  should not be overlooked.  In the United States of America and The European Union, the procedural requirements give the people a platform to voice their dissatisfaction directly to the authorities. Fortunately, with the European Union having the European Court of justice (ECJ) as a referral point for all European parties, people are aware of the provision that they could bring matters between themselves and their governments to the ECJ, which as expected,  breeds confidence in the legal system.

Historically, sovereign immunity would have prevented cases from reaching the courts but with the democratic provisions, court trials have become indispensable. Some will argue that the courts are busier now than ever, though in some ways this could be true with people conscious of their rights and the accessibility to justice the courts offer disputants.

The reality is that though the courts may be busier now than ever, this could be attributed to the increase in population and globalisation, as well as the desire by society to have a transparent and public process. The concept of the court trials disappearing does not have so much legitimacy now, as it would have in a couple of years with the growth and enforcement of alternative dispute resolution (ADR) mechanisms.

The disappearing court trial is rather a gradual and definite situation which will soon materialise, given the obvious part the press plays  in disseminating information. The press has been attributed to being the social watchdogs or public watchdogs in the society, for their role in ensuring transparency.

Though it must be stressed that the right of access to court is conditional, and may be subject to limitations, these are limitations approved by implication since the right of access by its very nature calls for control by the State. The State is still compelled to act accordingly, as long as it does confirm to the rules of court simply because the State and the court are meant to work together and they both should be seen to complement one another.

All actions are subject to the dictates of the constitution. As required, there should not be any form of interference with anything in the constitution, because the constitution must be maintained, for it is the only safeguard of the peoples’ liberties.



Power of information online: SOPA in issue Monday, Jan 23 2012 


Law and technology can work well especially in the use of technology on online dispute resolution mechanisms to resolve disputes. However technology in some ways will not give the people access to work well as seen in the recent bid to legislate on SOPA.

SOPA through  the law and its various agencies sought to stop online trafficking in copyright materials especially in intellectual property and counterfeit products, this was protested against by the people because of its perceived infringementon freedom of information.

The protest over the use of SOPA and PIPA, is one which shows the government interest to censor information online, this received intense protest from across the world. Censorship which SOPA does intend to do, in some ways is imperative for the good governance of the people, at the same time it can work against the people because it may foster a lack of accountability and lots of infringements by the people.

The enforcement of SOPA will authorise the discontinuance of sites that are perceived of copyright infringement. Government is vested with the mandate to legislate on matters that affect the daily lives of its citizens. On the other hand, there is a debate on whether the government can legislate on technology in this case SOPA.

Technology industry activists are of the view SOPA is not in the interest of the people, therefore should not be enforced. Contrary to the technologist views on SOPA, governments feel the need to bring SOPA legislation into the mainstream of all online works.

SOPA is the latest occurrence to impose rules, regulations  and legislation on the changing world of information technology. Protest on the SOPA gained momentum which has led to the suspension of the legislation on SOPA.

World Intellectual Property Organization Copyright Treaty (WIPO) passed by United Nations in 1996 was solely for the protection of copyright. It provided a measure of safety for information technology and at the same time faced a good measure of criticisms for its lack of applicability to various situations, rather it was seen as a ‘one size fits all ‘ which was seen as unsatisfactory.

The implementation of SOPA will to a large extent damage the puiblic freedom of information a and most importantly the freedom of expression. In ways unimaginable from sharing, discussing, reading, watching, linking/connecting.

The power of information online is a strong one. With both censored and uncensored works coming online every minute. At the end the ultimate scenario will be to keep online works free and open and at the same time have checks and balances on copyright infringement.

Law follows suit in technology Thursday, Jan 19 2012 


The dawn of the 21st Century signalled a change of course. For this reason, lawyers saw the formalisation of ADR.  As a result law had to follow suit with the changes seen in technology.

Technology has changed the world in various aspects from e-commerce with the aid of e-Bay, friendships made and some reignited by Facebook, professional connections made on LinkedIn, news disseminated by twitter. The list goes on. The fact remains, technology can not be ignored, because it has entered into every facet of human life. In simple terms, technology is important.

The changing face of technology means that it is possible to use technology in the resolution of disputes/conflicts. In as much as technology can be used in the resolution of conflicts/disputes, it has at the same time generated fresh conflicts which were initially unknown to man. As a result, technology can resolve these conflicts. The use of Online Dispute Resolution(ODR)  is one that is undergoing extensive expansion and gradual acceptance.

The study by the United Nations Commission on International Trade Law (UNCITRAL) to include ODR to protect consumers in e-commerce is one that will help this evolving concept ODR.  By 2015 the European Union hopes  to have a region- wide use of ODR. This will definitely lead to worldwide use of ODR which will decongest the number of cases which are yet to be dealt with.

ODR promises to resolve a significant number of cases when widely adopted.

 

An ADR Advocate Tuesday, Jan 17 2012 



Man has for years been subjected to litigation as the sole means of dispute resolution. At the end of the 1970’s, however, the concept of Alternative Dispute Resolution (ADR) was formally established. This obviously caused a shift in the means of dispute resolution, with disputants having a choice on how they wanted their matters dealt with. In a recent incident, I was approached by a lady whose close friend made some defamatory statements against her. This was a friend she perceived as a sister and confidante. The aggrieved lady had a choice to seek redress in a court of law because of the gravity of the defamatory statements made against her.  With the production of evidence in the form of text messages, her matter was one which she could have easily won and handsomely compensated. On my advice, however, she declined to seek redress in a law court. I advised her to use ADR mechanism,  conciliation as a means of resolving the dispute; following a series of meetings the dispute was resolved amicably. The advantage in the use of ADR is the fact that, in most instances, parties come to a compromise, and in this case the parties were back to the strong friendship they once shared and have fortunately resolved all underlying frictions that existed prior to the defamatory statements.

When I first got involved in ADR, the sheer vigour, freedom and thoroughness of the alternative dispute resolution mechanism in the resolution of disputes was what struck me as the difference between litigation and ADR.  I learned about ADR in Great Britain, which has a rich legal system that has been adopted in many countries.

Online Dispute Resolution (ODR) as a form of Alternative Dispute Resolution (ADR) Thursday, Jan 12 2012 


Online dispute resolution is a form of alternative dispute resolution. This is a relatively new concept, that has substantial room for commercial and personal application in a technologically aligned world.

I will be discussing current issues pertaining to this evolving concept as well as drawing attention to the merits and challenges envisaged in the advancement of online dispute resolution. As such, I will be taking comments and publishing my conference presentations on alternative dispute resolution (ADR), with emphasis on online dispute resolution(ODR), both past and present.