Contents

Main body.............................................................................................................................................2
1. The equity developed and how it differs from the common law:..............................................2
2. Resolve the situation in the case 2:...........................................................................................4
3. Resolve the situation in the case 3:...........................................................................................5
4. Resolve the situation in the case 4:...........................................................................................6
5. Resolve the situation in the case 5:...........................................................................................7
6. The distinction between a contract of service and a contract for service:................................8
7. Resolve the situation in the case 7:.........................................................................................10
8. Specify and explain differences between raising finance of a Company..................................11
9. Alternative to litigation in the ordinary courts are available and the advantages and
disadvantages of these alternative methods of dispute resolution compared to litigation in the
courts:..............................................................................................................................................15
References:..........................................................................................................................................19

1
Main body
1. The equity developed and how it differs from the common law:
a) The equity developed:
In the UK legal system, the most common one we know is common law.
Common law refers to legal precedent that is synthesized by several past
court decisions and or similar courts as opposed to executive action or
through legislative statutes. These legal precedents are the rules that
common-law judges use to decide legal disputes and are at the same time
binding on all future decisions that the court must make. The common law
system is widely used, especially in countries that trace their legal heritage
to the UK, including the UK, most of the United States and Canada, and
members of the Commonwealth. Commonwealth (Holmes OW, 1881)
Throughout the centuries of civilization, the common law courts have
reviewed cases and determined what to do in each. However, over time, the
rules of common law become more rigid and lack fairness in handling
cases. Thus, they recognize the limitations of common law, which are
evident since they have a difficult case to deal with. They propose to the
King, who has judicial power at that time to resolve the matter of the case.
The King began to delegate the function of handling such petitions to the
Prime Minister. However, at that time Chancellor never tried to develop a
new legal system of justice. Then he only makes fair decisions on the
problems he arises. In fact, the common law and the constitutional courts
are two separate institutions, so they act differently. Chancery evolved into
a judicial body known as the Chancery Court, until the end of the 15th
century did Chancery's judicial authority be fully recognized. The Chancery
Courts act with the aim of delivering fair results according to their
conscience while the regular law courts abide by the strict rules to which
they are bound to make their decisions. Gradually, the Chancery Court was
developed as a court of conscience to combat the shortcomings that exist in
the common law system so we have Equity. (Lawteacher, 2018)

2
 Lord Cowper explained that "Equity is not part of the law, but a qualifying
ethical quality that governs and reforms the rigor, rigidity and angles of the
law". Equity is a separate legal system and it also has its own remedies.
Mainly equity complement the shortcomings of common law since common
law does not have appropriate remedies and does not have a fully
documented system for some special cases. Newly invented fair remedies
are aimed at a person other than society in general as in general law.
Common law attorneys have argued about a conflict between fairness and
common law, equity may use a joint order to prevent enforcement of
common law judgment. However, justice triumphs not injustice, so it is
good to use a common imperative when there is injustice in the common
law. (Lawteacher, 2018)
As equity develops, it begins to conflict with general law. The litigant who
have used justice to their advantage often seek a fair restraining order that
prohibits the enforcement of a common law order. If a common law
sentence is executed without following a general order, the executor could
face a prison sentence. The matter was referred to Attorney General Sir
Francis Bacon when the dispute unfolded that a resolution could not be
reached between the courts. At that time, Sir Francis upheld the general
order and stated that "in the event of any conflict between the general law
and the law of justice, justice will take precedence". Later, Lord Ellesmere
pointed out in the above case why Chancery was needed. From 1529
onwards, records of proceedings at Premier Courts were kept leading to the
development of the doctrine of justice when Sir Thomas Moore was
appointed Prime Minister. Moreover, when Equity develops, it still cannot
replace Common Law it only adds to solve problems. (Lawteacher, 2018)

b) Differs between the equity and the common law:

Although Equity complements Common Law, there are differences between
them, as can be seen in the table below.

Common law Equity

3
Developed by circuit judges from Developed by Chancellors, in dealing
English. with petitions addressed to the King
customary law applying the principle of from citizens complaining about the
stare decisis. rigidity of the common law.
Complete system of law/ Complements the common law, but
could not replace it.
Does not recognise the existence of Acknowledges the common law and
equity. tries to provide an alternative solution.
Upholds rights irrespective of the Originally, a court of conscience which
motives or intentions of the parties. ordered the parties to do what was just
and fair. These principles are contained
in equitable maxims, e.g. ‘He who
seeks equity must do equity’ and
‘Delay defeats equity’.
Remedies available as of right. Discretionary remedies.
Figure 1: Differences between the common law and equity

2. Resolve the situation in the case 2:

Fact: When Gilly was visiting a friend in prison, he was caught attempting to
pass the friend a wig and a jacket. Gilly also had a pair of nail scissors in his
pocket. He was changed under a section of the Prison Detention Act that states
“a person must not take into a prison any knife, dagger, firearm, club or other
thing whatsoever”.
As part of the Prison Detention Act states "a person cannot bring into prison
any knife, dagger, gun, stick or anything else". To explain laws, regulations,
there are different rules of interpretation. According to the literal rule, if the
words of the statute are clear and unambiguous, the court must give them their
ordinary plain meaning, regardless of the result. Where a literal interpretation
produces an absurd or perverse decision, it is up to Parliament to put matters
right, and is not the job of non-elected judges. In this case, the rule on items
such as knives, daggers, guns, sticks or anything else is those that cannot be

4
 carried inside the prison. However, the rule contained in the case is interpreted
as the mischief rule. The mischief rule is closely associated interpret the words
of the Act in the light of this knowledge with the modern purposive approach to
interpretation, which says that a judge should adopt the construction which will
promote the general aims or purposes underlying the provision. The meaning of
this rule is to prevent outsiders from giving in to people inside prison that can
be used to escape prison. Furthermore, the items Gilly brought in while visiting
his friend's prison were a wig, a jacket and a pair of nail scissors. Of these, a
pair of nail is an item that can help Gilly's friend escape from prison. Hence,
Gilly will likely be convicted.

3. Resolve the situation in the case 3:

Fact: Education Act states “an offence to bring heroin, cannabis, cocaine or any
other drug onto a campus” with the purpose to prevent reports of drug
trafficking on campus.
(i) Winnie is caught as she is licking white aspirin powder. According to
dictionary, aspirin is a drug.
According to the Act specified above, in this case Winnie was arrested while
licking white aspirin powder. Based on the principles of the law, students may
not carry heroin, marijuana, cocaine or any other drugs on school property to
prohibit drug trafficking in school. Furthermore, according to the dictionary,
aspirin is a drug, so Winnie violated the above rules.
(ii) Doc is caught with one ecstasy tablet which he says must have stuck in
his pocket.
In this case, Doc was caught with an ecstasy but he says it must be stuck in a
bag. According to the literacy rule, he was going to bring it to the campus, and
was unexpectedly arrested, so he invented a reason to explain this, he must
have violated the law specified above. On the other hand, as a rule of thumb, if
he could explain that he did not intentionally bring the ecstasy to school as
someone else's ecstasy and during school time it was in a bag we can confirm
that he does not violate.
(iii) Cisco is caught with his methadone dose legally prescribed for him.

5
 Cisco's case is the same as Doc. Cisco was arrested on methadone - a drug.
According to the literal rule, it can be said that Cisco violated the law of the
school by bringing drugs to school. Besides, if he can prove that the methadone
he brings to school has been prescribed for him by the doctor and it is legal
then in this respect he is not violating.

4. Resolve the situation in the case 4:

(i) Effah’s statements about the MowMaster 3000 part of the sale contract:
A statement, relating to an existing fact or intention, given during contract
negotiations that the parties generally do not intend to become a contractual
clause, but which may cause another party to sign contract. It can be an oral or
written statement or a person's nonverbal behavior. The statement has many
different meanings depending on the context in which it is used.
(uk.practicallaw.thomsonreuters.com, 2020)
In this case, Effah says “The MowMaster 3000 is the one for you. It's amazing!
The blades can cut through anything, and they’ll never get blunt or bent out of
shape. I think you’ll get through your jobs in no time with this one, and be able
to fit more clients into the week. It was designed in Germany and made from
the best quality parts. ” . First of all, we can see that Effah has suggested that
this is a machine for Joan. In the following statement, he gave unbelievable
information about the lawn mower "It's amazing! The blades can cut through
anything, and they’ll never get blunt or bent out of shape". Next, he expressed
his own opinion through the phrase "I think you’ll get through your jobs in no
time with this one, and be able to fit more clients into the week". However, in
the sentence "It was designed in Germany and made from the best quality
parts", there are information related to the machine that we can trust this is the
factual information about the origin of the product. Furthermore, the origin of
the product is a guarantee for the product so this can be put into the contract.
However, "the best quality" is still unclear about the specific quality of the
product. Ultimately, only Effah's MowMaster 3000 statement of origin is
considered part of the sales agreement.
(ii) The sign apply to Joan’s sale contract with Nailed It Hardware:

6
 In the case, after Joan bought the MowMaster 3000 lawn mower and felt that
the machine was not working like what Effah said when he introduced the
product to her, she called to complain. Joan has received a product disclaimer
from Effah. In a contract, a waiver is a clause that limits or excludes a party's
liability for breaching the contract. In order to exclude any liability inside a
contract notice is required before a transaction can be made. (Lawteacher,
2013) A "Nailed It Hardware is not for any sale of breach or condition in any
sale of its products" sign is used to remove Effah from liability. As required in
the waiver clause that the party wishing to exclude the obligation to notify
before the transaction, Effah did not mention this when introducing the product
to Joan or before she traded to buy the machine. At the same time, when Joan
traded to buy the machine, the sign was partially covered by the potted plant so
she could not see it. On the other hand, a small signboard is placed at the
position of the checkout table, where the customer can change the product
purchase before the customer signs to buy the product so it can be included in
the contract. However, the exception is known as "contra proferentum". The
contrary rule is that when a provision of a contract is uncertain and unclear, that
term will be understood against the party attempting to rely on that term. In the
context of the exclusion terms, this means that the exclusion will not be
applicable. We can see though, that the sign was shown before the contract
took place but since Joan pointed out that the sign was hidden at the time so she
couldn't see it. So when bringing this case to court, the court will see the
difference between Effah is not liable for any breach of warranty or conditions
in any sale of its products and when he introduces the product. Furthermore, the
disclaimer in this case seems to remove Effah's liability entirely so the court
will protect the weaker than Joan.

5. Resolve the situation in the case 5:

In this case, between Barnet and Paula already having an oral agency lease,
Barnet will again represent Paula and help her locate the property she wants.
She wanted to find a four-house building that could be bought for less than £
200,000 and could be rented for at least £ 1,000 per month per unit. But in the

7
 process of helping Paula, Barnet found a good piece of land. To meet the
conditions Paula offered, he gave it to himself. At the same time, he searched
for another piece of land that also met Paula's request, but this land was not as
good as the one he found earlier. He had reported to her about the land he
found but did not mention the best land. However, in this case, according to an
"equal dignities rule" - a legal doctrine that requires the attorney under the
power of attorney to have the authority to enter into a contract, especially the
contracts that must have text. (On behalf of Cassady Law Offices, P.C., 2015)
If you want Barnet to act as an agent to buy the land, the contract between the
two must be a written contract. Besides, Paula's purpose of hiring Barnet is to
find households, not buy them. Against Barnet, Paula may rely on "fiduciary
duties", which also mean duty of loyalty. (cyber.harvard.edu, 2020)
Consequently, Barnet has breached his obligation and has a responsibility to
report all the plots he has searched for including the best piece, not taking it as
his own.

6. The distinction between a contract of service and a contract for service:

Right from the purpose of contract of service and contract for service,we have
seen the difference. An employee-employer contract is a contract of service. A
contractor-client contract is a contract for services. (contractorcalculator.co.uk,
2020)
The line between an independent contractor and an employee is very thin and
the two concepts sometimes overlap so the distinction between these two types
of contracts is important. The relationship between the employer and the
employee needs to be determined based on the facts and circumstances of each
case such as who are the parties to the contract, who pays the salary, who has
the right to fire, and What is the quality of the work, where the job is done, ... .(
Shantimal Jain, 2003). In the table below we will see a clearer difference
between these two types of contracts:

A contract of service A contract for service

Power The employer usually control In the process of performing

8
 of the servant's affairs and the actual work, he is not subject to
servant must obey the master's the orders or control of the
orders/instructions. person he actually does that job.
Work Employees must do the work Employees can send someone to
themselves and cannot be replace them when they are
replaced. unable to complete the job.
Tools The employer will give tools to Employees will prepare the
their employees to do the job. tools themselves to work for
them.
Taxes Employees will be taxed by the Employees will have to
and company before receiving a calculate their own taxes and the
Salaries fixed salary according to the salary they receive is exactly the
company's fixed length of amount agreed in the previous
employment. contract.
Part- Employees are not allowed to Employees can make their own
time job work for more than one person decisions and freely work part-
at the same time. If they want time for more than one person.
to do more job, they will need
the consent of the leader.
Figure 2: Differences between contract of service and contract for service

Herbert Morris Ltd v Saxelby [1916] AC 688

Facts:
“The plaintiffs, Herbert Morris Ltd, manufactured hoisting machinery. The
defendant, Saxelby, was employed and trained by them as a specialized
engineer. His contact contained a covenant that said if he left the company he
would not work directly or indirectly on any similar businesses for seven years.
When he left the company the plaintiffs sought an injunction to stop him
working for a rival company.” (Lawteacher, 2018)
The problem here is that the defendant argues that the trade restriction covenant
limited the defendant's ability to make a living. Makes him unable to get a job

9
 in a general engineering company. Besides, his specialized engineer training
program belongs to a specialized engineering discipline. This made his level of
expertise a hindrance. Hence, it is not conducive to the public to be enforced.
He also argued that Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co
Ltd [1894] AC 535 should not be applied here because the decision refers to
the business owner and not the employee.
The House of Lords believes that it is for the public good that someone is free
to make a living. The legitimate interests of an employer are limited in
protecting its trade secrets and its customers. This covenant goes far beyond
this and is trying to prevent the defendant from using their own skills and
experience, although these have been developed while working at the company.
This is not possible for the public good so the clause cannot be enforced.
In this case, it can be seen that the relationship between Herbert Morris Ltd and
Saxelby is a contract of service. Saxelby signed with them a contract with the
Herbert Morris Ltd company, in which there was a contract that he would not
work directly or indirectly for any similar business for seven years. When
Saxelby completes a contract with the company, apart from having to follow
the arrangement at the same time he is bound to the company. However,
Herbert Morris Ltd was worried that when Saxelby left the company would go
to work for a rival company, they were looking to ban him from working for
his opponent. This goes far beyond the original agreements between the two
sides and one party is trying to hold the other party's development so this is not
possible for the benefit of the community so the terms Nordenfelt v Maxim
Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 issued by the
company is not enforced.

7. Resolve the situation in the case 7:

Legal status of Kim, Tamsin and Anna is the director - who is responsible for
the operation of Teen Tunes Ltd. Kim. However, Kim and Tamsin were
dealing with the company they were the owners of secretly selling assets at a
price below market value, which caused damage to Teen Tunes Ltd where they
were working. job. According to duties of company director, Kim, Tamsin and

10
 Anna are obliged to promote the development of the company and avoid
conflicts of interest and personal interests. (Roger Barker, 2019) So for the
other action of Kim and Tamsin will be responsible for compensating Teen
Tunes Ltd. company. Here, Kim and Tamsin are jointly responsible, also
known as joint & several liability. Joint liability arises when A and B act
independently to cause C the same damage.
(uk.practicallaw.thomsonreuters.com, 2020) And Anna does not know that this
incident happened so she will not be held responsible for this problem.

8. Specify and explain differences between raising finance of a Company

In business, startups need to raise financial capital to be able to pay the costs of
their projects. Having the right business finance is essential so they need to
decide what kind of funding is best suited to their business. The right choice
helps your business have a strong financial foundation, minimizes risks and
increases financial returns. There are four sources of funding that companies
can consider and choose from: (i) By an issue of shares; (ii) By an issue of
unsecured loan; (iii) By an issue of debenture secured by a floating charge over
the company’s assets and (iv) By an issue of preference shares.
(lawdonut.co.uk, 2020)
(i) Raising finance of a Company by an issue of shares:
Most of the businesses' core capital is provided from stock capital. Through the
sale of shares, enterprises can mobilize financial capital when issuing shares of
the company, this mobilization is also known as equity shares. When selling
company shares, they sell ownership of the company in exchange for cash to
pay costs for the projects they carry out. Those who, after buying shares, will
become shareholders, they own a number of rights such as the right to vote at
the general meeting of shareholders, the appointment or removal of the
company's director and auditor, and the right to receive benefits. profit of
shareholders. For small businesses with no achievements, business owners,
family and friends are often the first source of equity. In addition, in the event
that the company ceases to function, equity shares are returned at the end time.
(Surbhi S, 2015)

11
(iv) Raising finance of a Company by an issue of preference shares:
Preferred shareholders are also part owners of the company in the same way as
equity shareholders, but in general, they do not have voting rights. However,
they have the right to vote on matters directly affecting their interests such as
the decision to terminate the operation of the company or in the case of a
capital reduction.
In addition, to be given priority over equity stocks in matters such as
distribution of dividends at a fixed rate and return of capital in case of
liquidation of the company. Therefore, if a cancellation occurs, the holders of
preference shares will be refunded in advance of equity shares. (Surbhi S,
2015)
Jobson v Johnson [1989] 1 WLR 1926
Facts:
Ransomes plc was a holding company of a multinational engineering group
with a subsidiary in the US, RIC. It was agreed that Textron would take over
RIC. Textron’s subsidiary, Acquisition, agreed to acquire all the ordinary
shares in the company, over half of its preference shares and all its convertible
preference shares.
Winpar, an Australian company, was the holder of preference shares. The
proposal was to distribute shares to Acquisition and to cancel the share
premium account. Ransomes plc called for an extraordinary general meeting on
a short notice. During the meeting, a cancellation of the share premium account
and the distribution of RIC shares were approved. Winpar, however, did not
receive the notice for the meeting before it commenced because it did not
provide a UK address and the notice could not have reached Winpar on such
short notice in Australia.
Ransomes plc then presented a petition to the Companies Court applying for a
confirmation of the cancellation of the share premium account as a reduction of
capital under s 137 of the Companies Act 1985. Winpar then exercised its
rights under s 137 and objected to the petition on three grounds. The first was
that the capital reduction proposal involved the ‘return of capital to ordinary

12
shareholders in priority to the preference shareholders.’ 11 The second was that
is involved a ‘risk for the dividend payable to the preference shareholders.’12
Finally, the third was a complaint related to the inadequacy of the procedure.
(Lawteacher, 2018)
The case was tried at the Premier Division Court, where Justice Lloyd argued
that the capital reduction proposal was truly fair and equal for all shareholders
in that it properly explained the interests of the shareholders. The common
shareholder in profit can distribute and reserve the company while letting the
company own assets and sufficient income to cover the interests of preference
shareholders in the near future. Concerning the procedure, he argued that for
the sake of speed, it was the legal minimum rather than the more complete and
leisurely procedure one would normally expect to be followed in a capital cut.
Because the capital reduction proposal was' fair to the preferred shareholder, he
sanctioned.
In this case, Winpar - holders of preferred shares, will have the right to vote on
matters that directly affect their interests in the event of this capital reduction.
However, Winpar did not receive notification of the meeting regarding the
cancellation of the equity premium account and the distribution of RIC shares
was approved. However, if the company RIC has bankruptcy, Winpar with
preferred shares will be pre-emptive to repay equity shares.
(ii) Raising finance of a Company by an issue of unsecured loan:
An unsecured loan is a loan that is approved without the use of the property or
other assets as collateral and. Instead, lenders approve unsecured loans based
on the credibility of the borrower. Normally, borrowers must have a high credit
score to be approved for unsecured loans. Furthermore, since the borrower has
no collateral, the lender cannot claim any assets. Unsecured loans always carry
a higher risk to the lender than to secured loans. If a borrower fails to pay the
debt, the lender can authorize a collection agency to collect the debt or take the
borrower to court. Therefore, if the borrower's company goes bankrupt, the
unsecured lender will recover the capital once the company has paid off to
other borrowers. (JAMES CHEN, 2020)

13
(iii) Raising finance of a Company by an issue of debenture secured by a
floating charge over the company’s assets:

Debit is secured by a floating fee on a company's assets also known as a

secured loan. Secured loan means a loan that is secured or secured by collateral
to reduce risks associated with lending. secured loans, which are considered to
be less risky than unsecured, or unsecured loans. Compared to unsecured debt,
the interest rate for secured debt is lower. If the borrower fails to pay the debt,
the bank seizes the collateral, sells it and uses the proceeds to repay the debt. In
particular, in the case of a company bankruptcy, the secured lenders always get
their money back against the unsecured lenders. (JAMES CHEN, 2020)

Banque Keyser Ullman (UK) Insurance Co v Skandia [1991] 2 AC 249.

Facts:

The plaintiff bank had made loans against property which the borrower had
informed them valuable, and had also taken out insurance policies from the
defendant to protect themselves against the risk of any shortfall on the
realisation of the property. The borrower defaulted on the loan repayments, and
it transpired that he had fraudulently misrepresented the value of the property.
The defendants sought to avoid paying out on the insurance, relying on a ‘fraud
exception’ clause in the policy. In the course of this disagreement, the plaintiff
discovered evidence of a separate fraud by the brokers involved in the loan,
which the defendant had been aware of before the loan had been made but had
not disclosed. The plaintiff argued that the defendant owed a duty to disclose
the information, and that had they done so they would not have trusted the
broker, would not have entered the loan agreement, and would not have
suffered any loss. (Lawteacher, 2018)

The issue, in this case, is whether the defendant has an obligation to disclose
the loss and, in addition, can a causal link be established between its failure to
disclose it and the loss incurred by the claimant. or not.

14
 House of Lords argues that no causal link can be established even if defendants
have disclosed the information, policies will remain denied under the fraud
exception clause. The fact that the defendant knows the plaintiff will not
participate in the loan agreement but because of the breach of his obligations
(not disclosing information) is not enough to determine the cause and effect.

In this case, the defendant took a secured loan with the plaintiff's bank and
notified them that it is valid. The defendant has failed to pay the debt and has
an indication that he has fraudulently declared the value of the property. So
when his company goes bankrupt, he will have to repay the plaintiff's bank
first, then go to repay the unsecured borrowers that the company has.

9. Alternative to litigation in the ordinary courts are available and the advantages
and disadvantages of these alternative methods of dispute resolution compared
to litigation in the courts:
Alternative dispute resolution (ADR) aims to resolve conflicts by collecting
processes. Alternative Dispute Solutions can be of assistance to everyone,
especially those who need the advice to resolve their problem, such as for those
who want to discuss strategies for resolving an issue. interest and those who
want to maintain the most flexibility possible to approach concerns.
(Lawteacher, 2018)
Alternative Dispute Resolution includes 6 types:
Early neutral evaluation:
A non-binding alternative form of dispute resolution. In an initial neutral
assessment, the neutral person, who is likely to be a judge, retired judge or
Queen's Counsel, listens to each party's submissions and then states his or her
opinion on the conclusion. possible results at trial. That view has no prejudice
and has no binding force. This procedure is more likely to be used on an ad hoc
basis when a dispute is being initiated, at least until more experience is
available with it. (uk.practicallaw.thomsonreuters.com, 2020)
Expert determination:

15
Expert determination is an alternative type of dispute resolution. A binding
interrogation process can provide an effective means of resolving technical
problems or disputes between signatories. While it is possible to arrange expert
identification on an ad hoc basis, it is often specified in commercial
agreements. Expert identification can be widely sought in two types of
disputes: where valuation is required and where expert opinion is required on a
technical matter. (uk.practicallaw.thomsonreuters.com, 2020)
Neutral fact finding:
Neutral fact finding is a process in which a neutral third party, selected by
disputing parties or the court, investigates an issue and reports or testifies in
court. The neutral fact-finding process is especially useful for resolving
complex scientific and real-world disputes. (americanbar.org, 2020)
Mediation:
During the mediation process, the disputing parties meet with a neutral person,
who facilitates discussion of their disagreement and negotiating a compromise.
The mediator's primary goal is not to judge which side is "right" or "wrong",
but to encourage and help the parties talk about their differences so that a
mutually agreed solution can be reached. Mediation also to provide the
opportunity to resolve disputes with way helps identify and communicate the
interest of the parties, identify mutual interests and manage potential. Besides
that, mediation can to assist two or more disputants to reach and agreed
decision. Mediation can apply in a variety such in commercial problem, legal
problem, diplomatic problem, conflict that occur in workplace, problem in
community and divorce or other family matters. For outcome of mediation if
accord is reached, the mediator will assist to draft a resolution accord that all
parties will sign. (Lawteacher, 2018)
Conciliation:
Conciliation is another dispute resolution process that involves building a
positive relationship between the disputing parties, however, it is
fundamentally different from mediation and arbitration in some respects.
Conciliation is a method applied in civil law countries, like Italy, and is a more

16
common concept there than mediation. Although mediation is often used in
labor and consumption disputes, Italian judges encourage conciliation in all
types of disputes. A "conciliation" is a person who objectively assists the
parties by advancing their negotiations and directing them to a satisfactory
agreement. It's not like arbitration in that mediation is a much less
confrontational procedure; it seeks to identify a right that has been violated and
searches to find the optimal solution. (Alessandra Sgubini, Mara Prieditis &
Andrea Marighetto, 2004)
Arbitration:
Arbitration is an ADR (alternative dispute resolution) method in which the
disputing parties present their disagreement to an arbitrator or a panel of private
third-party "arbitrators", independent and qualified. The arbitrator (s)
determines the outcome of the incident. While it can be less expensive and
more accessible than adjudication, the arbitration process has well-defined
downsides. Some disadvantages include the risk of loss, formal or semi-formal
rules of procedure and evidence, as well as the possibility of losing control over
the decision after the competent parties make the transfer. for referee. By using
arbitration, the parties lose the ability to participate directly in the process. In
addition, the parties to the arbitration are limited by traditional legal measures
that do not include creativity or innovation. (Alessandra Sgubini, Mara Prieditis
& Andrea Marighetto, 2004)
The advantages and disadvantages of these alternative methods of dispute
resolution compared to litigation in the courts
Advantages of ADR:
Reduced time in dispute: It takes less time to reach a final decision.
(lawyersnjurists, 2020)
Reduced costs in relating to the dispute resolution: It requires less money
because it is cheap. (lawyersnjurists, 2020)
Flexibility: Parties have more flexibility in choosing what rules will be applied
to the dispute and they have the freedom to do so. (lawyersnjurists, 2020)

17
Produce good results: Settlement rates of up to 85 percent. (lawyersnjurists,
2020)
Improved satisfaction with the outcome or manner in which the dispute is
resolved among disputants and increased compliance with agreed solutions.
(lawyersnjurists, 2020)
Neutrality: ADR is neutral to the law, language and institutional culture of the
parties, thereby avoiding any home court advantage that one of the parties may
enjoy in court-based litigation. (lawyersnjurists, 2020)
Confidentiality: ADR proceedings are private. Thereby, the parties can agree to
keep the actions confidential. This allows them to focus on the merits of the
dispute without concern about its public impact. (lawyersnjurists, 2020)
Finality of Awards: Unlike court decisions, which can generally be contested
through one or more rounds of litigation, arbitral awards are not normally
subject to appeal. (lawyersnjurists, 2020)
Preserves relationship: Helps people cooperate instead of creating one winner
or one loser. (lawyersnjurists, 2020)

Disadvantages of ADR:
It can be used as a stalling tactic. (lawyersnjurists, 2020)
Parties are not compelled to continue negotiations or mediation.
(lawyersnjurists, 2020)
Does not produce legal precedents. (lawyersnjurists, 2020)
Exclusion of pertinent parties weakens final agreement. (lawyersnjurists, 2020)
Parties may have limited bargaining power. Parties do not have much of a say.
Little or no check on power imbalances between parties. (lawyersnjurists,
2020)
May not protect parties’ legal rights. The rights of the parties may not be
protected by alternative dispute resolution. (lawyersnjurists, 2020)
There are limits to the discovery process: You should also be aware that you
are generally preceding without the protections offered parties in litigation,
such as those rules governing discovery. Courts generally allow a great deal of

18
 latitude in the discovery process, which you will not have in an alternative
dispute resolution. (lawyersnjurists, 2020)
There is no guaranteed resolution. With the exception of arbitration, alternative
dispute resolution processes do not always lead to a resolution.
(lawyersnjurists, 2020)
Arbitration decisions are final. With few exceptions, the decision of a neutral
arbitrator cannot be appealed. Decisions of a court, on the other hand, usually
can be appealed to a higher court. (lawyersnjurists, 2020)
Participation could be perceived as weakness. While the option of making the
proceeding confidential addresses some of this concern, some parties still want
to go to court “just on principle.” (lawyersnjurists, 2020)

References:
All Answers Ltd. November 2018. What is Common Law?. [online]. Available
from: https://www.lawteacher.net/free-law-essays/administrative-law/what-is-
common-law-administrative-law-essay.php?vref=1 [Accessed 7 December
2020].

All Answers Ltd. November 2018. The Reasons Behind the Creation of Equity.
[online]. Available from: https://www.lawteacher.net/free-law-essays/equity-
law/the-reasons-behind-the-creation-of-equity-equity-law-essay.php?vref=1
[Accessed 7 December 2020].

All Answers Ltd. November 2018. Equity is a Separate System of Law. [online].
Available from: https://www.lawteacher.net/free-law-essays/equity-law/equity-
is-a-separate-system-of-law-law-essays.php?vref=1 [Accessed 7 December
2020].

All Answers Ltd. November 2018. The Historical Development of Equity Law.
[online]. Available from: https://www.lawteacher.net/free-law-essays/equity-
law/history-of-equity-law.php?vref=1 [Accessed 7 December 2020].

19
All Answers Ltd. November 2018. Equity Had to Supplement the Common Law.
[online]. Available from: https://www.lawteacher.net/free-law-essays/equity-
law/equity-had-to-supplement-the-common-law-equity-law-essay.php?vref=1
[Accessed 7 December 2020].

All Answers Ltd. November 2018. Differences Between Common Law and
Equitable. [online]. Available from: https://www.lawteacher.net/free-law-
essays/equity-law/for-one-to-discuss-law-essays.php?vref=1 [Accessed 7
December 2020].

All Answers Ltd. November 2018. Herbert Morris Ltd v Saxelby. [online].
Available from: https://www.lawteacher.net/cases/morris-v-saxelby.php?vref=1
[Accessed 7 December 2020].

All Answers Ltd. November 2018. Re Ransomes Plc [1999] 2 BCLC 591 CA
Case Summary. [online]. Available from: https://www.lawteacher.net/cases/re-
ransomes-plc.php?vref=1 [Accessed 8 December 2020].

www.contractorcalculator.co.uk. 2020. IR35 Explained: ‘Contract Of Service’

And ‘Contract For Services’. [online] Available at:
<https://www.contractorcalculator.co.uk/difference_contract_for_services_of_se
rvices_ir35.aspx> [Accessed 8 December 2020].
Jain, S., 2020. [online] Supremecourtcases.com. Available at:
<http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=1&do_pdf=1&id=778> [Accessed 8 December
2020].
CHEN, J., 2020. Unsecured Loan. [online] Investopedia. Available at:
<https://www.investopedia.com/terms/u/unsecuredloan.asp> [Accessed 8
December 2020].
CHEN, J., 2020. Secured Debt. [online] Investopedia. Available at:
<https://www.investopedia.com/terms/u/secureddebt.asp> [Accessed 8
December 2020].
S, S., 2020. Difference Between Equity Shares And Preference Shares (With
Comparison Chart) - Key Differences. [online] Key Differences. Available at:
<https://keydifferences.com/difference-between-equity-shares-and-preference-
shares.html> [Accessed 8 December 2020].

20
All Answers Ltd. November 2018. Banque Keyser Ullman v Skandia. [online].
Available from: https://www.lawteacher.net/cases/banque-keyser-ullmann-v-
skandia.php?vref=1 [Accessed 8 December 2020].
Uk.practicallaw.thomsonreuters.com. 2020. [online] Available at:
<https://uk.practicallaw.thomsonreuters.com/3-107-5903?
transitionType=Default&contextData=(sc.Default)&firstPage=true> [Accessed 8
December 2020].
Uk.practicallaw.thomsonreuters.com. 2020. [online] Available at:
<https://uk.practicallaw.thomsonreuters.com/9-107-6594?
transitionType=Default&contextData=(sc.Default)&firstPage=true> [Accessed 8
December 2020].
Americanbar.org. 2020. Neutral Fact-Finding. [online] Available at:
<https://www.americanbar.org/groups/dispute_resolution/resources/DisputeReso
lutionProcesses/neutral_fact-finding/> [Accessed 8 December 2020].
Prieditis, M., Marighetto, A. and Sgubini, A., 2004. Arbitration, Mediation And
Conciliation: Differences And Similarities From An International And Italian
Business Perspective. [online] Mediate.com. Available at:
<https://www.mediate.com/articles/sgubiniA2.cfm> [Accessed 8 December
2020].
The Lawyers & Jurists. 2020. Explain The Advantages And Disadvantages Of
Alternative Dispute Resolution’ - The Lawyers & Jurists. [online] Available at:
<https://www.lawyersnjurists.com/article/advantages-disadvantages-alternative-
dispute-resolution/> [Accessed 8 December 2020].
LawTeacher. November 2013. Exclusion Clauses Lecture. [online]. Available
from: https://www.lawteacher.net/modules/contract-law/construction/exclusion-
causes/lecture.php?vref=1 [Accessed 8 December 2020].
Uk.practicallaw.thomsonreuters.com. 2020. [online] Available at:
<https://uk.practicallaw.thomsonreuters.com/4-501-4472?
transitionType=Default&contextData=(sc.Default)&firstPage=true> [Accessed 8
December 2020].
Cassady Law Offices, P.C. 2020. What Is The "Equal Dignities Rule?" | Cassady
Law Offices, P.C.. [online] Available at:
<https://www.cassadylawoffices.com/blog/2015/06/what-is-the-equal-dignities-
rule/> [Accessed 8 December 2020].
Cyber.harvard.edu. 2020. [online] Available at:
<https://cyber.harvard.edu/trusting/unit5all.html> [Accessed 8 December 2020].
Companylawclub.co.uk. 2020. Company Law Club // Legal Position Of A
Managing Director. [online] Available at:

21
<https://www.companylawclub.co.uk/legal-position-of-a-managing-director>
[Accessed 8 December 2020].
Barker, D., 2020. 7 Duties Of A Company Director - Companies House. [online]
Companieshouse.blog.gov.uk. Available at:
<https://companieshouse.blog.gov.uk/2019/02/21/7-duties-of-a-company-
director/> [Accessed 8 December 2020].
Uk.practicallaw.thomsonreuters.com. 2020. [online] Available at:
<https://uk.practicallaw.thomsonreuters.com/8-200-1391?
transitionType=Default&contextData=(sc.Default)> [Accessed 8 December
2020].

22