- Statutory interpretation and Arbitration
- Part 1
- The statutory interpretation refers to the various ways in which the court interpret and different legislation. The interpretation of the statute is an important aspect in the application of various legislations under the English legal system. In most cases, it is the responsibility of the judge in legal court to interpret the statute (Cross, 2009, p.99). The ambiguity of the statute therefore requires the expertise of the judge. In order for the judges to interpret the various statures effectively, in most cases, they use various tools and methods such legislative history. The judges may use the golden rules in the interpretation of the statute. Using the golden rule to interpret the stature, the judge has the right to substitute a reasonable meaning in the light of the statute as whole. Moreover, the judge may also apply the mischief rule in the interpretation of the statute. In relation to this the judge needs first to consider what the law was before the statute was passed. The judge may also consider the various problems that the law was trying to rectify. In addition, with the use of the mischief rule the judge must also try to analyze and see what the parliament was trying to provide while it passed the statute. Another method used by the judges during the interpretation of the statute is the purpose approach (Barak & Bashi, 2011, p.342). Using this method, the judges normally consider the literal meaning of the statute.
- Considering the above case, it is evident that Sam case may be interpreted in two different ways. First under the local government (miscellaneous provision) Act 1982 section 147 subsection of 1 which relates to the roadside sales states clearly that: No person for person for the purpose of selling anything or offering anything shall use any stall or similar structure kept or placed on the road side lay by on any such road, or in an enclosed land within 15 metres from the road. This is mainly to prevent interruption of any road users. This in turn implies that Sam had breached the local bylaw by operating a mobile fish and chip van near the roadside. In addition, this meant that Sam was guilt to the offence. This is according to the local government (miscellaneous provision) Act 1982 section 147 subsections 2 that anyone who contravenes the section is subject to a fine not exceeding $200. However, the law also provides under the same article subsection 3 that Sam may also be given an opportunity to prove that he took the necessary precaution when setting up his business by the roadside. This can help to ensure that Sam is to avoid the commission of the offense.
- Moreover, considering, the above case it is also evidence that Sam needed first to register his mobile establishment with local authority. This is according to the extracts from the local government (miscellaneous provision) Act of 1982 section 10 which clearly stipulates that one needs first to register any street business. In relation to this, Sam therefore needed to consider the suitability of the site before engaging in any business activities. Parking safety and traffic management is another issue that Sam also needed to put into consideration while using his van to sell his food. The hours of operation are another important factor that Sam also needed to consider before setting up his business. This is to help to ensure that he does not interfere with the traffic during the rush hours. In addition, Sam also needed to pay the application fee, which would have enabled him to acquire the trading license required; he required in order to operate his business. The other possible interpretation of the statute is about the rules of parking. In relation to this, the law stipulates clearly that the police or the local authorities have the right to approach any person who is found to have parked his vehicle within the lay-by. This therefore implies that the police and the local authority had the right to question Sam since he often parked his van near the dual carriage. In relation to this, the police also have the right to order Sam to remove his business near the dual carriage. However, in the event that Sam refused to remove his business, then there is a possibility that a court order might be issued.
- Part 2
- Sam can use various alternative dispute resolution methods in order to solve his case outside the civil courts. In this case, he may use methods such as arbitration, layer supported mediation, conciliation, negation among other.
- Arbitration
- This refers to a method where the parties involved in the dispute normally refer to an external person who acts as an arbitrator (Bercovitch & Jackson, 2009, p.50). In this type of dispute resolution, both parties must agree to accept the decision of the arbitrator. After presentation of the case, the arbitrator is supposed to impose a decision in which both parties are expected to adhere to. The arbitrator must therefore review the evidence presented by both parties before issuing a judgment.
- Advantages of arbitration
- This method has several advantages when used as dispute resolution method. First, the method allows the disputed parties to select their arbitrator. This in turn helps to ensure that both parties are comfortable with the decision made by the arbitrator (Bercovitch, & Jackson, 2009, p.51). Second, the arbitration method is also faster than the court system. In addition, it is also evident that the method is cheap compared to the court system.
- Disadvantages of arbitration
- The method also has some disadvantages. First, it may be subject to pressure from various firms represented in the case. In this case, the method may be subject to pressure from the food retail company. This implies that Sam may not be able to get a fair judgment when using the method. Second, it is also evident that if the arbitration is arbitration is compulsory the one of the parties may decide to opt for the court system instead of the arbitration.
- Lawyer supported mediation
- In this type of dispute resolution, a third party is involved in the negotiation process. In this case a third party such the lawyer may assist the two disputed parties to reach an agreement. In order to facilitate an effective dispute resolution, the third party is supposed to play a neutral role in the mediation process.
- Advantages of lawyer supported mediation
- This type of dispute resolution has several advantages compared to the ordinary court system. First, the method is cost effective (Hardy, & Rundle, 2010, p.147). This is because the method allows the case to be solved within the shortest possible time. Second using the method the confidentiality of the case can be achieved. This is because using the method one may be able to achieve high level of confidentiality as opposed to the court system, which are normally held in public set up. In addition, the mediation process allows both parties to have control over the mediation process.
- Disadvantages of lawyer supported mediation
- One of the major disadvantages of the lawyer-supported mediation is the fact that the mediator is supposed to be a neutral party in the mediation process and therefore cannot be able to advice. This implies that with some issues one may be forced to seek the advice from an attorney (Hardy, & Rundle, 2010, p.147). In addition, the method may also be subject to an external pressure from the one of the powerful parties that is involved in the dispute.
- Conciliation
- The conciliation also serves as another method, which Sam may use in order to acquire justice. In this case, the person involved in the conciliation mainly helps the two the two disputed parties to build a positive relationship (Goh, 2007, p.107). In addition, the conciliator may also assist the two parties to establish an effective communication mechanism, clarify any issues that may arise and clear any strong unnecessary emotion. The conciliation method is different from the arbitration is the fact that the mediator meets the two parties separately. This in turn helps the mediator to understand the position of the two parties involved in the dispute.
- Advantage of the conciliation
- Using this method, it is evident that Sam can be able to benefit from various advantages associated with the method. Like other alternative dispute, resolution method Sam is likely to acquire justices in the shortest time possible. Another major advantage of the method is the fact that the method is also cheap compared to the court system. In addition, the method also allows both parties to take part in the negation process (Goh, 2007, p.107). This in turn helps to ensure that both parties are able to establish a positive relationship after the negotiation.
- Disadvantages of the method
- One of the major disadvantages of the method is fact that the one of the party may dispute the integrity of the mediator. This may lead to one of the party involved in the dispute opting for court process. Moreover, it may also not be possible to reach a conclusion using the method.
- References
- Barak, A., & Bashi, S. 2011. Purposive Interpretation in Law. Princeton: Princeton University Press
- Bercovitch, J., & Jackson, R. 2009. Conflict resolution in the twenty-first century: Principles, methods, and approaches. Ann Arbor: University of Michigan Press
- Cross, F. B. 2009. The theory and practice of statutory interpretation. Stanford, Calif: Stanford Law Books.
- Goh, G. M.2007. Dispute settlement in international space law: A multi-door courthouse for outer space. Leiden, the Netherlands: Marinus Nijhoff Pub.
- Hardy, S., & Rundle, O. 2010. Mediation for lawyers. Sydney: CCH Australia.
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