Newer Forms of Contract-Based Dispute Resolution : An examination of efficiency-driven procedures in light of traditional adversarial procedures

Sammanfattning: This thesis takes an interest in newer forms of contract-based dispute resolution used in commercial disputes. Public civil trial and arbitration has for a long time been the procedure of choice for disputing commercial parties. Arbitration is still by far the most established and used procedure when it comes to private dispute resolution. However, for some decades, newer forms of private procedures have been developed and established as alternatives to public courts and arbitration procedures. Even though public civil trial and arbitration procedures are quite different procedures, they are both housed under the fair trial umbrella of the adversarial procedural framework of for example ECHR or procedural due process. Thus, the dispute resolution forms of public civil trial and arbitration can be seen as the maximum and minimum versions of acceptable fair trial procedures.The newer procedures of interest in this thesis contain aspects that seemingly would not be possible to achieve within a fair trial framework, and these aspects seem to revolve around various forms of efficiency. The working hypothesis of this thesis is therefore that the newer procedures are efficiency-driven rather than focused on a fair trial, and that efficiency is allowed to take a central role. At the same time, there are still some elements of traditional adversarial fair trial elements in these procedures and the question of interest is how these two sides of procedure, adversarial fair trial procedure and contract procedure, interact. From this starting point the thesis analyses newer forms of contract-based dispute resolution procedures – dispute boards, statutory adjudication and rent a-judge procedures – with the goal to examine how the newer procedures differ from the traditional ones, and what role efficiency plays in these newer types of procedure. The analysis reveals a type of procedure in which efficiency not only plays a central role but also is the presumption. This ultimately means that efficiency takes priority over a fair trial.