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The Enforceability of Multi-Tier Dispute Resolution Clauses : A comparative analysis of enforcement in selected jurisdictions

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Title: The Enforceability of Multi-Tier Dispute Resolution Clauses : A comparative analysis of enforcement in selected jurisdictions
Author(s): Westerlund, Jonathan
Contributor: University of Helsinki, Faculty of Law
Degree program: Master's Programme in Law
Specialisation: Obligation Law
Language: English
Acceptance year: 2022
Abstract:
Multi-tier dispute resolution (“MDR”) clauses are tailored clauses that prescribe a layered process of dispute resolution, wherein parties in dispute must first undertake one or more alternative dispute resolution processes before they can refer the dispute to adjudication before an arbitral tribunal or a court. The use of MDR-clauses has become increasingly commonplace in Nordic commercial contracts, but the extent to which a Nordic arbitral tribunal or court would be willing to enforce this order of dispute resolution, and what remedies or sanctions such enforcement would result in, are questions that neither legislators nor legal scholars have provided a comprehensive and satisfying answer to. This scholarly and legislative gap in turn calls into question the usefulness and efficiency of this increasingly common contractual clause. This thesis aims to answer the question of what the Nordic (with a primary focus on the Finnish) legal systems can learn from the way legal scholars, legislators and judges in the Continental European and Anglo-American legal systems have approached the enforcement of MDR-clauses, and how such lessons could aid in creating a working legislative framework for their enforcement in the Nordics. As a result of a general lack of discussion on the subject by Nordic lawyers, this thesis primarily employs a comparative method. Specifically, the comparative research focuses on jurisdictions within the Anglo-American legal system and their Continental European counterparts, where relatively definitive and mostly consistent case law and scholarly debate regarding the enforcement of MDR-clauses has emerged over time. While the analysis concludes that enforceability of MDR-clauses in the Nordics is uncertain at best, it also identified several key concepts necessary for a functional legislative scheme allowing for such enforcement. Given the general disinterest in the subject matter shown by Nordic lawyers, this thesis concludes that legislative change is unlikely to develop on a national level, but rather that international harmonization, preferably from the EU, is required to effect change in the enforceability of MDR-clauses.
Keyword(s): Multi-Tier Dispute Resolution. MDR. Dispute Resolution. Alternative dispute resolution. ADR. Multi-Tier. Tiered dispute resolution. Dispute resolution clause. Arbitration. Mediation.


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