Although there is no formally agreed definition of alternative dispute resolution (ADR), it is generally accepted as including all methods of resolving disputes other than through formal litigation. The use of ADR has developed significantly over the past few decades and despite the use of the word ‘alternative’ it is now very much part of mainstream thinking in modern-day dispute resolution. The importance of ADR to civil actions was reinforced by the Civil Procedure Rules in 1998, which emphasized it as part of the overriding objective, encouraged at all stages of the dispute process, from pre-action to after litigation has commenced. This is reinforced by sanctions that a court can impose on a party which fails properly to embrace the process. The Review of Civil Litigation Costs carried out by Jackson LJ further promoted the importance and use of ADR. There are many different forms of ADR, both adjudicative and non-adjudicative. This chapter will focus on the use of mediation as a non-adjudicative form of ADR and the steps the courts take to require (rather than compel) the parties to attempt to resolve their disputes.
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Additional Chapter Aspects of Commercial ADR
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8. Articles 101 and 102: private enforcement in the courts of Member States
This chapter describes the private enforcement of competition law, that is to say, the situation where litigants take their disputes to a domestic court or, quite often, to arbitration. Section 2 deals with the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. Section 3 deals with private actions in the UK courts. Section 4 considers the use of competition law not as a ‘sword’, where the claimant’s cause of action is based on an infringement of competition law, but rather as a ‘shield’, that is to say as a defence, for example to an action for breach of contract or infringement of an intellectual property right. Section 5 contains a brief discussion competition law and arbitration.
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10. Competition Act 1998 and the cartel offence: public enforcement and procedure
This chapter describes the system of public enforcement under the Competition Act 1998. It begins with a consideration of the way in which inquiries and investigations are carried out under the Competition Act. After a section on complaints, the chapter examines the extent to which it may be possible to receive guidance from the CMA on the application of the Act. Section 5 describes the enforcement of the Competition Act. Section 6 deals with the criminal law cartel offence and section 7 with company director disqualification, a tool that the CMA has used several times in recent years. Section 8 deals with the sectoral regulators’ concurrent powers, with the CMA, to apply the Chapter I and Chapter II prohibitions in the Competition Act in the sectors for which they are responsible. Section 9 describes the system of appeals under the Competition Act. The chapter incorporates the amendments to the Competition Act made by the Digital Markets, Competition and Consumers Act 2024.
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8. Articles 101 and 102: private enforcement in the courts of Member States
This chapter describes the private enforcement of competition law, that is to say the situation where litigants take their disputes to a domestic court or, quite often, to arbitration. It will deal with the private enforcement of Articles 101 and/or 102 as a matter of EU law, with particular emphasis on the Damages Directive. It also describes private actions for damages and injunctions in the High Court and the UK Competition Appeal Tribunal. The chapter considers the use of competition law as a defence, for example to an action for breach of contract or infringement of an intellectual property right. The chapter concludes with a brief discussion of issues that can arise where competition law disputes are referred to arbitration rather than to a court for resolution.
