Legal certainty in the extrajudicial dispute resolutions

Abstract:

This essay explores the consequences of the existence of common principles in ADR proceedings, particularly in adjudicative ADR, which can supplement any limits of sectoral laws and regulations. In such cases, the role played by the individual called to settle the dispute may be extremely relevant: if, instead of applying the legal provisions laid down by the lawmaker, he evaluates the interests of the parties and ponders on their conduct, it may be possible to identify principles that are able to drive the decision-making process. Such principles would also apply to very different areas. However, the consequential and ambiguous concentration of the power to make the rule and the power to apply the rule under the same person may lead to unpredictable decisions.