Privatising dispute resolutions and its limits - alternative dispute resolutions or state courts?
Privatising dispute resolutions and its limits - alternative dispute resolutions or state courts?

Summary/Abstract: Every government should provide to its citizens means for the adequate protection of their individual rights and freedoms. The means are the courts to which the citizens have the right of access and the state has to pay for the civil justice and manage to reform the court system. Nowadays, consumers and investors around the world try to resolve their disputes in a speedy and effective manner. Consequently, civil justice plays a crucial role in the life and culture of a state and provides the legal structure for the economy to operate effectively and at the same time has the function of providing authoritative and peaceful resolution of justice enabling social justice, economic stability and social order. Currently, consumers and investors are requesting an impartial and independent court to give effective solutions for their internal disputes or cross-border disputes. Therefore, states around the world are involved in periodical reforms, spending a lot of monies that usually are paid from the taxpayers. Despite the continuing request for improvement, consumers still have difficulties in accessing speedy and effective solution to their disputes through a fair trial under the constitutional principles or international law. Therefore, around the world the question arises, whether state authorities would not be more suitable guarantors of the public interest than law firms and other profited-oriented operators in the market. Consequently, alternative dispute resolution (ADR) has been introduced as a mechanism, which gives a solution to these predicaments, helping to complement the shortcomings of state adjudication. If a state doesn’t manage to reform the court system then ADR can become an effective remedy. Overall, privatising dispute resolution means to comprise the mechanism for dispute resolution regarding commercial and investment arbitration, consumer ADR, and online dispute resolutions for consumers. As the privatization of ADR has proliferated, the ECtHR has found the ADR as an effective mechanism as long as it guarantees fair trial under the article 6/1 of the Convention (ECHR). In addition, recent EU legislation requires each member state to have a consumer dispute resolution body for all consumer disputes, trying to establish the EU platform on online dispute resolution. Also, the international legal framework provides the possibility that the investors to have an arbitration clause in their contract. Although it might seem that there is a total privatisation of the dispute resolution, there is a limit indeed. ADR mechanism, even concurring the state courts still remained interfaced by the possibilities to apply for the annulment of the arbitral award or its non-recognition. Although Albania has invested a lot of monies in the court reform it has failed to provide effective and speedy trials to investors and consumers. The court system remains corrupt and not effective in guaranteeing a due process. Therefore, ADR is seen increasingly as an effective mechanism for foreign investors in almost all of the international contracts. Also, consumers and internal investors are increasingly using the ADR mechanism to resolve their disputes. Therefore, ADR is an important mechanism towards the resolution of consumer and investors disputes. But still Albanian courts have to control on the end the ADR judgments trying to guarantee the public policy in the country. Therefore, the focus of this article will be to examine how the implementation of ADR in Albania and the continuing judicial reform, affect the ability of consumers and investors to resolve their disputes in an effective and speedy manner.

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