Who has to initiate a plea bargain?
Plea bargaining in the United States
The constitutionality of plea bargaining was established by "Brady v. United States" in 1970, although the Supreme Court warned that plea incentives which were sufficiently large or coercive as to over-rule defendants' abilities to act freely, or used in a manner giving rise to a significant number of innocent people pleading guilty, might be prohibited or lead to concerns over constitutionality. "Santobello v. New York" added that when plea bargains are broken, legal remedies exist.
Plea bargain
Another situation in which an innocent defendant may plead guilty is in the case of a defendant who cannot raise bail, and who is being held in custody in a jail or detention facility. Because it may take months, or even years, for criminal cases to come to trial or even indictment in some jurisdictions, an innocent defendant who is offered a plea bargain that includes a sentence of less time than he would otherwise spend in jail awaiting an indictment or a trial may choose to accept the plea arrangement and plead guilty.
Plea bargaining in the United States
However, in 1975 the Attorney-General of Alaska, Avrum Gross, ordered an end to all plea-bargaining; subsequent attorneys-general continued the practice. Similar consequences were observed in New Orleans, Ventura County, California, and in Oakland County, Michigan, where plea bargaining has been terminated. Bidinotto found:
Plea bargain
Under the Japanese system, formally known as the , plea bargaining is available in prosecutions for organized crime, competition law violations, and economic crimes such as securities law violations. The prosecutor, defendant, and defense counsel each sign a written agreement, which must then be admitted into evidence in a public court without delay.
Plea bargain
Guilty plea of the defendant is not enough to render guilty judgment. (Article 212 of the Criminal Procedure Code of Georgia) Consequently, court is obliged to discuss 2 important issues:
Pleading
Generally, a plea could be dilatory or peremptory. There were three kinds of dilatory plea: to the jurisdiction, in suspension, or in abatement. The first challenged the court's jurisdiction, the second asked the court to stay the action, and the third asked the court to dismiss the action without prejudice to the other side's right to bring the claims in another action or another court. A peremptory plea had only one kind: a plea in bar. A party making a plea in bar could either traverse the other side's pleading (i.e., deny all or some of the facts pleaded) or confess and avoid it (i.e., admit the facts pleaded but plead new ones that would dispel their effect). A traverse could be general (deny everything) or specific. Either side could plead imparlance in order to get more time to plead on the merits. Once the case was at issue, the defendant could reopen the pleadings in order to plead a newly discovered defense (and start the whole sequence again) by filing a plea puis darrein.
Legal case
A criminal case may in some jurisdictions be settled before a trial through a plea bargain. Typically, in a plea bargain, the defendant agrees to plead guilty to a lesser charge than that which was originally brought by the grand jury or prosecutor. A defendant who goes to trial risks greater penalties than would normally be imposed through a plea bargain.
Alford plea
US Air Force attorney Steven E. Walburn argues in a 1998 article in "The Air Force Law Review" that this form of guilty plea should be adopted for usage by the United States military. "In fairness to an accused, if, after consultation with his defense counsel, he knowingly and intelligently determines that his best interest is served by an Alford-type guilty plea, he should be free to choose this path. The system should not force him to lie under oath, nor to go to trial with no promise of the ultimate outcome concerning guilt or punishment. We must trust the accused to make such an important decision for himself. The military provides an accused facing court-martial with a qualified defense attorney. Together, they are in the best position to properly weigh the impact his decision, and the resulting conviction, will have upon himself and his family," writes Walburn. He emphasizes that when allowing these pleas, "trial counsel should establish as strong a factual basis as possible", in order to minimize the possible negative outcomes to "the public's perception of the administration of justice within the military".
Stephanos Bibas writes in a 2003 analysis for "Cornell Law Review" that Judge Frank H. Easterbrook and a majority of scholars "praise these pleas as efficient, constitutional means of resolving cases". Bibas notes that prominent plea bargain critic Albert Alschuler supports the use of this form of plea, writing, "He views them as a lesser evil, a way to empower defendants within a flawed system. As long as we have plea bargaining, he maintains, innocent defendants should be free to use these pleas to enter advantageous plea bargains without lying. And guilty defendants who are in denial should be empowered to use these pleas instead of being forced to stand trial." Bibas instead asserts that this form of plea is "unwise and should be abolished". Bibas argues, "These procedures may be constitutional and efficient, but they undermine key values served by admissions of guilt in open court. They undermine the procedural values of accuracy and public confidence in accuracy and fairness, by convicting innocent defendants and creating the perception that innocent defendants are being pressured into pleading guilty. More basically, they allow guilty defendants to avoid accepting responsibility for their wrongs."
Southland Corp. v. Keating
Since "Southland" and subsequent decisions held that state courts have no basis other than standard defenses to contract validity for staying arbitration, the states have instead begun to regulate the arbitration process and agreement themselves, particularly through a model statute called the Revised Uniform Arbitration Act (RUAA) which has as of 2010 been adopted by 13 states and the District of Columbia, with three more states considering it. California now requires that an arbitrator disclose any potential conflicts of interest to parties prior to the arbitration, and New Mexico added to its version of the RUAA a "disabling civil dispute clause" making arbitration agreements voidable in consumer, credit, employment and tenant contracts. Some of these have been challenged in court. One case that did, "Green Tree Financial Inc. v. Bazzle", where a South Carolina court had ordered arbitration on a class basis, reached the Supreme Court but the majority did not consider the question, instead considering whether the contract permitted class arbitration to begin with (Rehnquist argued in his dissent that the FAA did indeed preempt).
Law
Contract law concerns enforceable promises, and can be summed up in the Latin phrase "pacta sunt servanda" (agreements must be kept). In common law jurisdictions, three key elements to the creation of a contract are necessary: offer and acceptance, consideration and the intention to create legal relations. In "Carlill v Carbolic Smoke Ball Company" a medical firm advertised that its new wonder drug, the smokeball, would cure people's flu, and if it did not, the buyers would get £100. Many people sued for their £100 when the drug did not work. Fearing bankruptcy, Carbolic argued the advert was not to be taken as a serious, legally binding offer. It was an invitation to treat, mere puffery, a gimmick. But the Court of Appeal held that to a reasonable man Carbolic had made a serious offer, accentuated by their reassuring statement, "£1000 is deposited". Equally, people had given good consideration for the offer by going to the "distinct inconvenience" of using a faulty product. "Read the advertisement how you will, and twist it about as you will", said Lord Justice Lindley, "here is a distinct promise expressed in language which is perfectly unmistakable".
Allocution
An allocution allows the defendant to explain why the sentence should be lenient. In plea bargains, an allocution may be required of the defendant. The defendant explicitly admits specifically and in detail the actions and their reasons in exchange for a reduced sentence.
Plea bargain
In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In count bargaining, they plead guilty to a subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in advance what sentence will be given; however, this sentence can still be denied by the judge. In fact bargaining, defendants plead guilty but the prosecutor agrees to stipulate (i.e., to affirm or concede) certain facts that will affect how the defendant is punished under the sentencing guidelines.
Burt v. Titlow
Removing Toca as counsel Titlow appealed to the Michigan Court of Appeals. She argued that Toca had advised her to withdraw her plea without doing any research on her case therefore providing her with ineffective counsel. The Appeals Court rejected her argument, stating that her withdrawal of the plea bargain started with her conversation with the sheriff's deputy, not Toca. The Court stated "[w]hen a defendant proclaims…innocence…, it is not objectively unreasonable to recommend that the defendant refrain from pleading guilty-no matter how 'good' the deal may appear".
Plea bargain
Author Martin Yant discusses the use of coercion in plea bargaining:
Bargaining
Bargaining or haggling is a type of negotiation in which the buyer and seller of a good or service debate the price and exact nature of a transaction. If the bargaining produces agreement on terms, the transaction takes place. Bargaining is an alternative pricing strategy to fixed prices. Optimally, if it costs the retailer nothing to engage and allow bargaining, s/he can divine the buyer's willingness to spend. It allows for capturing more consumer surplus as it allows price discrimination, a process whereby a seller can charge a higher price to one buyer who is more eager (by being richer or more desperate). Haggling has largely disappeared in parts of the world where the cost to haggle exceeds the gain to retailers for most common retail items. However, for expensive goods sold to uninformed buyers such as automobiles, bargaining can remain commonplace.
Plea bargaining in the United States
Another argument against plea bargaining is that it may not actually reduce the costs of administering justice. For example, if a prosecutor has only a 25% chance of winning his case and sending the defendant away to prison for 10 years, he may make a plea agreement for a one-year sentence; but if plea bargaining is unavailable, he may drop the case completely.
Plea bargain
Poland also adopted a limited form of plea bargaining, which is applicable only to minor felonies (punishable by no more than 10 years of imprisonment). The procedure is called “voluntary submission to a penalty” and allows the court to pass an agreed sentence without reviewing the evidence, which significantly shortens the trial.
There are some specific conditions that have to be simultaneously met:
However, the court may object to the terms of proposed plea agreement (even if already agreed between the defendant, victim and prosecutor) and suggest changes (not specific but rather general). If the defendant accepts these suggestions and changes his penalty proposition, the court approves it and passes the verdict according to the plea agreement. In spite of the agreement, all the parties of the trial: prosecution, defendant and the victim as an auxiliary prosecutor (in Poland, the victim may declare that he wants to act as an "auxiliary prosecutor" and consequently gains the rights similar to official prosecutor) - have the right to appeal.
Plea bargaining in the United States
Plea bargaining has existed for centuries; in older legal systems convictions were at times routinely procured by confession, and laws existed covering such criminal confessions, although by the 18th century inducements had been forbidden in English Law to prevent miscarriage of justice. Accordingly, early US plea bargain history led to courts' permitting withdrawal of pleas and rejection of plea bargains, although such arrangements continued to happen behind the scenes. A rise in the scale and scope of criminal law led to plea bargaining's gaining new acceptance in the early 20th century, as courts and prosecutors sought to address an overwhelming influx of cases:
Plea bargain
Plea bargaining (Georgian: საპროცესო შეთანხმება, literally "plea agreement") was introduced in Georgia in 2004. The substance of the Georgian plea bargaining is similar to the United States and other common law jurisdictions.
Bargaining
In almost all large complex business negotiations, a certain amount of bargaining takes place. One simplified 'western' way to decide when it's time to bargain is to break negotiation into two stages: creating value and claiming value. Claiming value is another phrase for bargaining. Many cultures take offence when they perceive the other side as having started bargaining too soon. This offence is usually as a result of their wanting to first create value for longer before they bargain together. The Chinese culture by contrast places a much higher value on taking time to build a business relationship before starting to create value or bargain. Not understanding when to start bargaining has ruined many an otherwise positive business negotiation.
Juries in the United States
The vast majority of U.S. criminal cases are not concluded with a jury verdict, but rather by plea bargain. Both prosecutors and defendants often have a strong interest in resolving the criminal case by negotiation resulting in a plea bargain. If the defendant waives a jury trial, a bench trial is held. Research indicates there is not a consistent difference between penalties handed down in jury trials and those handed down in bench trials.
English contract law
Consideration is an additional requirement in English law before a contract is enforceable. A person wishing to enforce an agreement must show that they have brought something to the bargain which has "something of value in the eyes of the law", either by conferring a benefit on another person or incurring a detriment at their request. In practice this means not simple gratitude or love, not things already done in the past, and not promising to perform a pre-existing duty unless performance takes place for a third party. Metaphorically, consideration is "the price for which the promise is bought". It is contentious in the sense that it gives rise to a level of complexity that legal systems which do not take their heritage from English law simply do not have. In reality the doctrine of consideration operates in a very small scope, and creates few difficulties in commercial practice. After reform in the United States, especially the Restatement of Contracts §90 which allows all promises to bind if it would otherwise lead to "injustice", a report in 1937 by the Law Revision Committee, "Statute of Frauds and the Doctrine of Consideration", proposed that promises in writing, for past consideration, for part payments of debt, promising to perform pre-existing obligations, promising to keep an offer open, and promises that another relies on to their detriment should all be binding. The report was never enacted in legislation, but almost all of its recommendations have been put into effect through case law since, albeit with difficulty.
When a contract is formed, good consideration is needed, and so a gratuitous promise is not binding. That said, while consideration must be of sufficient value in the law's eyes, it need not reflect an adequate price. Proverbially, one may sell a house for as little as a peppercorn, even if the seller "does not like pepper and will throw away the corn." This means the courts do not generally enquire into the fairness of the exchange, unless there is statutory regulation or (in specific contexts such as for consumers, employment, or tenancies) there are two parties of unequal bargaining power. Another difficulty is that consideration for a deal was said not to exist if the thing given was an act done before the promise, such as promising to pay off a loan for money already used to educate a girl. In this situation the courts have long shown themselves willing to hold that the thing done was implicitly relying on the expectation of a reward. More significant problems arise where parties to a contract wish to vary its terms. The old rule, predating the development of the protections in the law of economic duress, was that if one side merely promises to perform a duty which she had already undertaken in return for a higher price, there is no contract. However, in the leading case of "Williams v Roffey Bros & Nicholls (Contractors) Ltd", the Court of Appeal held that it would be more ready to construe someone performing essentially what they were bound to do before as giving consideration for the new deal if they conferred a "practical benefit" on the other side. So, when Williams, a carpenter, was promised by Roffey Bros, the builders, more money to complete work on time, it was held that because Roffey Bros would avoid having to pay a penalty clause for late completion of its own contract, would potentially avoid the expense of litigation and had a slightly more sensible mechanism for payments, these were enough. Speaking of consideration, Russell LJ stated that, "courts nowadays should be more ready to find its existence... where the bargaining powers are not unequal and where the finding of consideration reflects the true intention of the parties." In other words, in the context of contractual variations, the definition of consideration has been watered down. However, in one situation the "practical benefit" analysis cannot be invoked, namely where the agreed variation is to reduce debt repayments. In "Foakes v Beer", the House of Lords held that even though Mrs Beer promised Mr Foakes he could pay back £2090 19s by instalment and without interest, she could subsequently change her mind and demand the whole sum. Despite Lord Blackburn registering a note of dissent in that case and other doubts, the Court of Appeal held in "Re Selectmove Ltd", that it was bound by the precedent of the Lords and could not deploy the "practical benefit" reasoning of "Williams" for any debt repayment cases.
However, consideration is a doctrine deriving from the common law, and can be suspended under the principles of equity. Historically, England had two separate court systems, and the Courts of Chancery which derived their ultimate authority from the King via the Lord Chancellor, took precedence over the common law courts. So does its body of equitable principles since the systems were merged in 1875. The doctrine of promissory estoppel holds that when one person gives an assurance to another, the other relies on it and it would be inequitable to go back on the assurance, that person will be estopped from doing so: an analogue of the maxim that nobody should profit from their own wrong ("nemo auditur propriam turpitudinem allegans"). So in "Hughes v Metropolitan Railway Co" the House of Lords held that a tenant could not be ejected by the landlord for failing to keep up with his contractual repair duties because starting negotiations to sell the property gave the tacit assurance that the repair duties were suspended. And in "Central London Properties Ltd v High Trees House Ltd" Denning J held that a landlord would be estopped from claiming normal rent during the years of World War II because he had given an assurance that half rent could be paid till the war was done. The Court of Appeal went even further in a recent debt repayment case, "Collier v P&M J Wright (Holdings) Ltd". Arden LJ argued that a partner who had been assured he was only liable to repay one third of the partnership's debts, rather than be jointly and severally liable for the whole, had relied on the assurance by making repayments, and it was inequitable for the finance company to later demand full repayment of the debt. Hence, promissory estoppel could circumvent the common law rule of "Foakes". Promissory estoppel, however, has been thought to be incapable of raising an independent cause of action, so that one may only plead another party is estopped from enforcing their strict legal rights as a "shield", but cannot bring a cause of action out of estoppel as a "sword". In Australia, this rule was relaxed in "Walton Stores (Interstate) Ltd v Maher", where Mr Maher was encouraged to believe he would have a contract to sell his land, and began knocking down his existing building before Walton Stores finally told him they did not wish to complete. Mr Maher got generous damages covering his loss (i.e. reliance damages, but seemingly damages for loss of expectations as if there were a contract). Yet, where an assurance concerns rights over property, a variant "proprietary estoppel" does allow a claimant to plead estoppel as a cause of action. So in "Crabb v Arun District Council", Mr Crabbe was assured he would have the right to an access point to his land by Arun District Council, and relying on that he sold off half the property where the only existing access point was. The council was estopped from not doing what they said they would. Given the complex route of legal reasoning to reach simple solutions, it is unsurprising that a number of commentators, as well as the Principles of European Contract Law have called for simple abandonment of the doctrine of consideration, leaving the basic requirements of agreement and an intention to create legal relations. Such a move would also dispense with the need for the common law doctrine of privity.
Plea bargain
Even when the charges are more serious, prosecutors often can still bluff defense attorneys and their clients into pleading guilty to a lesser offense. As a result, people who might have been acquitted because of lack of evidence, but also who are in fact truly innocent, will often plead guilty to the charge. Why? In a word, fear. And the more numerous and serious the charges, studies have shown, the greater the fear. That explains why prosecutors sometimes seem to file every charge imaginable against defendants.
Alternative dispute resolution
The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defense in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.
Plea bargain
Largely unique to the Canadian justice system is that further negotiations concerning the final disposition of a criminal case may also arise even after a sentence has been passed. This is because in Canada the Crown has (by common law standards) a very broad right to appeal acquittals, and also a right to appeal for harsher sentences except in cases where the sentence imposed was maximum allowed. Therefore, in Canada, after sentencing the defence sometimes has an incentive to try and persuade the Crown to not appeal a case, in exchange for the defence also declining to appeal. While, strictly speaking, this is not plea bargaining, it is done for largely the same reasons.
Southland Corp. v. Keating
In the 1967 "Prima Paint" case the Court had opened the door to more widespread use of arbitration when it adopted the separability principle, compelling arbitration of a claim that a contract had been fraudulently induced. This holds that any challenge to the validity of a contract with an arbitration clause must be heard by the arbitrator first, unless the challenge is to the arbitration clause itself. It creates a legal fiction that two separate contracts exist.
QRG on Arbitration, Conciliation and Mediation
The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and defense in which existence of an arbitration agreement is alleged by one party and not denied by other is also considered as valid written arbitration agreement.
Felony
A plea bargain (, popularly known as a "Deal") is not applicable for felony crimes at all.
2013–14 Israeli–Palestinian peace talks
At the end of March, "Haaretz" reported that the United States, Israel and the Palestinian Authority were negotiating a "grand bargain" to "salvage peace talks". Kerry and Netanyahu discussed a possible deal to extend them until the end of 2014 and to ensure the Palestinians didn't make unilateral moves at the United Nations. The Israeli proposal conditioned the release of the fourth tranche of 26 Palestinian prisoners on an extension of the negotiations beyond the current deadline of 29 April and included the release about 400 low-profile Palestinian prisoners, as well as the 26 high-profile prisoners, including 14 Israeli Arabs. It excluded the high-profile prisoners Marwan Barghouti and Ahmad Saadat who Israel categorically refused to release. Israel also offered to put an unofficial freeze on most settlement construction outside of East Jerusalem for the next eight months. Israel said it would resolve the status of family reunification requests submitted by some 5,000 families in the West Bank and Gaza. According to Israeli officials, the United States would release Jonathan Pollard as a concession to Israel. On 23 April 2014, "The Jerusalem Post" reported that Abbas listed 3 conditions for extending peace talks beyond the 29 April deadline; that the borders of a future Palestinian state be dealt with during the first three months of the extended talks, a complete freeze on all settlement construction, and the release without deportation of the fourth batch of Palestinian prisoners, including Israeli-Arabs.
United States constitutional criminal procedure
The government is not required to disclose impeachment material prior to plea bargaining. Whether the government must disclose exculpatory material during plea bargaining is an open question."It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial" consistent with the Due Process Clause. The "test" is "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him."
Plea bargain
The Federal Rules of Criminal Procedure provide for two main types of plea agreements. An 11(c)(1)(B) agreement does not bind the court; the prosecutor's recommendation is merely advisory, and the defendant cannot withdraw his plea if the court decides to impose a sentence other than what was stipulated in the agreement. An 11(c)(1)(C) agreement, however, binds the court once the court accepts the agreement. When such an agreement is proposed, the court can reject it if it disagrees with the proposed sentence, in which case the defendant has an opportunity to withdraw his plea.
Permanent Court of Arbitration
Arbitration between two states takes place when two member states of the PCA decide to submit a dispute for arbitration to a PCA Tribunal. The Tribunal consists of 5 arbitrators, two of which are selected by each party to the arbitration (and one of whom may be a national of the party concerned). The four arbitrators choose the fifth and presiding arbitrator.
Plea bargain
If the court finds that presented evidence is not sufficient to support the charges or that a motion to render a judgment without substantial consideration of a case is submitted in violation of the requirements stipulated by the Criminal Procedure Code of Georgia, it shall return the case to the prosecution. The court before returning the case to the prosecutor offers the parties to change the terms of the agreement. If the changed terms do not satisfy the court, then it shall return the case to the prosecution. (Article 213 of the Criminal Procedure Code of Georgia)
Fine (penalty)
Before 1 September 1990, all traffic violations were punished via the criminal law. The suspects were first offered a sort of plea bargain. This mostly contains a fine. If the suspect didn't pay the fine of this plea bargain, the public prosecutor had to open a criminal case, otherwise he wasn't authorized to collect the fine through force. The case had to be withdrawn when the capacity of the courts or the prosecutor's office didn't allow the start of a criminal case for a traffic violation. This was the case very often. This situation led to a negative spiral, because traffic offenders hoped and expected their case to be withdrawn, and didn't pay the plea bargain fine. This led to a growing pressure on the capacity of the courts, which causes more sepots (decisions not to prosecute). This encouraged more offenders not to pay, etc.
Inquisitorial system
In adversarial systems, the defendant may plead "guilty" or "no contest" in exchange for reduced sentences, a practice known as plea bargaining, which is an extremely common practice in the United States. In theory, the defendant must allocute or "voice" his or her crimes in open court, and the judge must believe the defendant is telling the truth about his or her guilt. In an inquisitorial system, a mere confession of guilt would not be regarded as ground for a guilty verdict, and the prosecutor is required to provide evidence supporting a guilty verdict; however, this requirement is not unique to inquisitorial systems, as many or most adversarial systems impose a similar requirement under the name "corpus delicti".
New Prime Inc. v. Oliveira
The Federal Arbitration Act (FAA) of 1925 () allows employers in the United States to include binding arbitration language in their employee contracts that requires employees to agree to use designated arbitration methods to resolve disputes with the company rather than seeking action in the court system. Section 1 of the FAA sets out exemptions for employees involved in 
foreign or interstate commerce activities, leading that "nothing herein contained [within the Statute] shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce."
QRG on Arbitration, Conciliation and Mediation
Conciliation is a less formal form of arbitration. This process does not require an existence of any prior agreement. Any party can request the other party to appoint a conciliator. One conciliator is preferred but two or three are also allowed. In case of multiple conciliators, all must act jointly. If a party rejects an offer to conciliate, there can be no conciliation.
English contract law
Generally speaking, all parties to a contract must precisely perform their obligations or there is a breach of contract and, at the least, damages can be claimed. However, as a starting point, to claim that someone else has breached "their" side of a bargain, one must have at least "substantially performed" their own obligations. 
For example, in "Sumpter v Hedges" a builder performed £333 worth of work, but then abandoned completion of the contract. The Court of Appeal held he could not recover any money for the building left on the land, even though the buyer subsequently used the foundations to complete the job. This rule provides a powerful remedy in home construction cases to a customer. So in "Bolton v Mahadeva" Mr Bolton installed a £560 heating system in Mahadeva's house. However, it leaked and would cost £174 to correct (i.e. 31% of the price). Mahadeva did not pay at all, and the Court of Appeal held this was lawful because the performance was so defective that there could not be said to be any substantial performance. However where an obligation in a contract is "substantially performed", the full sum must be paid, only then deducting an amount to reflect the breach. So in "Hoenig v Isaacs" Denning LJ held a builder who installed a bookcase poorly, with a price of £750 but costing only £55 to correct (i.e. 7.3% of the price), had to be paid minus the cost of correction. If a contract's obligations are construed as consisting of an "entire obligation", performance of it all will be a condition precedent (a requirement before) to performance from the other side falling due, and allowing a breach of contract claim.
Project Labor Agreement
A Project Labor Agreement (PLA), also known as a Community Workforce Agreement, is a pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project. Before any workers are hired on the project, construction unions have bargaining rights to determine the wage rates and benefits of all employees working on the particular project and to agree to the provisions of the agreement. The terms of the agreement apply to all contractors and subcontractors who successfully bid on the project, and supersedes any existing collective bargaining agreements. PLAs are used on both public and private projects, and their specific provisions may be tailored by the signatory parties to meet the needs of a particular project. The agreement may include provisions to prevent any strikes, lockouts, or other work stoppages for the length of the project. PLAs typically require that employees hired for the project are referred through union hiring halls, that nonunion workers pay union dues for the length of the project, and that the contractor follow union rules on pensions, work conditions and dispute resolution.
Plea bargain
Plea bargaining can present a dilemma to defense attorneys, in that they must choose between vigorously seeking a good deal for their present client, or maintaining a good relationship with the prosecutor for the sake of helping future clients. However, defense attorneys are required by the ethics of the bar to defend the present client's interests over the interests of others. Violation of this rule may result in disciplinary sanctions being imposed against the defense attorney by the appropriate state's bar association.
Plea bargain
When the defendant deems that the punishment that would, concretely, be handed down is less than a five-year imprisonment (or that it would just be a fine), the defendant may request to plea bargain with the prosecutor. The defendant is rewarded with a reduction on the sentence and has other advantages (such as that the defendant does not pay the fees on the proceeding). The defendant must accept the penalty for the charges (even if the plea-bargained sentence has some particular matters in further compensation proceedings), no matter how serious the charges are.
Plea bargain
In Canada, the courts always have the final say with regard to sentencing. Nevertheless, plea bargaining has become an accepted part of the criminal justice system although judges and Crown attorneys are often reluctant to refer to it as such. In most Canadian criminal proceedings, the Crown has the ability to recommend a lighter sentence than it would seek following a guilty verdict in exchange for a guilty plea.
Lafler v. Cooper
Cooper argued that even though there is no right to a plea agreement itself, criminal defendants have the right to be assisted by competent counsel "during" plea negotiations. Accordingly, Cooper argued that criminal defendants can be prejudiced by ineffective assistance of counsel during plea negotiations, even if the subsequent trial was fair. Cooper also pointed out that every federal court of appeals to have considered the issue, and 25 of the 27 states to have considered the issue, agreed that counsel's deficient performance during plea negotiations can constitute "Strickland" prejudice.
Alford plea
The "Dictionary of Politics: Selected American and Foreign Political and Legal Terms" defines the term "Alford plea" as: "A plea under which a defendant may choose to plead guilty, not because of an admission to the crime, but because the prosecutor has sufficient evidence to place a charge and to obtain conviction in court. The plea is commonly used in local and state courts in the United States." According to "University of Richmond Law Review", "When offering an Alford plea, a defendant asserts his innocence but admits that sufficient evidence exists to convict him of the offense." "A Guide to Military Criminal Law" notes that under the Alford plea, "the defendant concedes that the prosecution has enough evidence to convict, but the defendant still refuses to admit guilt." The book "Plea Bargaining's Triumph: A History of Plea Bargaining in America" published by Stanford University Press defines the plea as one in "which the defendant adheres to his/her claim of innocence even while allowing that the government has enough evidence to prove his/her guilt beyond a reasonable doubt". According to the book "Gender, Crime, and Punishment" published by Yale University Press, "Under the Alford doctrine, a defendant does not admit guilt but admits that the state has sufficient evidence to find him or her guilty, should the case go to trial." "Webster's New World Law Dictionary" defines Alford plea as: "A guilty plea entered as part of a plea bargain by a criminal defendant who denies committing the crime or who does not actually admit his guilt. In federal courts, such plea may be accepted as long as there is evidence that the defendant is actually guilty."
Plea bargaining in the United States
The shadow-of-trial argument asserts that in the aggregate, plea agreements merely reflect the outcome that would have transpired had the case gone to trial. For example, if the accused faces 10 years and has a 50% chance of losing in court, then an agreement will result in a five-year sentence, less some amount deducted for saving the government the cost of trial. Theoretically, the shadow-of-trial should work even better in criminal cases than in civil cases, because civil judgments are discretionary, while criminal judgments are often regulated by mandatory minima and sentencing guidelines, making sentences more predictable.
Enterprise bargaining agreement
Employers, employees and their bargaining representatives are involved in the process of bargaining for a proposed enterprise agreement. An employer must notify their employees of the right to be represented by a bargaining representative during the bargaining of an enterprise agreement (other than a greenfields agreement) as soon as possible, and not later than 14 days after the notification time for the agreement (usually the start of bargaining). The notification should be given to each current employee who will be covered by the enterprise agreement.
Plea bargain
In 2007, Sakharam Bandekar case became the first such case in India where the accused Sakharam Bandekar requested lesser punishment in return for confessing to his crime (using plea bargaining). However, the court rejected his plea and accepted CBI's argument that the accused was facing serious charges of corruption. Finally, the court convicted Bandekar and sentenced him to 3 years imprisonment.
Adversarial system
Proponents of inquisitorial justice dispute these points. They point out that many cases in adversarial systems, and most cases in the United States, are actually resolved by plea bargain or settlement. Plea bargain as a system does not exist in an inquisitorial system. Many legal cases in adversarial systems, and most in the United States, do not go to trial, which may lead to injustice when the defendant has an unskilled or overworked attorney, which is likely to be the case when the defendant is poor. In addition, proponents of inquisitorial systems argue that the plea bargain system causes the participants in the system to act in perverse ways, in that it encourages prosecutors to bring charges far in excess of what is warranted and defendants to plead guilty even when they believe that they are not.
Plea bargain
In some common law jurisdictions, such as Singapore and the Australian state of Victoria, plea bargaining is practiced only to the extent that the prosecution and the defense can agree that the defendant will plead guilty to some charges and/or to reduced charges in exchange for the prosecutor withdrawing the remaining and/or more serious charges. In New South Wales, a 10-25% discount on the sentence is customarily given in exchange for an early guilty plea, but this concession is expected to be granted by the judge as a way of recognizing the utilitarian value of an early guilty plea to the justice system - it is never negotiated with a prosecutor. The courts in these jurisdictions have made it plain that they will always decide what the appropriate penalty is to be. No bargaining takes place between the prosecution and the defence over criminal penalties.
Plea bargain
Sometimes, the prosecutor agrees to reduce a charge or to drop some of multiple charges in exchange for the defendant's acceptance of the penalty. Defendant, in the request, could argue with the penalty and aggravating and extenuating circumstancing with the prosecutor, that can accept or refuse. The request could also be made by the prosecutor. The plea bargaining could be granted if the penalty that could be concretely applied is, after the reduction of one third, inferior to five-year imprisonment (so called "patteggiamento allargato", wide bargaining); When the penalty applied, after the reduction of one third, is inferior of two years imprisonment or is only a fine (so called "patteggiamento ristretto" limited bargaining), the defendant can have other advantages, like sentence suspended and the effacement of the crime if in five year of the sentence, the defendant doesn't commit a similar crime.
Plea bargain
In the request, when it could be applied the conditional suspension of the penalty according to the article 163 and following of Italian penal code, the defendant could subordinate the request to the grant of the suspension; if the judge rejects the suspension, the bargaining is refused. When both the prosecutor and the defendant have come to an agreement, the proposal is submitted to the judge, who can refuse or accept the plea bargaining.
Plea bargain
Following a Supreme Court of Canada ruling that imposes strict time limits on the resolution of criminal cases (eighteen months for cases in provincial court and thirty months for cases in Superior Court), several provinces have initiated and/or intensified measures intended to maximize the number of minor criminal cases resolved by a plea bargain.
Plea bargain
On the other hand, the prosecutor may wish to maintain a high conviction rate and avoid losing high-profile trials; thus, settling a case by plea bargain may further his interests, even if the resulting sentence would not effectively deter crime. As many crimes have very narrow sentencing bands, a prosecutor often has scope to propose whatever degree of "discounted" charges, or substitution of misdemeanor rather than felony charges, to whatever extent they believe would incentivise a defendant to make a guilty plea and accept a speedy conviction, regardless of actual guilt.
Shearson/American Express Inc. v. McMahon
Turning to the plaintiffs' arguments, he wrote, "these contentions are frivolous, and flaunt the agreement, the Arbitration Act, and the mandate of the Supreme Court." The 1985 notice was proper because according to the agreement the requirement to arbitrate was triggered by the mere occurrence of a controversy, not any formal proceedings. "The pendency of an action does not stay arbitration, but instead forces a demand and application by defendants to compel arbitration and "to stay the trial" pending arbitration ... Plaintiffs' imposition of such a condition without an order staying the arbitration and preserving the exercise of the right to select an arbitrator, was simply a unilateral, futile, and legally unjustifiable attempt to change the terms of the agreement."
English land law
Money lenders have extensive rights from common law and statute. A mortgagee's first right is to repayment of the debt, but if the borrower's circumstances mean this is impossible, a process of taking possession of the mortgaged property and selling it usually begins. Almost every step, however, is mediated through court. The Administration of Justice Act 1970 section 36 says that the court may adjourn proceedings if the "mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage", and the Consumer Credit Act 1974 sections 129–130 does the same for second mortgages. In an anomalous case, "Ropaigealach v Barclays Bank plc" a bank had auctioned off a (second) house the owning a family was away. Clarke LJ felt unable to apply the AJA 1970, because properly construed, it was only able to halt proceedings when legal proceedings had in fact been launched, and here there were none. In a more borrower-friendly decision, "Cheltenham & Gloucester Building Society v Norgan" Waite LJ gave guidance that in ordering a plan for repayment, a judge should give "the period most favourable to the mortgagor at the outset", so that repeated applications to court on continuing defaults could be avoided, and so that "the mortgagee can be heard with justice to say that the mortgagor has had his chance". When it comes to a sale, Law of Property Act 1925 sections 101 and 103 require that the provision for sale must have been in the mortgage deed, that three months notice and space must be given. Section 88 confirms that a buyer after a sale receives an unencumbered title. In the sale process itself, there is a duty of care. In "Cuckmere Brick Co v Mutual Finance" Mutual Finance auctioned Cuckmere Brick Co's property after it had defaulted on a loan, but failed to advertise that the property had secured planning permission for building more flats. Salmon LJ emphasised that because the borrower will still be liable for sums on a loan if a house is undersold, because the "mortgagor is vitally affected by the result of the sale", an obligation is owed to get "the true market value." Moreover, a higher duty of scrutiny will be imposed if a mortgagee sells to a related party. In "Tse Kwong Lam v Wong Chit Sen" Mr Wong sold property taken from Mr Tse to his wife, after not advertising the auction. The Privy Council advised that while delay in the claim meant the sale should not be set aside, damages could be awarded because of the significant conflict of interest. Lord Templeman emphasised that "a heavy onus lies on the mortgagee to show that in all respects he acted fairly" so the transaction is perfectly fair and equal.
Federal Arbitration Act
Once an award is entered by an arbitrator or arbitration panel, it must be "confirmed" in a court of law; and once confirmed, the award is reduced to an enforceable judgment, which may be enforced by the winning party in court, like any other judgment. Under the FAA, an award must be confirmed within one year, and any objection to an award must be challenged by the losing party within three months. An arbitration agreement may be entered "prospectively" (ie., in advance of any actual dispute), or may be entered into by the disputing parties once a dispute has arisen.
New York City Criminal Court
Plea bargain negotiations take place in the AP Parts prior to the case being in a trial-ready posture, and depending upon caseloads, the judges in the AP Parts may conduct pre-trial and felony motion hearings. The most common pre-trial evidence suppression hearings are "Mapp" (warrantless searches and probable cause), "Dunaway" (confessions), "Huntley" (Miranda rights), "Wade" (identification evidence like lineups), and "Johnson" ("Terry" stops) hearings. Trial Parts also conduct pre-trial motion hearings, including "Sandoval" (witness impeachment) and "Molineux" (admissibility of prior uncharged crimes) hearings. Once pretrial hearings are completed, the case is considered ready for trial and will usually be transferred to a courtroom that specializes in handling trials.
Pendulum arbitration
Pendulum arbitration, otherwise known as final offer arbitration (or "FOA"), is a type of interest arbitration in which the arbitrator chooses one of the parties' proposals on each (or perhaps all) disputed issues. For example, in the case of labor collective bargaining, a trade union may demand a wage increase of 7% and the management may offer 3%. The arbitrator's decision has to choose between awarding a 3% or a 7% increase. This procedure is opposed to conventional interest arbitration, in which the parties present evidence and the arbitrator acts as fact-finder and crafts an award. In disputes over labor contracts, this dispute resolution procedure is known to be a common type of contract arbitration. Perhaps the most well-known instance is salary arbitration in Major League Baseball, where a certain class of players may elect to arbitrate their salary instead of accepting their team's salary offer. Final-offer arbitration is widely used to determine public union contracts in the United States, either as a substitute for collective bargaining or as a mechanism to determine the contract when bargaining has failed.
Plea bargain
[P]lea bargains are just as likely in strong and weak cases. Prosecutors only need to adjust the offer to the probability of conviction in order to reach an agreement. Thus, weaker cases result in more lenient plea bargains, and stronger ones in relative harshness, but both result in an agreement. [... W]hen the case is weak, the parties must rely on charge bargaining ... But [charge bargaining] is hardly an obstacle. Charge bargaining in weak cases is not the exception; it is the norm all around the country. Thus, even if the evidence against innocent defendants is, on average, weaker, the likelihood of plea bargains is not dependent on guilt.
Plea
In the U.S. federal system, the court must also satisfy itself that there is a factual basis for the guilty plea. However, this safeguard may not be very effective, because the parties, having reached a plea agreement, may be reluctant to reveal any information that could disturb the agreement. When a plea agreement has been made, the judge's factual basis inquiry is usually perfunctory, and the standard for finding that the plea is factually based is very low.
Plea bargain
In the case of hybrid offences in England and Wales, the decision whether to deal with a case in Magistrates Court or Crown Court is not made by magistrates until after a plea has been entered. A defendant is thus unable to plead guilty in exchange for having a case dealt with in Magistrates' Court (which has lesser sentencing powers).
Plea bargain
John H. Langbein argues that the modern American system of plea bargaining is comparable to the medieval European system of torture:
There is, of course, a difference between having your limbs crushed if you refuse to confess, or suffering some extra years of imprisonment if you refuse to confess, but the difference is of degree, not kind. Plea bargaining, like torture, is coercive. Like the medieval Europeans, the Americans are now operating a procedural system that engages in condemnation without adjudication.
Traffic ticket
Although each judge, state, county or municipality handle contested hearings a little differently, the court may make provisions for the prosecutor to achieve a deal with the motorist, often in the form of a plea bargain that may reduce the impact from that which would be incurred from pleading guilty without attending court. If no agreement is reached, and the prosecutor feels it is worth his time to charge the motorist, both motorist and officer, or their respective representatives, formally attempt to prove their case before the judge, who then decides the matter.
Plea bargain
Italy has a form of bargaining, popularly known as "patteggiamento" but that has a technical name of penalty application under request of the parts. In fact, the bargaining is not about the charges, but about the penalty applied in sentence, reduced up to one third.
Plea bargaining in the United States
Several features of the American justice system tend to promote plea bargaining. The adversarial nature of the system puts judges in a passive role, in which they are completely dependent upon the parties to develop the factual record and cannot independently discover information with which to assess the strength of the case against the defendant. The parties thus can control the outcome of the case by exercising their rights or bargaining them away. The lack of compulsory prosecution also gives prosecutors greater discretion. And the inability of crime victims to mount a private prosecution and their limited ability to influence plea agreements also tends to encourage plea bargaining. Prosecutors have been described as monopsonists.
Arbitration clause
In the United States, the federal government has expressed a policy of support of arbitration clauses, because they reduce the burden on court systems to resolve disputes. This support is found in the Federal Arbitration Act, which permits compulsory and binding arbitration, under which parties give up the right to appeal an arbitrator's decision to a court. In "Prima Paint Corp. v. Flood & Conklin Mfg. Co.", the U.S. Supreme Court established the "separability principle", under which enforceability of a contract must be challenged in arbitration before any court action, unless the arbitration clause itself has been challenged.
Plea bargain
A plea bargain allows both parties to avoid a lengthy criminal trial and may allow criminal defendants to avoid the risk of conviction at trial on a more serious charge. For example, in the U.S. legal system, a criminal defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry a custodial sentence.
Plea bargaining in the United States
Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory has been used to analyze the plea bargaining decision.
Permanent Court of Arbitration
Parties to arbitration have to pay the expenses of the arbitral tribunal set up to hear the case, including the salary of the arbitrators, registry and administrative functions, but not including overhead of the organization). The costs of arbitration vary from case to case and discussions may be held between the PCA and the parties over fee arrangements.
Illusory promise
Many judges would consider the "bargaining for a percentage of the proceeds" example above an enforceable contract, even without an implied-in-fact or implied-in-law good faith term. They would view the opportunity to enter into a business relationship to itself be acceptable consideration. Put differently, the mere possibility that the promisor would do business is a valuable product of the bargain even if he does not do anything. Of course, if the promisor entered into the relationship purely with the intent of fraudulently harming the promisee, he could be cited for fraud or bad faith principles that apply to all contracts.
Arbitration in the United States
Typically, the validity of an arbitration clause is decided by a court rather than an arbitrator. However, if the validity of the entire arbitration agreement is in dispute, then the issue may remain subject to arbitration. For example, in "Rent-A-Center, West, Inc. v. Jackson", the Supreme Court of the United States held that "under the FAA, where an agreement to arbitrate includes an agreement that the arbitrator will determine the enforceability of the agreement, if a party challenges specifically the enforceability of that particular agreement, the district court considers the challenge, but if a party challenges the enforceability of the agreement as a whole, the challenge is for the arbitrator."
Courtroom Workgroup
The concept of a courtroom workgroup is associated with plea bargaining. The courtroom workgroup shows remarkable explanatory power in overburdened courts dealing with large caseloads. The courtroom workgroup model is best suited to explain jurisdictions where defense attorneys are more or less permanently assigned, but even occasionally appointed lawyers can participate in these practices. While many of the higher level prosecutions still follow the adversarial model, there is evidence that lower-level proceedings follow the courtroom workgroup model. Boland, Brady, Tyson, & Bassler (1983) indicate that approximately 90 percent of criminal cases are settled by plea bargain. This figure appears to be stable over the last twenty years (Rainville & Reaves, 2003). Some collaborative efforts on the part of the courtroom workgroup simply must be present to facilitate this high percentage of pleas.
Plea bargain
In Japan, plea bargaining was previously forbidden by law, although sources reported that prosecutors illegally offered defendants plea bargains in exchange for their confessions.
Settlement (litigation)
In criminal matters, the closest parallel to a settlement is a plea bargain, although this differs in several important respects, particularly the ability of the presiding judge to reject the terms of a settlement.
Plea colloquy
Pursuant to the Sixth Amendment to the U.S. Constitution, a criminal defendant has the right to be represented by an attorney during a plea colloquy; failure of the state to provide an attorney to an indigent defendant during such proceedings is grounds for an appeal. It is possible - but very difficult - for a defendant who "is" so represented to have a plea thrown out due to ineffective assistance of counsel. The defendant must make a positive showing that but for the erroneous advice of counsel, he would not have chosen to plead guilty.
Plea bargain
The main principle of the plea bargaining is that it must be based on the free will of the defendant, equality of the parties and advanced protection of the rights of the defendant:
a) In order to avoid fraud of the defendant or insufficient consideration of his/her interests, legislation foresees obligatory participation of the defense council; (Article 210 of the Criminal Procedure Code of Georgia)
b) The defendant has the right to reject the plea agreement on any stage of the criminal proceedings before the court renders the judgment. (Article 213 of the Criminal Procedure Code of Georgia)
c) In case of refusal, it is prohibited to use information provided by the defendant under the plea agreement against him in the future. (Article 214 of the Criminal Procedure Code of Georgia)
d) The defendant has the right to appeal the judgment rendered consequent to the plea agreement if the plea agreement was concluded by deception, coercion, violence, threat, or violence. (Article 215 of the Criminal Procedure Code of Georgia)
Campaign Against Arms Trade
The campaign and The Corner House mounted a legal challenge to the decision by the SFO to accept the plea bargain on the grounds that they failed properly to apply prosecution guidance, including its own guidance. In particular, the plea agreement reached failed to reflect the seriousness and extent of BAE's alleged offending, which included corruption and bribery, and to provide the court with adequate sentencing powers. In response, on 1 March, the High Court granted an injunction prohibiting the Director of the SFO from taking further steps in its plea bargain settlement. However, the judicial review request was rejected on 24 March.
Plea bargain
Plea bargaining is a significant part of the criminal justice system in the United States; the vast majority (roughly 90%) of criminal cases in the United States are settled by plea bargain rather than by a jury trial. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. The Federal Sentencing Guidelines are followed in federal cases and have been created to ensure a standard of uniformity in all cases decided in the federal courts. A two- or three-level offense level reduction is usually available for those who accept responsibility by not holding the prosecution to the burden of proving its case; this usually amounts to a complete sentence reduction had they gone to trial and lost.
Settlement (litigation)
The contract is based upon the bargain that a party forgoes its ability to sue (if it has not sued already), or to continue with the claim (if the plaintiff has sued), in return for the certainty written into the settlement. The courts will enforce the settlement: if it is breached, the party in default could be sued for breach of that contract. In some jurisdictions, the party in default could also face the original action being restored.
Pattern bargaining
In the United States, pattern bargaining was pioneered by unions such as the United Auto Workers and the Teamsters. The first step of the bargaining process is the identification of a target employer that is most likely to agree to a favourable employment contract. For the selected company, this provides an opportunity to influence the contract for the industry, while the downside is the risk of a labour disruption if negotiations stall or fail. Once this contract has been successfully negotiated and ratified by the unionized workers, the union declares it a "pattern agreement" and presents it to the other employers as a take-it-or-leave-it offer.
Plea bargain
Under Article 217 of the Criminal procedure Code of Georgia, the prosecutor is obliged to consult with the victim prior to concluding the plea agreement and inform him/her about this. In addition, under the Guidelines of the Prosecution Service of Georgia, the prosecutor is obliged to take into consideration the interests of the victim and as a rule conclude the plea agreement after the damage is compensated.
Pleading
In the United States, a "complaint" is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief and sometimes a statement of damages claimed (an ad quod damnum clause). In some situations, a complaint is called a "petition", in which case the party filing it is called the petitioner and the other party is the respondent. In equity, sometimes called chancery, the initial pleading may be called either a "petition" or a "bill of complaint in chancery".
Arbitration case law in the United States
Arbitration in the United States is governed by the Federal Arbitration Act of 1925 (FAA, codified at 9 U.S.C. 1 et seq.), which requires courts to compel parties who agree to arbitration to participate in binding arbitration, the decision from which is binding upon the parties. Since the passage of the FAA, both state and federal courts have examined arbitration clauses, as well as other statutes involving arbitration clauses, for validity and enforceability.
United States Arbitration Association
Clarification related to whether federal or state law takes precedence in a given arbitration matter is addressed in the USADR Rules of Procedure, for the benefit of the parties. 
"Arbitration is a creature of contract. Contractual provisions may be extremely vague or very specific about governing law (federal or state), rules of procedure, arbitrator appointment process, and identifying which court of jurisdiction for enforcement. It is critical to have a structure for judicial enforcement; therefore USADR utilizes the following guidelines when parties submit their dispute for arbitration.
a) Contract Silent on Governing Law: The arbitration will be conducted under Federal Arbitration Act (FAA) unless parties agree otherwise. Federal District Court has jurisdiction for arbitration conducted under FAA. The FAA is silent on the issue of punitive damages.
b) Contract Names State Law: The arbitration will be conducted under the state law specified, unless parties agree otherwise. The state district court has jurisdiction for arbitration conducted under its arbitration act. Punitive damages vary according to state.
c) Contract is Silent on Rules of Procedure: The arbitration will be conducted utilizing USADR’s Rules of Procedure. Where USADR's rules conflict with governing law, the governing law will prevail.
d) Stated Rules of Procedure: USADR may administer an arbitration action utilizing stated rules in the arbitration clause with the agreement of the parties. The parties shall indicate their agreement on the appropriate submission agreement according to the claim amount. USADR shall appoint the arbitrator for small claims or mid-size claims or follow the arbitrator selection process identified in Rule A-9; the appointed arbitrator shall then utilize the specified rules for all subsequent matters. Where the rules of procedure conflict with governing law, the governing law will prevail."
Plea bargain
In 2013 Brazil passed a law allowing plea bargains, which have been used in the political corruption trials taking place since then.
American Arbitration Association
Many contracts include an arbitration clause naming the AAA as the organization that will administer arbitration between the parties. The AAA does not itself arbitrate disputes, but provides administrative support to arbitrations before a single arbitrator or a panel of three arbitrators. The arbitrators are chosen in accordance with the parties' agreement or, if the parties do not agree otherwise, in accordance with the AAA rules. Under its rules, the AAA may appoint an arbitrator in some circumstances, for example, where the parties cannot agree on an arbitrator or a party fails to exercise its right to appoint an arbitrator.
Plea bargain
Certain aspects of the American justice system serve to promote plea bargaining. For example, the adversarial nature of the U.S. criminal justice system puts judges in a passive role, in which they have no independent access to information with which to assess the strength of the case against the defendant. The prosecutor and defense may thus control the outcome of a case through plea bargaining. The court must approve a plea bargain as being within the interests of justice.
Plea bargain
Like other common law jurisdictions, the Crown can also agree to withdraw some charges against the defendant in exchange for a guilty plea. This has become standard procedure for certain offences such as impaired driving. Note that in the case of hybrid offences, the Crown must make a binding decision as to whether to proceed summarily or by indictment prior to the defendant making his or her plea. If the Crown elects to proceed summarily and the defendant then pleads not guilty, the Crown cannot change its election. Therefore, the Crown is not in a position to offer to proceed summarily in exchange for a guilty plea.
Plea bargain
Plea bargaining was introduced in Japan in June 2018. The first case of plea bargaining under this system, in July 2018, involved allegations of bribery by Mitsubishi Hitachi Power Systems in Thailand. The second case was a November 2018 deal to obtain evidence of accounting and securities law violations against Nissan executives Carlos Ghosn and Greg Kelly.
Fair Work Act 2009
The "Fair Work Act 2009" stipulates that employers must take all reasonable steps to notify employees of their right to a bargaining agent not later than 14 days after the notification time of the agreement. The notification time is the time when the employer agrees to bargain or initiates bargaining, when the FWC determines that there is majority support among employees for collective bargaining, or when a scope order (an FWC-issued order to resolve questions about the employees covered by an agreement) comes into operation. The notice must specify that the employee may appoint a bargaining representative to represent the employee in bargaining for the agreement and in a matter before FWC that relates to bargaining for the agreement. An employee organization cannot be a bargaining representative of an employee unless the organization is entitled to represent the industrial interests of the employee. A person may revoke their bargaining agent in writing.
Bargaining agents are described in Division 3 of the Fair Work Act 2009, and can be the employer, a person the employer appoints in writing, the employee, or a person an employee appoints in writing.
List of people who entered an Alford plea
When a defendant indicates an intention to plead guilty by Alford plea, the judge asks two questions: "Do you now consider it to be in your best interest to plead guilty?" and "Do you understand that upon your 'Alford plea' you will be treated as being guilty whether or not you admit that you are in fact guilty?" Prosecutors and defense lawyers characterize Alford pleas as a required method of lessening pressure of the nature of the justice process. Both parties get to maneuver around not knowing what the outcome could be at trial, and are able to come to a resolution. The Alford plea does not itself affect the sentencing process, and the convicted individual is sentenced just as if he had entered a normal guilty plea. The defendant may be hurt at the sentencing process by having used an Alford plea, as the judge may see this as a sign that the defendant has not accepted responsibility for his actions. Duke University law professor Robert P. Mosteller commented on this possible effect at sentencing, "They get you more harm than good." Orange County, North Carolina District Attorney Jim Woodall said that the frequency of Alford pleas is higher with criminal cases involving a charge of a sexual offense, as the defendant does not wish to admit to their family and the public that they were responsible for the crime. Psychologist Bob Carbo noted that sexual offenders undergoing treatment for their actions after being ordered to so under terms of their Alford plea cause problems because the first step in therapy is to take responsibility for committing the crime. "We can't help this person if they're not willing to admit they did something", said Carbo.
Plea bargaining in the United States
Plea bargains are so common in the Superior Courts of California that the Judicial Council of California has published an optional seven-page form (containing all mandatory advisements required by federal and state law) to help prosecutors and defense attorneys reduce such bargains into written plea agreements.
Bargaining
Bargaining games refer to situations where two or more players must reach agreement regarding how to distribute an object or monetary amount. Each player prefers to reach an agreement in these games, rather than abstain from doing so. However, each prefers that the agreement favour their interests. Examples of such situations include the bargaining involved in a labour union and the directors of a company negotiating wage increases, the dispute between two communities about the distribution of a common territory, or the conditions under which two countries agree on nuclear disarmament. Analyzing these kinds of problems looks for a solution that specifies which component in dispute corresponds to each party involved.
Players in a bargaining problem can bargain for the objective as a whole at a precise moment in time. The problem can also be divided so that parts of the whole objective become subject to bargaining during different stages.
Plea colloquy
A plea colloquy, in United States criminal procedure, is a conversation between a judge and a criminal defendant who has been sworn under oath, which must occur when the defendant enters a guilty plea in court in order for the plea to be valid. The United States Supreme Court has crafted a doctrine which requires the court to engage in a specific line of inquiry. Because a guilty plea must be made intelligently, knowingly, and voluntarily, the court must advise the defendant of the following things:
The court must ask the defendant if he understands each of these points, and must receive a voluntary affirmative response. Many courts use a script of the questions which the judge will ask the defendant and the defense attorney in a specific order. Failure by the court to advise the defendant of any of the above points will supply the grounds for a collateral attack on the plea; if such an attack is successful, the guilty plea will be withdrawn, and the defendant will be given the opportunity to enter a new plea. The court can accept and bind the defendant to a guilty plea, even if the defendant insists that he is innocent, and merely taking the plea to avoid conviction by a jury.
Contract
Less common are unilateral contracts in which one party makes a promise, but the other side does not promise anything. In these cases, those accepting the offer are not required to communicate their acceptance to the offeror. In a reward contract, for example, a person who has lost a dog could promise a reward if the dog is found, through publication or orally. The payment could be additionally conditioned on the dog being returned alive. Those who learn of the reward are not required to search for the dog, but if someone finds the dog and delivers it, the promisor is required to pay. In the similar case of advertisements of deals or bargains, a general rule is that these are not contractual offers but merely an "invitation to treat" (or bargain), but the applicability of this rule is disputed and contains various exceptions. The High Court of Australia stated that the term unilateral contract is "unscientific and misleading".
Consumer arbitration
According to Ramona L. Lampley, the first generation of consumer arbitration clauses was characterized by drafters including not only class action waivers but also damages limitations, bars on recovery of attorney fees, requirements that consumers pay half or all of the arbitration fees, confidentiality requirements on the parties to an arbitration, or allowing the business to unilaterally select the arbitrator, all of which were found unenforceable by some court. In August 1999, "Consumer Reports" cited a then-superseded arbitration clause by Gateway where a consumer would have to pay $2,000 to file a claim, would have to mail the claim to a Paris address, and would have to travel to Chicago for arbitration hearings. However, in 2001, Christopher R. Drahozal wrote that "unfair arbitration clauses" are less prevalent than thought, and that even unfair terms could be beneficial to the contracting parties. In 2001, Stephen Ware suggested that requiring consumer protections in arbitration (requiring the availability of class proceedings, applying a universal cap on consumer fees without a case-by-case determination of whether the consumer can afford those fees, "requiring substantial discovery", or requiring businesses and consumers to arbitrate the same types of claims) would increase the costs of dispute resolution for the business, which would raise prices.
Bargaining
The anchor price is the first offer made during the bargaining procedure. The first offer sets the first conditions for the pricing, thereby 'anchoring' the resulting outcome of the transaction.
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Consumer arbitration
Both the American Arbitration Association (AAA) and JAMS have criteria that a pre-dispute consumer arbitration agreement must satisfy as a condition of the organization agreeing to administer the arbitration. Examples include the right for the consumer to be represented by an attorney, the right for a consumer to pursue a claim in small claims court, caps on the arbitration fees charged to a consumer, requirements that arbitration hearings take place at a location convenient for the consumer, and the right to demand a written explanation of the arbitrator's award. The AAA adopted its Consumer Due Process Protocol in 1998. Timothy Jost wrote that consumer advocates "voiced hope other ADR providers would adopt" the protocol and that the AARP supported it.
Plea bargaining in the United States
The United States Supreme Court has recognized plea bargaining as both an essential and desirable part of the criminal justice system. The benefits of plea-bargaining are said to be obvious: the relief of court congestion, alleviation of the risks and uncertainties of trial, and its information gathering value.
Pleading
In its final form in the 19th century, common law pleading was terribly complex and slow by modern standards. The parties would normally go through several rounds of pleadings before the parties were deemed to have clearly stated their controversy, so that the case was "at issue" and could proceed to trial. A case would begin with a complaint in which the plaintiff alleged the facts entitling him to relief, then the defendant would file any one of a variety of pleas as an answer, followed by a replication from the plaintiff, a rejoinder from the defendant, a surrejoinder from the plaintiff, a rebutter from the defendant, and a surrebutter from the plaintiff. At each stage, a party could file a demurrer to the other's pleading (essentially a request that the court immediately rule on whether the pleading was legally adequate before they had to file a pleading in response) or simply file another pleading in response.
United States Arbitration Association
Business and commercial contracts often include arbitration provisions. Mandatory arbitration clauses have, at times, been the target of news reports identifying their potential abuses and also the subject of proposed legislation Arbitration in the United States (section Arbitration Fairness Act). When an arbitration provision is agreed to contractually between the parties, judicial relief (filing in a court of law) is unavailable as a remedy for disputes. United States Arbitration Association provides the administrative infrastructure for small to mid-sized claims to be decided before a single arbitrator for a small standardized fee, with the delivery of a simple award. In part, this addresses the need to contain costs, as a panel of three arbitrators triples the cost of the arbitrator's hourly rate. The arbitrator is either appointed according to USADR rules, or selected in accordance with the parties' agreement. Under its rules, USADR may appoint an arbitrator in some circumstances, for example, in lower dollar claims where the parties have not specified a process for arbitrator selection.