Introduction

In her contribution, Nicole Kornet focuses on what she defines as normative frameworks that shape the business relation and their influence on dispute resolution. It is the normative frameworks, she proceeds, that should be guiding in dispute resolution and, depending on whether the nature of the dispute-solving body is mediation or adjudication, the framework should be given different weight. The normative frameworks that Kornet is interested in are the legal contract that binds the contracting parties and creates the legal rights and obligations that govern their relation, the social relation between two businessmen that is strongly influenced by social expectations within the business community and, finally, the economic rules of market exchange that shape the expectations related to the exchange of a good or service. In that respect, Kornet firmly embeds her contribution within the tradition in contract theory that focuses on contracts as consisting of different ‘points of reference’, ‘normative systems’ or ‘contracting worlds’. One can also view her contribution as being related to the recent research on ‘contract governance’ in which one aspect is described as being about ‘the analysis and structure of legal and extra-legal institutions and factors which constitute the framework for private transactions’. While the analysis of the normative frameworks seems thus to be firmly embedded in what has been already revealed by (sociological and economic strands in) contract research, a thought-provoking novelty of her contribution relates to the endeavour of instrumentalising the insights of this strand of research to an explicit normative undertaking in relation to the appropriate dispute resolution forum and the way it is organised. She argues that these frameworks should influence the way disputes on contracts are solved and, furthermore, that their relevance should be different depending on the character of the dispute solving institution. To her, in mediation the legal framework should move to the background with a focus on social and economic norms whereas adjudication should – due to the need for certainty – be more strongly guided by legal considerations with a significantly lower weight given to the more ambiguous economic and social norms. By emphasising the importance of party choice as to the appropriate forum for solving their disputes, Kornet also inherently promotes the idea that the preference for a specific normative framework to govern a dispute is a matter of what the contracting parties choose.