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Journal articles on the topic 'Amicable dispute resolution'
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1
Ubilava, Ana. "Amicable Settlements in Investor-State Disputes: Empirical Analysis of Patterns and Perceived Problems." Journal of World Investment & Trade 21, no. 4 (August 10, 2020): 528–57. http://dx.doi.org/10.1163/22119000-12340183.
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Abstract This article empirically analyses investor-State arbitration cases that settle amicably after the arbitration has commenced but before the final award is rendered. The study investigates whether, and to what extent, some common criticisms of amicable settlements are evident in practice. It examines four questions that correspond to the major critiques of amicable settlements in investor-State dispute resolution: (1) Are certain types of investor-State disputes unsuitable to be settled amicably? (2) Do amicable settlements impede transparency? (3) Do amicable settlements pay less compared to when investors win? (4) Is the non-enforceability of settlement agreements a problem in practice? The findings suggest that in practice, not all of these purported problematic aspects of dispute resolution mechanisms that result in amicable settlements are as evident as is commonly believed.
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Зенкевич, Адам, and Adam Zygmunt Zienkiewicz. "Amicable Dispute Resolution: a comparison of the Polish and Russian legal perspective." Comparative Research In Law and Politics 2, no. 1 (June 15, 2014): 61–67. http://dx.doi.org/10.12737/5250.
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The article is devoted to Amicable Dispute Resolution (ADR). The essence of amicable means of dispute resolution and the basic forms of ADR (negotiation, mediation, arbitration) are considered. Author treats these forms as the first class justice. In his point of view mediation and the other basic forms of ADR are "the Complementary Forms of Justice". Then there is the detailed analysis focuses on the most important law acts concerning mediation in civil matters in Poland and the Russian Federation. The comparison presents the essential differences between the Polish and the Russian regulations. In conclusion, the five mainly motives of using ADR are noticed. The broader functions of ADR connected not only the classical regulatory, protective or harmonizing issues are shown.The article is devoted to Amicable Dispute Resolution (ADR). The essence of amicable means of dispute resolution and the basic forms of ADR (negotiation, mediation, arbitration) are considered. Author treats these forms as the first class justice. In his point of view mediation and the other basic forms of ADR are "the Complementary Forms of Justice". Then there is the detailed analysis focuses on the most important law acts concerning mediation in civil matters in Poland and the Russian Federation. The comparison presents the essential differences between the Polish and the Russian regulations. In conclusion, the five mainly motives of using ADR are noticed. The broader functions of ADR connected not only the classical regulatory, protective or harmonizing issues are shown.
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Stanojević, Sanja. "Advantages of arbitration over court resolution of employment disputes." Pravo i privreda 59, no. 1 (2021): 19–34. http://dx.doi.org/10.5937/pip2101019s.
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An employment dispute is a dispute between a single worker and the employer, or between a trade union and employer or association of employers. The division of employment disputes is important because it indicates the method of the settlement of labour disputes. According to Serbian legal system, employment disputes can be settled in court or using one of the alternative labour dispute resolution methods (arbitration, conciliation, mediation). Based on the Law on the Amicable Settlement of Employment Disputes, an institution for the peaceful settlement of labour disputes was established - State Agency for Amicable Settlement of Employment Disputes. Arbitration is always voluntary. The Agency is to be in charge only if both parties accept to solve the dispute using arbitration. An individual employment dispute can be solved using arbitration only if that is allowed by work contract or a general employer act. A collective dispute can also be solved using arbitration. If one of the parties does not want to use an alternative method for solving the problem, arbitration cannot be an option. In that case, the only way to protect its rights is in court. The process of settling a dispute in court before a judge is an extremely strict and formal procedure required by law. The court is obligated to determine relevant facts and make a decision based on them. The judgment is binding for the parties and can be forcedly executed. Protection of rights is accomplished when the judgment or arbitration decision is made and executed. The arbitration decision can be voluntarily executed, unlike the judgment that can be forcedly executed. The arbitration decision cannot be forcedly executed and that is the main disadvantage of the arbitration. The arbitration procedure needs to be improved in order to guarantee the protection of rights.
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Hassan, Dr Abida, and Dr Dil Muhammad Malik. "Ancient Dispute Resolution through Informal Processes: ADR." Journal of Law & Social Studies 2, no. 2 (December 31, 2020): 73–77. http://dx.doi.org/10.52279/jlss.02.02.7377.
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The research article discusses the historical study for settlement of disputes under the umbrella of legal systems (formal and informal) prevailing in different civilizations and in various times. This research is briefly discussing the historical aspects of various legal systems in ancient times. This research highlights that human civilizations promoted both methods, but the most popular method was informal dispute resolution (ADR) in all over the world which still is needed and being popular day by day. From study, it has been founded that informal dispute resolution (ADR) has been the choice of people and they preferred to opt this process rather to go for litigation. The research has shown the benefits and importance of settlement of disputes through informal justice system. The study high lights that the system has been working very successfully in ancient times, therefore, this pre-tested process i.e., informal dispute resolution is more sustainable in any form than the formal system because it reflects amicable practices.
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Rasyid, Abdul. "Relevance of Islamic Dispute Resolution Processes in Islamic Banking and Finance." Arab Law Quarterly 27, no. 4 (2013): 343–69. http://dx.doi.org/10.1163/15730255-12341267.
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Abstract In the Islamic legal system, the ways in which disputes are resolved generally fall under two categories. The first category is through litigation, namely in Islamic courts (al-qaḍāʾ or adjudication), and the second is through amicable means such as negotiation, conciliation and compromise (naṣīḥah or sincere advice), mediation (ṣulḥ), arbitration (taḥkīm), mediation along with arbitration (ṣulḥ and taḥkīm), an ombudsman (muḥtasib), expert determination (Mufti’s fatwā, pl. fatāwā), etc. These mechanisms are called alternative dispute resolution (ADR) that refers to a range of dispute resolution processes which are alternative to traditional litigation. Over time, the term ADR is now coming to mean ‘appropriate dispute resolution’ or the most appropriate resolution process in the given circumstances. One of the principal goals of ADR is to provide parties with choices for the effective and efficient resolution of disputes. The above-mentioned dispute resolution processes have different characteristics. This article will discuss only the relevant mechanisms with a view to examine how far they may be suitable to resolve Islamic banking and finance disputes effectively, cheaply and quickly.
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Li, Dezhi, Huiyan Zhang, and Xuehua Fang. "The deficiency of dispute settlement mechanism seen in Chinese construction field from FIDIC." MATEC Web of Conferences 251 (2018): 05022. http://dx.doi.org/10.1051/matecconf/201825105022.
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Since formally introduced the friendly Amicable Settlement mechanism in 1987, FIDIC’ s efforts to promote and improve the alternative dispute settlement mechanism for construction work have been greatly developed. The current laws and regulations in China on alternative dispute resolution mechanisms for construction disputes are not perfect, and the newly revised “Conditions of contract for Construction” (GF2017-0201) lacks operability. It is of great significance to improve the dispute settlement mechanism by drawing on the provisions of article 20 of FIDIC (New Red Book), accumulate international experience and develop “One Belt And One Road”.
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Shah, Sikander Ahmed. "Sir Creek and its Legal and Political Significance and Resolution." Polaris – Journal of Maritime Research 1, no. 1 (December 20, 2019): 1–14. http://dx.doi.org/10.53963/pjmr.2019.005.1.
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The Sir Creek dispute remains a serious hurdle in the way of any meaningful progress on ties between Pakistan and India, but it also has huge potential to be resolved by recourse to international law and bilateral negotiations. In this respect, I will explore certain important historical, legal and political aspects of the Sir Creek dispute in order to betterinform future dialogue between the two states. Among otherthings, I will discuss the status of the law and its application to the dispute. With regards to Sir Creek, other considerations that will be examined include: the impetus for bothstates to adhereto the lawof the sea, the potential of international dispute resolution and the appropriate choice of procedure for settlement, the relevant weightageto be givento historical and special circumstances as well as the significance to relevant international legal proceedings on the dispute. The various factors relevant to the amicable settlement of such river boundary disputes will also be holistically examined.
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Mikos, Daria. "Amicable Methods for Collective Dispute Resolution—Selected Legal Issues." Roczniki Nauk Prawnych 28, no. 1 ENGLISH ONLINE VERSION (October 25, 2019): 41–55. http://dx.doi.org/10.18290/rnp.2018.28.1-3en.
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The article deals with the issue of asserting the rights and interests of all employees who enjoy the representation of trade union organisations in their disputes with the employer. The aim of the article is to give a detailed presentation of issues related to collective labour disputes.
To achieve this aim, the stages at which the rights and interests underlying collective labour disputes are presented in detail. This study employs the dogmatic-legal method. The author carries out an analysis and interpretation of the provisions relating to collective labour disputes in the field of labour law. It was vital to examine the legal norms established by the legislator. A description and systematisation of the applicable legislation was also conducted. Issues relating to the resolution of collective disputes in the workplace are presented theoretically with a detailed discussion of the specific stages.
This presented work is divided into four parts. The first presents the basic notions related to collective labour disputes. The sections that follow present the problems involved in the particular stages of claims enforcement based on employment relationship, i.e. bargaining, mediation, and arbitration. The rules for joining specific stages of resolving the above mentioned disputes were also discussed.
To a large extent, the issues elucidated here bring the reader, and above all entities involved in collective labour conflicts, closer to the methods of asserting their own rights and interests.
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Li, K., and S. O. Cheung. "Are we ready for a rational discussion? The existence of biases in construction dispute negotiation." IOP Conference Series: Materials Science and Engineering 1218, no. 1 (January 1, 2022): 012022. http://dx.doi.org/10.1088/1757-899x/1218/1/012022.
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Abstract Embedded in a network constellation of multi-stakeholders with various professional backgrounds and differing goals, the construction industry is featured with adversarial relationships and inevitable disputes. Therefore, high quality communication and negotiation among the parties are essential in achieving speedy and less costly dispute resolution. As rational evaluation underpins quality negotiation decisions, are construction disputing parties rational as they assumed? Are there any biases that could possibly prohibit them from making prudent judgement? This study seeks to understand the existence and impact of bias in construction dispute negotiation (CDN). The existence of four types of bias in CDN were discussed: preconception, self-affirmation, optimism and interest-oriented. Three categories of de-biasing strategy were also suggested to support the efficient settlement of construction dispute. Vast resources would be saved and amicable relationship among the collaborating parties could be developed when the impact of bias was curbed. Stepping into the digital era, construction dispute resolution professionals should develop the capabilities needed to harness the benefits of technologies for innovative ways of designing a bias-free dispute resolution mechanism.
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ALSCHNER, WOLFGANG. "Amicable Settlements of WTO Disputes: Bilateral Solutions in a Multilateral System." World Trade Review 13, no. 1 (July 10, 2013): 65–102. http://dx.doi.org/10.1017/s1474745613000165.
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AbstractEvery third dispute brought to the WTO and not withdrawn early is settled amicably through a mutually agreed solution (MAS). This includes high-profile and long-standing WTO disputes such as EC–Bananas or Softwood Lumber. By offering a negotiated solution to hard cases, MAS have added stability to the multilateral trading system. MAS, however, also raise concerns. Settlements favour the instant resolution of disputes, but may conflict with third party interests and collective stakes. Where WTO members use their MAS to contract out of WTO law (‘WTO+’/‘WTO–’MAS), the multilateral trading system may be at risk. In addition, new forms of bilateral (interim-)settlements not foreseen in the DSU have recently emerged which currently escape multilateral disciplines. This article assesses how well the DSU balances the competing interests involved in amicable settlements, preserving the contractual flexibility of disputants while safeguarding multilateral interests. Contributing to current DSU reform debates, the article rejects the need for greater MAS enforceability, endorses the strengthening of procedural and substantive safeguards protecting collective stakeholders in settlements, and calls for new DSU disciplines on interim-settlements.
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Oseni, Umar Aimhanosi. "Sharī‘ah court-annexed dispute resolution of three commonwealth countries – a literature review." International Journal of Conflict Management 26, no. 2 (April 13, 2015): 214–38. http://dx.doi.org/10.1108/ijcma-06-2012-0050.
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Purpose – The purpose of this study is to examine the legal framework for court-annexed dispute resolution in courts with Sharī‘ah jurisdiction in Nigeria, Malaysia and Singapore. The major part of the study is dedicated to propose reforms in the administration of justice system in the courts with Sharī‘ah jurisdiction in Nigeria and the relevance of such reforms to the ongoing reforms in the Middle East and North African (MENA) countries. Design/methodology/approach – This is an integrative literature review, which adopts a comparative approach in analyzing the conceptual framework of amicable dispute resolution in the modern world with particular reference to the Sharī‘ah court. Findings – The findings of this research illustrate the adaptability of the practices in Malaysia and Singapore in the courts with Sharī‘ah jurisdiction in Nigeria and the MENA region. Practical implications – An exposition of the dispute resolution processes in Islamic law reveals the relevance of these processes in modern reforms of the administration of justice system. The practical implications of this study include the streamlining of the rules and procedures of modern Sharī‘ah courts in post-revolution Arab countries to allow for court-annexed amicable (alternative) dispute resolution initiatives. Originality/value – As far as it is known, this is the first conceptual study on the court-annexed dispute resolution frameworks of Sharī‘ah courts in three commonwealth jurisdictions.
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Kotsiuruba, A. "CONCILIATION PROCEDURES IN CIVIL PROCEEDINGS IN UKRAINE." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 113 (2020): 28–32. http://dx.doi.org/10.17721/1728-2195/2020/2.113-6.
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The paper examines the legal nature and the regulatory grounds for two judicial conciliation procedures in civil proceedings, namely the amicable agreement and the procedure for dispute settlement with the participation of a judge. Attention is drawn to the urgent need to study judicial conciliation procedures in civil proceedings of Ukraine. Their functional efficiency in the current conditions is assessed, some problematic aspects of the legislative regulation of these institutions are identified and proposals are made to eliminate shortcomings and possible reformatting of these procedures, which would probably contribute to the effective and rapid resolution of civil disputes. It has been repeatedly emphasized that the development and use of conciliation procedures is a matter of the future for the entire justice system of Ukraine. The article determines the need to create a sufficient theoretical basis for the search for new or transformation of existing ways of regulating civil disputes, so that they solve the existing problems of the judicial system of Ukraine and contribute to the formation of "ideal justice". A thorough analysis of the norms of the Civil Procedure Code of Ukraine governing the application of the amicable agreement and the dispute settlement procedure with the participation of a judge is carried out; a number of remarks and proposals to the current civil procedural legislation of Ukraine are expressed. Possible ways of reformatting the legally defined mechanisms for resolving the dispute, which would partially or completely solve the tasks assigned by the legislator to judicial conciliation procedures, are proposed. Conclusions are formulated on the positive and negative phenomena caused by the reform of civil procedural legislation in terms of the conciliation procedures studied. Keywords: civil proceedings, conciliation procedures, amicable agreement, settlement of a dispute with the participation of a judge, mediation, judicial mediation.
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Jarota, Maciej. "Issues of awards given as a part of social arbitration in a collective dispute. De lege lata and de lege ferenda remarks." Review of European and Comparative Law 48, no. 1 (March 10, 2022): 7–28. http://dx.doi.org/10.31743/recl.12240.
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Social arbitration as the third method of resolution of collective disputes can be used to resolve a dispute in an amicable manner. Thanks to this method, parties to the collective dispute can end their conflict thanks to the arbitration award with no need to go on strike. The author analyses the legal nature of arbitration awards and presents consequences of the related labour law legislation. The conclusion is as follows: current legal regulations are in need of change, especially when it comes to the execution, amendment and supplementation of an award issues as a part of social arbitration with the involvement of trade unions, employers or their organisations.
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Hussain, Fakhar, Muhammad Ikramullah Khan, Sarfraz Hussain, and Saadat Nawaz. "CPEC- AN ECONOMIC ENGINE FOR PEACE AND ITS IMPACT ON KASHMIR DISAGREEMENT." Humanities & Social Sciences Reviews 9, no. 3 (June 5, 2021): 724–31. http://dx.doi.org/10.18510/hssr.2021.9371.
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Purpose of the study: This research explores CPEC as a model of "Economic Interdependence" for being a mega driver of Globalization, which can bring economic equilibrium through development and interconnectivity for resolution of Kashmir dispute by connecting institutional and diplomatic channels to the economic interdependency.
Methodology: This research is based on secondary data collected from various sources like academic papers, electronic sources, Newspapers, Periodicals, Journals, organizational reports, and books. For interpretation of data, descriptive and analytical approach has to be adopted by using the deductive method of investigation.
Principal Findings: The main findings indicate that CPEC will provide grounds for minimizing conflicts on accounts of consistent regional and intra-regional economic connectivity. CPEC will transfigure the geographic position of Azad Jammu and Kashmir into an asset to be an economic engine for the establishment of peace in the region by amicable resolution of prolonged Kashmir dispute using economic connectivity.
Applications of this study: This research will be helpful for academics of peace and conflict studies, International Relations, diplomacy and strategic management, policymakers, diplomats of Pakistan, China, and India. It will contribute to the resolution of the Kashmir dispute.
Novelty/Originality of this study: The novelty/originality of this research lies in the attempt to correlate the concepts of "CPEC as an actor of economic interdependence" and "CPEC as a catalyst for the amicable resolution of Kashmir dispute."
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Othman, Aida. ""And Amicable Settlement Is Best": Sulh and Dispute Resolution in Islamic Law." Arab Law Quarterly 21, no. 1 (2007): 64–90. http://dx.doi.org/10.1163/026805507x197857.
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AbstractThe attention accorded to the institution of qadā' 'judgeship' and the adjudicative functions of the qādi has obscured another important method for resolving disputes in Islamic law, namely sulh 'amicable settlement'. While many studies on dispute resolution in Muslim societies have portrayed sulh mainly as a manifestation of customary practice within informal settings, a study of the legal sources reveals that it is not extra-judicial but is rather an integral aspect of an Islamic justice system.Citing authoritative traditions on the potentially disruptive effects of adjudication, jurists instructed disputants and qādis alike to first consider conciliation to solve conflicts. A qādi might opt for sulh in lieu of proceeding to trial, either steering disputants towards settlement on their own, with the assistance of mediators, or mediate the case himself. At the same time, jurists were also concerned with ascertaining the parameters within which sulh should operate, especially when they might offend the rules against ribā (usury) and gharar (uncertainty, deception, or unreasonable risk). The legal debates on sulh during the formative period of Islamic law show how jurists struggled to balance competing ethical and religious ideals: those of conciliation and compromise with those of truth and justice. In some situations, the individual's right to his full legal entitlements should be upheld, and sulh should not be given precedence over the formal, truth-seeking procedures of adjudication.
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Hassan, Abida, and Dil Muhammad Malik. "Evolution of Dispute Resolution Processes: From Informal to Formal and Back to Informal." Global Social Sciences Review V, no. II (June 30, 2020): 327–33. http://dx.doi.org/10.31703/gssr.2020(v-ii).31.
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This article aims to provide information relating to Alternative Dispute Resolution (Informal Dispute Resolution) which is considered a new technique for the resolution of disputes in western countries. Still, from the study, it has been proven that it is not a new technique, and has been in practice in one form or other in different times and civilizations; it is a conversion to new title and system with some modification, but the aim is same as was in ancient time, i.e., the historical evolution of the system from Torah period to present time presents the whole picture of this system. The study highlighted both practices in ancient and present times which shows that the system has been working successfully in all the times. Therefore, it can be applied elsewhere in the world, so the researcher is of the view that this system is more sustainable in any form than the formal system because it reflects the friendly, amicable, long-lasting relationships between parties.
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Tharakan, Rachel Jacob, and Kanika Lahoti. "Conquest of Sustainable Development through Reformative Mechanisms of ADR." European Journal of Sustainable Development 8, no. 5 (October 1, 2019): 254. http://dx.doi.org/10.14207/ejsd.2019.v8n5p254.
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An ever booming world population in the recent years have made a significant impact on the environment and a proportional rise in environmental issues. Amicable dispute settlement in environmental conflicts seem a far-fetched dream with the vastly different judicial systems of countries worldwide and thus, there exists a need for reinventing dispute resolution mechanisms to achieve the Sustainable Development Agenda. Goal 16 of the Sustainable Development Agenda calls for peace, justice and strong institutions and in furtherance of the same, The United Nations Environment Programme have discussed Alternative Dispute Resolution in Environmental Disputes as a part of Access to Justice. Like any other system, ADR also has its barriers to practical implementation. Moreover on a philosophical level, it is significant to question the ethics of environmental ADR as a form of restorative justice. With the help of this paper, the authors aim to examine and reconcile the identified benefits and issues of environmental ADR while focusing on the aspect of sustainable development. The authors also aim at evaluating the effectiveness of ADR on a global level and bring out the practicality of the mechanism in the same domain before concluding the paper with derived and intended suggestions.Keywords: Alternate Dispute Resolution Mechanism, Environmental Conflict, Sustainable Development, United Nations Environment Programme
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Valentová, Lucia. "Mandatory mediation in family law issues with domestic violence – limits and experience from USA." International and Comparative Law Review 15, no. 2 (December 1, 2015): 103–22. http://dx.doi.org/10.1515/iclr-2016-0038.
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Abstract Mandatory mediation obliges parties to the dispute to firstly seek out alternative and amicable form of dispute resolution before addressing the court. This could prove suitable in family law disputes where the focus is on maintaining the relationships aft er the dispute is resolved in the best interest of children. However this presumption does not need to apply to all cases. Domestic violence is a phenomenon of family law for centuries. The impact of the abuse between partners is immense. The article focuses on conditions, upon which the mediation could be mandated, what are the key elements of successful mediation and what are the challenges of mandatory mediation in respect of these elements. The article analyzes provisions of acts that regulate mediation in various states of USA with focus on the most controversial regulation in California. At the end it debates the relation of mandatory mediation and right to fair trial.
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Chan, Edwin H. W. "Amicable dispute resolution in the People's Republic of China and its implications for foreign-related construction disputes." Construction Management and Economics 15, no. 6 (November 1997): 539–48. http://dx.doi.org/10.1080/014461997372746.
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Piwowarczyk, Marika. "Formalne aspekty pozasądowego rozwiązywania sporów przed Rzecznikiem Finansowym." Studia Prawa Publicznego, no. 1(33) (March 15, 2021): 117–37. http://dx.doi.org/10.14746/spp.2021.1.33.5.
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The study concerns one of the methods of amicable settlement of consumer disputes i.e. out-of-court settlement of disputes between a client and a financial market entity before the Financial Ombudsman. The Financial Ombudsman is a sectoral entity created to resolve specific disputes in the financial sector. Due to the fact that services provided by financial market entities often require special protection of consumers who are clients of financial market entities it is therefore important to ensure that the consumer has easy and effective access to legal protection measures. One such measure is out-of-court settlement of disputes before the Financial Ombudsman. Disputes regulated by civil law have been additionally regulated by public law. Out-of-court dispute settlement before the Financial Ombudsman is indirectlyan element of the implementation of the European Union legislative package concerning ADR (Alternative Dispute Resolution) aimed at providing consumers with the possibility of resolving disputes with entrepreneurs before entities offering independent, impartial, transparent, effective and quick methods of alternative disputes solving. In Poland the implementation took place in the Act of September23, 2016 on out-of-court resolution of consumer disputes. However, out-of-court dispute settlement between a customer and a financial market entity was provided by the Polish legislator at an earlier date. It was implemented by the Act of August 5, 2015 on complaints handling by financial market entities and on the Financial Ombudsman. The aim of the study is to analyse the administrative and legal conditions of out-of-court dispute settlement before the Financial Ombudsman and to attempt to verify whether this process does in fact provide clients of financial market entities with quick and effective access to legal protection measures, therein protecting their interests.
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Carlevaris, Andrea, Philine Nau, and Hannah Tümpel. "The 2015 ICC Expert Rules." ASA Bulletin 33, Issue 3 (September 1, 2015): 485–93. http://dx.doi.org/10.54648/asab2015041.
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International economic transactions are constantly growing and evolving. As a consequence, dispute resolution services must be prepared to respond to the new challenges and needs of the global market. With this in mind, the ICC Commission on Arbitration and ADR adopted new Expert Rules, under which the ICC Centre for ADR provides distinct services relating to experts and neutrals in numerous technical and legal areas. The three new sets of Expert Rules provide for proposal, appointment and case administration services respectively. The changes are also intended to bring the Expert Rules in line with the 2012 ICC Arbitration Rules and with the 2014 ICC Mediation Rules. In this article, the authors provide an overview of the new Rules, detailing the main changes that were introduced and how the Rules may interact with ICC Arbitration, Mediation, Dispute Board, and DOCDEX proceedings. The new Expert Rules make for ideal tools in various types of proceedings and at any stage thereof. As such, expert-related services are not only a great complement to amicable dispute resolution, arbitration and court proceedings, but can also serve as an autonomous dispute resolution tool.
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Bahta, Tecle Hagos. "Amicable Dispute Resolution in Civil and Commercial Matters in Ethiopia: Negotiation, Conciliation and Compromise." Mizan Law Review 13, no. 1 (January 7, 2020): 1. http://dx.doi.org/10.4314/mlr.v13i1.1.
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Cowan, Mark J. "Anatomy of a State/Tribal Tax Dispute: Legal Formalism, Shifting Incidence, Potatoes, and the Idaho Motor Fuel Tax." ATA Journal of Legal Tax Research 8, no. 1 (January 1, 2010): 1–17. http://dx.doi.org/10.2308/jltr.2010.8.1.1.
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ABSTRACT: The law regarding state taxation in Indian country is one of the last bastions of legal formalism in tax law jurisprudence. The ability of a state to tax in Indian country turns on the legal incidence of the tax: in general, a tax on the tribe or tribal members is not allowed; a tax on nonmembers doing business with the tribes or tribal members is allowed. In a world where legal formalism governs and there is no overarching mechanism for reconciling the competing interests of state and tribal governments, state/tribal tax disputes can quickly become contentious. A recent battle between the state of Idaho and the tribes within its borders over fuel tax revenue exemplifies the truculence of state/tribal tax disputes, but also shows that amicable resolution is possible when the courts take small steps away from legal formalism. This article provides an overview of the tax landscape in Indian country and then analyzes the dispute over the Idaho motor fuel tax and what it reveals about resolving state/tribal tax disputes.
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Czapska, Karolina. "Elektronizacja postępowania mediacyjnego jako wyzwanie dla polskiego systemu rozwiązywania sporów." Studia Iuridica 77 (March 20, 2019): 23–32. http://dx.doi.org/10.5604/01.3001.0013.1863.
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Online mediation is a convenient and fast way to resolve disputes. The experience of the United States and European countries shows that the electronic method can be successfully carried out. Therefore, using the achievements of other countries, it is worth to develop amicable dispute resolution methods by electronic means. This carries many opportunities as well as challenges for the Polish legal order. This publication discusses the development of online mediation in the world and the opportunities it brings, both for the parties to the proceedings and for the mediator. Online mediation can be a new challenge for the mediator, which will contribute to the development of his skills. I will also discuss the legal, psychological and technological aspects of the phenomenon in question. The psychological skills of the mediator and their development on a different area – the online level, is a key issue.
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Marzouk, Mohamed, Lobna El-Mesteckawi, and Moheeb El-Said. "DISPUTE RESOLUTION AIDED TOOL FOR CONSTRUCTION PROJECTS IN EGYPT / GINČŲ SPRENDIMO PAGALBOS PRIEMONĖ STATYBOS PROJEKTAMS EGIPTE." Journal of Civil Engineering and Management 17, no. 1 (April 13, 2011): 63–71. http://dx.doi.org/10.3846/13923730.2011.554165.
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Contract relationships in construction projects in Egypt have become increasingly strained in recent years. Working relationships, communications, and contractual commitments are often not carried out in good faith. Hence, adversarial approaches to public and private sectors of the construction industry in Egypt generate a substantial increase in the use of binding arbitration and the judicial system for the settlement of contractual disagreements. In this research, a survey questionnaire was designed to obtain the relative weights of the factors that influence the Dispute Resolution Strategy (DRS) Decision. Twenty six combinations of project situations were established based on ten factors, established after studying the causes of disputes with the aid of literature and unstructured interviews, which affect the DRS-Decision. Experts were asked to perform pair-wise comparisons for the ten factors and advise on the recommended resolution methodology for the different status of DRS-Decision's factors. Although negotiation is usually the first attempt to solving any dispute, it sometimes could waste time and consequently money without reaching a satisfying solution. A computer model is proposed to inform the user of whether to quit negotiation and/or any amicable solution to save time and money and resort to arbitration/litigation instead, or to stick to negotiation and/or any amicable solution as it's the only way by which the dispute could be resolved. Results obtained from the survey were utilized in the development of the computer model to provide a simple and an easy to use tool that could advise decision makers on the most appropriate dispute resolution strategy that would mostly succeed; save time and money. A case study is presented to validate the computer model and demonstrate its use. Santrauka Statybos dalyvių santykiai statybos projektuose pastaruoju metu tampa labai įtempti. Dažnai darbiniai santykiai, komunikacija ir sutartiniai įsipareigojimai nėra vykdomi sąžiningai. Todėl priešiški požiūriai į statybos pramonės viešąjį ir privatųjį sektorius Egipte sukelia reikšmingą teisinių ginčų sistemų ir arbitražo taikymo didėjimą. Šiame tyrime, siekiant nustatyti santykinį veiksnių, lemiančių ginčų sprendimo strategijos (GSS) sprendimo santykinį reikšmingumą, buvo sudaryta tyrimo anketa. Remiantis dešimčia veiksnių, kurie daro poveikį GSS sprendimams ir buvo nustatyti remiantis literatūros bei nestruktūrizuotais pokalbiais studijuojant ginčų priežastis, buvo sudaryti dvidešimt šeši projektų situacijų deriniai. Ekspertų buvo prašoma atlikti dešimties veiksnių porinį lyginimą ir pasirinkti ginčo sprendimo metodologiją esant skirtingoms GSS sprendimų veiksnių reikšmėms. Nors derybos, kaip įprasta, yra pirmasis bandymas spręsti bet kokį ginčą, kartais tai gali būti tik laiko ir lėšų švaistymas nepasiekiant norimo rezultato. Pasiūlytas kompiuterinis modelis, kuris gali informuoti naudotoją, ar verta siekiant taupyti laiką ir pinigus nutraukti derybas ir (arba) kitą taikų procesą, vietoj to pradėti teismo arba arbitražo procesą, ar tęsti derybas ir (arba) taikų procesą kaip vienintelį būdą išspręsti ginčą. Remiantis tyrimo rezultatais buvo sukurtas paprastai naudojamas kompiuterinis modelis, kuris sprendimų priėmėjui gali patarti, kokią ginčo sprendimo strategiją reikėtų pasirinkti, kuri iš jų yra sėkmingiausia, taupo laiką ir pinigus. Siekiant parodyti kompiuterinio modelio veikimą pateikta atvejo analizė.
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Mooij, Hans. "Tax treaty arbitration." Arbitration International 35, no. 2 (March 14, 2018): 195–219. http://dx.doi.org/10.1093/arbint/aiy004.
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Abstract Traditionally, tax authorities endeavour to resolve their tax treaty disputes among themselves, by amicable settlement through a mutual agreement procedure (commonly known as ‘MAP’ procedure), without involvement from any third parties—neither arbitrators nor mediators. In past years, due to globalization of countries’ economies and spread of tax treaty networks, the number of disputess, their complexity and revenue interest involved have gone up drastically, exceeding many authorities’ capacities, and resulting in MAP cases taking up increasingly more time, or remaining unresolved at all. It is generally expected that the recent OECD/G20 initiated ‘BEPS’ (short for: Base Erosion and Profit Shifting) measures against international tax avoidance will add further to this. Arbitration so far having been hardly tried in practice, the recent arbitration piece under the BEPS multilateral treaty (MLI) and EU Directive on dispute resolution in international tax matters, however, create new momentum. It is now up to tax authorities if they can accustom themselves to the use of arbitration as an ordinary, and in certain circumstances preferable tool for resolving their disputes.
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Pervukhina, S. I. "Judicial Conciliation and Mediation: Correlation Problems and Development Prospects." Rossijskoe pravosudie 7 (June 25, 2021): 35–44. http://dx.doi.org/10.37399/issn2072-909x.2021.7.35-44.
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This article is dedicated to the issue of the correlation between judicial conciliation and mediation. The author compares these two conciliatory procedures according to the following criteria: organizational and legal framework, key goals and objectives; legal status of the person assisting the parties in resolving the dispute and their role and function/competence in the procedure; the peculiarities of the procedural form; the court role in organizing and performing conciliatory procedures after a trial being initiated. As a result of the comparison, the author comes to the conclusion that judicial conciliation and mediation are overlapping, which may have the negative effect on the development of the amicable dispute resolution as a legal institute. The author formulates the suggestions regarding the further development of the judicial conciliation model in order to attract the disputing parties' interest to this procedure and to raise its efficiency as the judicial load optimizing instrument.
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Ereciński, Tadeusz. "O kilku problemach działalności arbitrażu w Polsce." Studia Iuridica 75 (October 23, 2018): 59–67. http://dx.doi.org/10.5604/01.3001.0012.6909.
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Lawyers involved in arbitration have doubts about the accuracy of the direction in which the current practice of arbitration is proceeding. One of the main practical issues of arbitration was the issue of conflicts of interest, arbitration costs, the ethos of arbitration. In Poland, arbitration proceedings took too long. The author partly criticizes the provisions of the Act of 10 September 2015 on the amendment of certain acts in connection with the support of amicable dispute resolution methods, which among others concerns the shortening of the post-arbitration proceedings. The legislator adopted defective criteria for determining the venue of court of appeal in cases related to the complaint to set aside the arbitration award.
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Vasudevan, Jaya. "Harmonizing Commercial and Investment Arbitration: Conflict Dynamics." Journal of Sustainable Development Law and Policy (The) 12, no. 2 (December 13, 2021): 283–313. http://dx.doi.org/10.4314/jsdlp.v12i2.6.
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This article provides an independent analysis of the scope and extent of arbitration under investment agreements, and the implications of the possible convergence in the process of harmonization of international commercial arbitration law.The successful settlement of any dispute depends on the compatibility of the nature of the dispute with the technique to which it is submitted for resolution. In the last decade, there was a constant increase in the number of disputes that were subjected to arbitration and a major chunk of those disputes covered a comparatively new but known area called international investment law. With economic globalization allowing the free flow of foreign direct investment (FDI) in and out of a country, the existing regulatory framework in international law to standardize investment liberalization is often seen as ineffective, hence the consequent disputes. Here, arbitration offers a suitable framework for the amicable settlement of commercial disputes covering investment agreements with the assistance of bilateral or multilateral agreements between the states. Preferential trade agreements pertaining to investment often contain an arbitration clause for the settlement of future disputes between parties. At this juncture, one may find that there exists a fundamental dilemma in ascertaining the true nature of investment arbitration and how it is different from commercial arbitration. For example, the protection being offered to human rights under the purview of investment arbitration may generate doubts in the minds of investment arbitrators. In commercial arbitration, divergences in a pluralistic order become particularly relevant whereas the diverse legal cultures supported by individual constitutional frameworks have a direct impact on investment arbitration due to their practical application. The article also discusses the need for harmonized rules governing arbitration procedures while maintaining the functional dissimilarities between commercial and investment arbitration.
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Muller, EC, and CL Nel. "A critical analysis of the inefficacy of Court-Annexed Mediation (CAM) in South Africa – lessons from Nigeria." Journal for Juridical Science 46, no. 2 (December 9, 2021): 25–54. http://dx.doi.org/10.18820/24150517/jjs46.i2.2.
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As a result of defects in the South African civil justice system, the Department of Justice and Constitutional Development introduced voluntary court-annexed mediation (CAM) in the magistrates’ courts in 2014. CAM was chosen under the broader need for greater access to justice because it has the potential to make dispute resolution efficient, amicable, and affordable. It can, therefore, contribute to access to justice for all members of society. Since the amendment of the Magistrates’ Court Rules to provide for CAM, the uptake of mediation in terms of the CAM system has unfortunately been inadequate. The aim of this article is to identify reasons for the inefficacy of CAM since its implementation. We use normative research to critically analyse existing court rules and authority. We conclude that there are several reasons for CAM’s inefficacy which are elucidated in the main text. It is important to understand these reasons, as the legislature presents CAM as a mechanism to improve access to justice. From this platform, we evaluate the mechanisms for court-connected alternative dispute resolutions provided by the Nigerian Multi-Door Courthouse (MDC) system. This reveals policies and practices that could potentially improve the efficacy of CAM in South Africa, as these relate to the factors identified as impediments to the optimal functioning of CAM in our civil justice system. As such, we identify valuable lessons that can be learned from this comparison. Building hereon, and on the conclusions reached elsewhere in the article, we postulate that the mediation scheme, as contemplated by Rule 41A of the Uniform Rules of Court (as applied in the superior courts), should also be implemented in the magistrates’ courts. The article concludes that improving CAM in South Africa is of critical importance to advancing access to justice and departing from a culture of conventional adversarial dispute resolution.
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Menon, Sundaresh. "Technology and the Changing Face of Justice." Journal of International Arbitration 37, Issue 2 (April 1, 2020): 167–90. http://dx.doi.org/10.54648/joia2020009.
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The problem of unequal access to justice, also known as the justice gap, has been worsened by rising levels of inequality over the past half-century. The denial of due compensation and the inability to enforce rights in turn perpetuates and widens the wealth gap, initiating an ever-deepening spiral of inequality that threatens social cohesion and erodes public confidence in the courts. By empowering individuals, organizations and governments, technology and peaceable methods of dispute settlement have the potential to close each dimension of the justice gap and address the large volume of unmet justice needs that do not surface before the justice system. These unmet needs are generally straightforward but require urgent resolution, and therefore require quick and affordable solutions that focus on amicable settlement. In thinking about how we can redesign our justice system to promote solutions of this nature, we need a broader vision of justice: one that seeks to produce just outcomes through practical and proportionate means, and that aspires not merely towards keeping the peace but also building lasting peace. In this manner, our justice system will better promote effective equal access to justice, restore and strengthen communities that are riven by conflict, and help to tilt an unequal society closer towards equilibrium. Technology, Peacebuilding, Inequality, Access to justice, Proportionality, Online courts, Asynchronous hearings, Multi-door courthouse, Alternative dispute resolution (ADR), Mediation
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Guarín Duque, Gustavo. "The Termination Agreement of Intra-EU Bilateral Investment Treaties: A Spaghetti-Bowl with Fewer Ingredients and More Questions." Journal of International Arbitration 37, Issue 6 (December 1, 2020): 797–826. http://dx.doi.org/10.54648/joia2020038.
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This article deals with the issue of the implementation of the Achmea judgment of the Court of Justice of the European Union (CJEU) through the Termination Agreement of Bilateral Investment Treaties (‘Termination Agreement’, TA) between some Member States of the European Union (EU). The article focuses on the analysis of the TA provisions that terminate Bilateral Investment Treaties (‘intra-EU BITs’) and investor-State dispute settlement (ISDS) among EU Members. It also describes TA provisions regulating concluded, new, and pending arbitration proceedings having as a reference the date the CJEU issued the Achmea judgment. Also, it examines how the TA regulates pending arbitration proceedings and discusses how TA Members are allowed to resort to transitional measures to resolve their dispute, throughout an amicable resolution proceeding, if they fulfil some conditions. Further, the article analyses some systemic issues of the TA, some related to the EU investment protection regime, others regarding the legal implications for intra-EU BIT provisions for EU Member States which did not sign the TA. Further, the article examines some possible issues related to the legal nature of the TA under international law and EU law.
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Islam, Mohammad Saidul. "Efficiency and Effectiveness of Alternative Dispute Resolution Schemes Towards the Promotion of Access to Justice in Bangladesh." IIUC Studies 8 (September 10, 2014): 95–112. http://dx.doi.org/10.3329/iiucs.v8i0.20405.
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In recent years in Bangladesh there has been renewed emphasis on the Alternative Dispute Resolution schemes as a means to avoid the use of contested hearings in the formal litigation and to ensure the most fundamental right of access to justice for all in an easy way. These Alternative Dispute Resolution (ADR) modalities are considered as less likely to fuel the parental conflicts, more likely to induce the parties to resolve their conflicts in an amicable manner preserving the future relationship between the parties and reducing cost, delay and loss of energy to a significant extent. Following the considerable advantages of ADR almost every county of the world has introduced ADR system in its justice delivery system which has paved the way to the promotion of access to justice indiscriminately for all. This paper is an attempt to provide a comprehensive idea about obstacles in the way of access to justice in our legal system and by analyzing the different mechanisms of ADR and court and non-court based practices of those modalities under different legislations of Bangladesh, to show the fairness, efficiency and effectiveness of ADR towards the promotion of access to justice and to provide some recommendations for the complete success of ADR towards the effective, non-discriminative, speedy and easy access to justice for all either rich or poor, literate or illiterate, male or female and elite or lower class. DOI: http://dx.doi.org/10.3329/iiucs.v8i0.20405 IIUC Studies Vol.8 December 2011: 95-112
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Tamdoğan, Işık. "Sulh and the 18th Century Ottoman Courts of Üsküdar and Adana." Islamic Law and Society 15, no. 1 (2008): 55–83. http://dx.doi.org/10.1163/156851908x287307.
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AbstractThis article explores and compares cases of sulh (amicable agreement) that are documented in the records of two Ottoman courts—one in Üsküdar, the other in Adana—in the second half of the 18th century. As a dispute resolution practice, sulh draws on three normative systems: shari'a, kanun and 'örf. An abundance of references to sulh agreements in court records testifies not only to the importance of this social practice, but also to complex interrelations between the three normative systems. Sulh documents provide evidence of the interrelation between the shari'a court and other legal arenas. The judges in both Üsküdar and Adana viewed sulh agreements—even those concluded privately and outside of court—as valid and binding. There were, however, significant differences between the two courts regarding the sulh cases; these differences highlight the connection between the location of the court and its specific legal culture.
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Niriella, M. A. D. S. J. S. "Amicable settlement between the disputed parties in a criminal matter: an appraisal of mediation as a method of alternative dispute resolution with special reference to Sri Lanka." Sri Lanka Journal of Social Sciences 39, no. 1 (August 22, 2016): 15. http://dx.doi.org/10.4038/sljss.v39i1.7399.
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Elliot, David C. "MED/ARB: Fraught with Danger or Ripe with Opportunity." Alberta Law Review 34, no. 1 (October 1, 1995): 163. http://dx.doi.org/10.29173/alr1104.
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Parties in dispute, or contemplating a dispute resolution process, want to settle their disputes amicably, but equally want the dispute resolved. Lawyers must assess what, at first sight, might seem poor choices for dispute resolution. This article examines an increasingly popular process
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Pattison, George. "Kierkegaard and Speculative Theology." Hegel Bulletin 28, no. 1-2 (2007): 23–44. http://dx.doi.org/10.1017/s0263523200000628.
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In recent years, the long-standing philosophical and religious duel between ‘Hegel’ and ‘Kierkegaard’ has quiedy transmuted into something that, if still far from an amicable resolution, is something much less black and white. We are, of course, collectively grateful to Jon Stewart for demonstrating not only something of the extent to which ‘Kierkegaard's relation to Hegel’ needs to be re-envisaged as ‘Kierkegaard'srelationsto Hegel,’ but also that, often, even mosdy, the passages where Kierkegaard is seemingly attacking Hegel are actually directed against one or other, often Danish, representative of Hegelianism — above all, against J. L. Heiberg and H. L. Martensen. As a biographical narrative, this is largely beyond dispute — though, as many of Stewart's critics have noted, this does not necessarily lead, as he himself suggests, to the elimination of crucial philosophical differences between the two erstwhile protagonists.In this paper, I accept Stewart's point that Kierkegaard's reception of Hegel is inseparable from his multiple receptions of Hegelianism. I shall, however, offer a particular focus on a part of the story that, I believe, still remains under-represented in the secondary literature, namely, Kierkegaard's early response to a number of those theologians often referred to as ‘Right’ Hegelians. This focus calls for a revision of Stewart's emphasis on the relation to Heiberg and Martensen as the decisive factor in Kierkegaard's anti-Hegelianism.
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Vatamanyuk, V. O. "Conclusion of a Settlement Agreement within the Framework of the Derivative Claim Proceedings." Actual Problems of Russian Law 16, no. 10 (November 20, 2021): 38–55. http://dx.doi.org/10.17803/1994-1471.2021.131.10.038-055.
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The paper discusses the procedural features of concluding a settlement in the claim involving a corporation-participant for compensation of losses caused by the bodies of a legal entity, and aimed at recognizing as invalid a transaction made by a corporation and applying the consequences of its invalidity on appropriate corporate grounds. The author critically evaluates the procedural order applied to the peaceful settlement of a dispute in an indirect claim, provided for under paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 23 June 2015 No. 25, in terms of the possibility of an independent conclusion of a settlement by a corporation-participant. The author justifies the necessity of obtaining the consent of the corporation for the legal entity participant to conclude a settlement. Particular attention is paid to considering the specifics of concluding a settlement in the event that other members of the corporation join an indirect claim. The paper demonstrates the procedural features of concluding an amicable settlement when considering an indirect claim according to the rules of the class proceedings. To conclude the study, the author dwells on the issue of the need for corporate approval of a settlement containing signs of a major transaction and (or) an interested party transaction concluded within the framework of an indirect claim.
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TARRIEN, DAVID. "The Law Student as Mediator IEP Project: Encouraging Legal Services Outreach in the Community and Empowering Families." Michigan Academician 44, no. 1 (January 1, 2016): 51–60. http://dx.doi.org/10.7245/0026-2005-44.1.51.
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ABSTRACT Determining appropriate special education services for children is a complex endeavor. The issues addressed do not always lend themselves to an amicable, streamlined process. Indeed, the arcane nature of the statutes and rules surrounding Individualized Education Programs, or IEPs, often seem at odds with a caregiver's eagerness to ensure academic success for a beloved child. Practical matters, too, such as financing for much needed services for the few while ensuring fair access to educational resources for all students, can set the stage for miscommunication, mistrust, and bad or hurt feelings on both sides of the table. Meanwhile, children waiting for services languish. Further, because lack of funds tends to be a key issue for families, there often is a dearth of effective advocacy available to help the process move efficiently and appropriately forward. Meanwhile, legal education is in a constant struggle to provide practical, meaningful, and concrete experiences that allow students to delve into the everyday practice of law. This paper explores how one program, the IEP Project out of WMU Cooley Law School, helped law students hone their advocacy and dispute resolution skills while assisting parents and school administrators through the IEP process. Their goal was to create a calm and efficient process that culminated in the student involved receiving appropriate accommodations and services. Additionally, this project exposed law students to the most at-risk members of their communities and worked to inspire some to continue to serve that population as legal professionals.
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Kovačević, Ljubinka. "Amicable resolution of individual labour disputes." Revue de droit comparé du travail et de la sécurité sociale, no. 4 (December 1, 2018): 260–63. http://dx.doi.org/10.4000/rdctss.1845.
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Kovačević, Ljubinka. "Amicable resolution of individual labour disputes." Revue de droit comparé du travail et de la sécurité sociale, no. 4 (December 1, 2019): 226–29. http://dx.doi.org/10.4000/rdctss.1444.
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Aptina, I. Putu Angga, Anak Agung Istri Agung, and Desak Gde Dwi Arini. "Pembagian Hak Atas Tanah Waris dalam Hukum Adat Bali." Jurnal Interpretasi Hukum 1, no. 2 (September 26, 2020): 84–89. http://dx.doi.org/10.22225/juinhum.1.2.2440.84-89.
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The issue of inheritance disputes among the village community is very frequent. For this reason, written and unwritten laws are needed for the implementation of a fair distribution of inheritance for each people. The research method used is the Empirical research method, the approach is to see the law in a real sense or it can be said to see researching how the law works in society. The results showed that as a manifestation of mutual respect and an attitude of living in harmony, always strived for dispute resolution through family deliberations. Peaceful settlement is prioritized to maintain balance in social life. Peaceful resolution is also intended to eliminate feelings of resentment resulting from disputes that arise. Peaceful settlement in life in the village is seen as necessary and a necessity to maintain harmony in dispute resolution. It is hoped that the problem can be resolved amicably in a friendly manner.
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Takupiwa, Nyanga, and Tapfumanei Christian Shelfa. "Collective Bargaining: A Catalyst for Dispute Resolution between Employers and Employees in the Retail Industry in Urban Mutare." Ushus - Journal of Business Management 18, no. 1 (January 1, 2019): 1–13. http://dx.doi.org/10.12725/ujbm.46.1.
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The study assesses the effectiveness of collective bargaining in resolving conflicts between employers and employees in the retail industry. The study shows that collective bargaining is a valuable dispute resolution device in the retail industry. It gives an opportunity to employers and employees to discuss their concerns pertaining to issues of work thereby preventing and resolving disputes amicably. Collective bargaining creates a platform for effective communication, negotiations in good faith, impart knowledge of rights as outlined in the Labour Act Chapter 28:01 and make organisations follow through the collective bargaining agreement (CBA). The study proposes that organisations should ensure that collective bargaining adheres and implements all the CBAs.
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Rantsane, Ditaba Petrus. "The Origin of Arbitration Law in South Africa." Potchefstroom Electronic Law Journal 23 (November 3, 2020): 1–27. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a8963.
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This article seeks to trace the historical origin of arbitration as it is currently practised in South Africa. The resort to alternative dispute resolution methods has existed since time immemorial. The practice of arbitration was identified in the Bible when it was practised by King Solomon. South African traditional communities practised arbitration before the arrival of Western nations in South Africa, who brought with them their norms and practices. The community entrusted the responsibility of resolving disputes amicably to the headman, the Chief or the King. The practice of traditional alternative disputes resolution was disrupted by colonialism, which introduced Roman-Dutch law and subsequently English law influences. The aim of the parties under both Roman-Dutch law and English law was to steer their disputes away from courtrooms with their rigid rules and procedures. Hence the resort to arbitration. Through the passage of time, the parties lost respect for arbitration. Judicial intervention became a necessary tool to enforce the agreement to arbitrate or the subsequent award.
A concern was raised in some quarters regarding the South African arbitration legislation that stagnated in 1965 when it was enacted. The sophisticated legal system and the impartial and independent judiciary, provided a strong support to arbitration and its autonomy. The firm judicial support did not detract from the necessity for a complete overhaul of the arbitration prescript, which might position South Africa as the hub of commercial arbitration in Africa and globally. The enactment of the International Arbitration Act, 2017 marked a great milestone towards achieving that goal. Arbitration is embedded in the fabric of South African commercial dispute resolution.
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Czermińska, Małgorzata. "EUROPEAN UNION IN WTO’S DISPUTE SETTLEMENT SYSTEM." Roczniki Administracji i Prawa 4, no. XX (December 30, 2020): 33–49. http://dx.doi.org/10.5604/01.3001.0014.8376.
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The World Trade Organisation (WTO) serves as a forum for co-operation, currently for as many as 164 countries, and in addition, it allows for the resolution, also amicably, of trade conflicts between parties, consequently, settling disputes between them. One of essential provisions of the Uruguay Round (UR) of the General Agreement on Tariffs and Trade (GATT) included the introduction of a new dispute settlement mechanism, that is to say, the Dispute Settlement Understanding (DSU), which became effective on 1 January 1995. Member States of the European Union were not only actively involved in developing the rules of the international trade system, but they also influenced, to a large extent, the form of both such rules and of ongoing trade negotiations, as well as they assumed and still assume responsibility for the final arrangements. Hence, their role in the multilateral trade system is both active and passive. This paper aims to demonstrate the functioning of the WTO’s dispute settlement mechanism and show the role which the European Union serves in this system. The Article employs an analytical and descriptive method. It draws on sources from the national and international literature and WTO’s databases.
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Ghosh, Nilanjan, and Jayanta Bandyopadhyay. "A scarcity value based explanation of trans-boundary water disputes: the case of the Cauvery River Basin in India." Water Policy 11, no. 2 (April 1, 2009): 141–67. http://dx.doi.org/10.2166/wp.2009.017.
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The paper is an attempt to interpret trans-boundary water disputes with the help of scarcity value, which is the value that could have been generated if the limit on water availability could be relaxed by one unit. Scarcity value measures the degree of deprivation and creates the basis for disputes. This hypothesis has been applied in this paper to the disputes over water use for irrigation in the Cauvery basin between the states of Karnataka and Tamil Nadu in South India. On the basis of the historical data for the area under paddy cultivation in the two states, the paper shows that such disputes are not clearly based on physical scarcity of water but are a temporal coincidence of demand based on scarcity value. This means that enhanced supply would not be the correct approach to the resolution of disputes. New economic instruments based on scarcity value may provide a more objective picture of the disputes and hence help in their amicable resolution.
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Widyantara, I. Gede Suka, I. Ketut Sukadana, and Diah Gayatri Sudibya. "Peranan Bendesa dalam Penyelesaian Sengketa Tanah Waris di Desa Adat Buduk." Jurnal Analogi Hukum 2, no. 1 (March 4, 2020): 32–36. http://dx.doi.org/10.22225/ah.2.1.1606.32-36.
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Abstract-In the inheritance system, people in Bali have a system of inheritance that originates from the male kinship system which causes the relationship to be emphasized more according to the husband's lineage. Generally, any inheritance disputes do not have to end in court, because disputes about inheritance involve adat law in their resolution. Moreover, if the inheritance land dispute is still a family dispute, then the settlement should also be settled amicably through the active role of the Bendesa as the Leader in Pakraman Village. The formulation of the problem in this study is: How is the regulation of inheritance in Pakraman Buduk Village ?, What is the role of Bendesa in the settlement of inheritance land disputes in Pakraman Buduk Village? The problems discussed are examined from an empirical point of view. The results showed that the inheritance arrangement in Pakraman Buduk Village was in accordance with the contents of awig-awig Pakraman Buduk village contained in Palette 4 Pawos 75 to Pawos 78 which included inheritance, heirs, heir obligations, inheritance distribution, and loss of rights to be heir. The role of adat Bendesa in the settlement of inheritance land disputes in Desa Pakraman Buduk as a mediator.
Keywords: Inheritance, Bendesa, Dispute Resolution
Abstrak-Dalam sistem kewarisan, masyarakat di Bali memiliki sistem kewarisan yang bersumber dari sistem kekerabatan laki-laki yang menyebabkan pertalian hubungan lebih dititikberatkan menurut garis keturunan suami. Umumnya pada setiap sengketa tanah waris tidak harus berakhir di pengadilan, karena sengketa tentang waris melibatkan hukum adat dalam penyelesaiannya. Apalagi kalau sengketa tanah waris tersebut masih merupakan sengketa yang bersifat kekeluargaan, maka penyelesaiannya pun seharusnya diselesaikan secara kekeluargaan melalui peranan aktif dari pihak Bendesa selaku Pemimpin di Desa Pakraman. Rumusan masalah dalam penelitian ini adalah Bagaimana pengaturan warisan di Desa Pakraman Buduk ?, Bagaimana peranan Bendesa dalam penyelesaian sengketa tanah waris di Desa Pakraman Buduk ?. Permasalahan yang dibahas dikaji berdasarkan sudut pandang empiris. Hasil penelitian menunjukkan, bahwa Pengaturan warisan di Desa Pakraman Buduk sesuai dengan isi awig-awig Desa Pakraman Buduk termuat dalam Palet 4 Pawos 75 sampai dengan Pawos 78 yang mencakup tentang harta warisan, ahli waris, kewajiban ahli waris, pembagian warisan, dan kehilangan hak untuk menjadi ahli waris. Peranan Bendesa adat dalam penyelesaian sengketa tanah waris di Desa Pakraman Buduk sebagai mediator.
Kata Kunci: Warisan, Bendesa, Penyelesaian sengketa
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Zamaludin, Zamaludin, and Jawade Hafidz. "The Juridical Analysis of Role & Responsibility of Notaries in Dispute Settlement with Mediation." Sultan Agung Notary Law Review 3, no. 2 (August 10, 2021): 697. http://dx.doi.org/10.30659/sanlar.3.2.577-585.
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This journal will explore and discuss in order to be able to analyze and be able to find out about Juridical Analysis of the Role and Responsibilities of Notaries in Settlement of Disputes by Mediation/Peace. In this case Problem A peace deed is an agreement between two or more parties in which they request legal force assisted by a mediator in accepting and carrying out the contents of the agreed agreement. Peace decisions have executive power as described in Article 1858 of the Civil Code (hereinafter referred to as the Civil Code), Article 130 HIR paragraphs 2 and 3. Based on this, the peace agreement resulting from a dispute resolution process must be stated in written form, it aims to prevent the re-emergence of the same dispute in the future. This legal research aims to find out what is the role of a notary in settlement with peace outside the court and how is the responsibility of a notary in resolving disputes against a peace deed made before a notary and what is the legal force of a peace deed made before a notary. In this case deed of peace can be in the form of an underhand deed or an authentic deed made by a notary. This research is a normative juridical research that is used is the approach, namely: the juridical approach is used for research that refers to existing literature studies or to the secondary data used. While the normative approach is used to obtain normative knowledge about the relationship between one regulation and another and its application in practice. Types of legal materials used: Primary Legal Materials, Secondary Legal Materials and Tertiary Legal Materials obtained through literature study and data obtained from related parties. That is in Juridical Analysis of the Roles and Responsibilities of Notaries in Settlement of Disputes Amicably
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Ahmad Muflikhudin. "AKAD AS-SULHU SEBAGAI INDUK PENYELESAIAN SENGKETA DALAM MU’AMALAH MENURUT IMAM JALALUDIN AS-SUYUTI." As-Salam: Jurnal Studi Hukum Islam & Pendidikan 9, no. 1 (June 26, 2020): 107–22. http://dx.doi.org/10.51226/assalam.v9i1.185.
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This article aims to describe the As-Sulhu Akad as the root of dispute resolution in mu'amalah. The research method in this article was carried out by studying the literature on the works of classical scholars. The results of this study explain that dispute cases are resolved through courts (litigas), and some are resolved amicably (out of court) or non-litigation. In Islamic economic law, solving problems outside the court is termed as tahkim and As-sulhu. According to Imam Jalaludin As-Suyuti in the Asbah Wanadhoir book, it is explained that AS-Sulhu (negotiation) can include buying and selling, leasing, and accounts payable. The positive impact expected from this article is that Muslims can use the As-Sulhu Akad as a strategic step in solving problems.
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Sugarman, Wan. "PENYELESAIAN SENGKETA AKIBAT KEADAAN MEMAKSA (FORCE MAJEURE) PADA PERJANJIAN KEPEMILIKAN RUMAH ANTARA PENGEMBANG DENGAN KONSUMENNYA (Studi Pada PT. Revalindo Cipta Mandiri)." UNES Law Review 3, no. 1 (September 15, 2020): 13–21. http://dx.doi.org/10.31933/unesrev.v3i1.141.
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As stipulated in Law Number 1 of 2011 concerning Housing and Settlement Areas, the state is responsible for protecting the entire Indonesian nation through the implementation of housing and settlement areas so that people, especially low-income people, can live and inhabit decent and affordable houses inside. a healthy, safe, harmonious and sustainable environment throughout Indonesia. In order to fulfill the housing administration, the government also expects community self-sufficiency through developer companies. This research is a descriptive analytical study, with a normative juridical approach as the main approach and empirical juridical as a support. The data used are secondary data and primary data collected through library research and field studies with interview techniques. The analysis was carried out qualitatively and presented in a qualitative descriptive form. Based on the results of the research that has been analyzed, it can be concluded that, first, the developer will attempt to resolve disputes with consumers caused by force majeure by means of peaceful negotiations. Second, before the peace negotiations are carried out, the developer will prepare a negotiation strategy such as taking inventory of potential disputes. Third, prepare a dispute resolution mechanism so that it is hoped that it can be resolved peacefully and amicably. Fourth, the developer of PT. Revalindo Cipta Mandiri will continue to build the Griya Dwitama Housing which was abandoned due to the earthquake, because the developer has spent little capital to start the housing development.