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Journal articles on the topic 'State Board of Mediation and Arbitration'
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1
Laugen, R. Todd. "Struggles for the Public Interest: Organized Labor and State Mediation in Postwar America." Journal of the Gilded Age and Progressive Era 4, no. 1 (January 2005): 69–82. http://dx.doi.org/10.1017/s1537781400003662.
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In his 1906 Annual Message to Congress, President Theodore Roosevelt urged support for a bill to mandate the government investigation of labor disputes before allowing workers to strike. In an “age of great corporate and labor combinations,” the president insisted “the public has itself an interest which can not wisely be disregarded; an interest not merely of general convenience, for the question of a just and proper public policy must also be considered.” Congress at the time was unmoved. Yet Roosevelt's proposal signaled a growing movement to compel the investigation and arbitration of major labor conflicts. This movement peaked in the years soon after World War I. Advocates for government mediation insisted that an impartial commission of experts could peacefully negotiate workplace disputes and spare the consuming public the contests of will and force associated with major strikes. The Progressive Era arbitration of railroad and mining conflicts established important precedents and have received significant attention from scholars. National mediation boards, however, rarely assumed the power to order participation. Such efforts were more prominent at die state level. In 1915 Colorado legislators largely implemented Roosevelt's proposal, creating the first government board with powers to ban strikes and lockouts pending an investigation in industries affected with a public interest. Soon after the war, Kansas expanded upon the Colorado precedent with a compulsory arbitration board to regulate a host of indus-tries deemed essential to the public. Programs for state mediation of labor conflicts in the postwar period were particularly bound up with questions of compulsion in the public interest.
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Mukhametzaripov, I. А., R. M. Nurgaleev, and M. M. Mardanshin. "The role of the Qadiyat of the Muslim Religious Board in the modern Muslim Community of Tatarstan." Minbar. Islamic Studies 15, no. 4 (January 11, 2023): 869–83. http://dx.doi.org/10.31162/2618-9569-2022-15-4-869-883.
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The study of the activities of Muslim institutions in the field of regulation of social relations in a secular state is of particular interest in terms of religious associations’ adaptation. The authors explore the structure of the Qadiyat of the Muslim Religious Board of the Republic of Tatarstan, the powers of qadis, the main directions of their activities and give examples of the consideration of cases by Muslim judges, analyzing regulations and publications within the framework of the structural-functional approach. Tatarstan qadis as members of the Qadis Council and as regional Muslim judges perform control, advisory, mediation and arbitration functions. Qadis deal with marriage and family matters, inheritance disputes, settle conflicts in the business sphere, consult on Sharia issues and are engaged in the preservation and strengthening of Tatar traditions. One of the promising directions for the development of the institution of Qadiyat as an instrument for pre-trial settlement of disputes is the creation of a mediation and arbitration body on its basis that can help a wide range of believers to resolve conflicts according to the norms of Islam and Russian laws.
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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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Adekola, Adetola Adeniyi, Busuyi Francis Olowo, and Olugbenga Timothy Ajadi. "ACADEMIC STAFF UNION VERSUS GOVERNMENT NEGOTIATION STRATEGIES: A VERITABLE TOOL FOR SUSTAINING INDUSTRIAL HARMONY IN ONDO STATE SECONDARY SCHOOLS, NIGERIA." IJIET (International Journal of Indonesian Education and Teaching) 5, no. 1 (January 27, 2021): 71–82. http://dx.doi.org/10.24071/ijiet.v5i1.2760.
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The study assessed negotiation strategies adopted by ASUSS and government for sustaining industrial harmony in Ondo State secondary school, Nigeria. The study adopted the survey research design using quantitative approach. The population for the study comprised 300 Principals, 600 Vice-Principals and 13,000 teachers from the 300 secondary schools in Ondo State. The sample was made up of 1500 respondents which comprised 90 principals, 180 vice-principals and 1,230 teachers using multistage sampling procedure. An instrument was use to gather data. The data collected were analysed using descriptive statistics. The findings of the study established that the causes of industrial disharmony between ASUSS and Ondo State Government were inadequate teaching and infrastructural materials (96.1%), unfavourable salary structure applicable in the State (97.3%), undue interference of government in union leadership and Government non-implementation of concluded agreements between ASUSS and Ondo State Government (93%). The findings also showed that the causes of the industrial disharmony have made ASUSS and Ondo State Government to have frequent disharmony annually (76.9%), every five years (76.7%), and biennially (76.7%). The results also indicated that the various negotiation strategies that have been adopted by ASUSS and government which include mediation (88.10%), conciliation (62.20%), arbitration (53.6%), formal Inquiry (99%) and reference to the National Industrial Court (99.10%). The results equally showed that the most effective strategies that frequently used in enhancing industrial harmony were board of inquiry (52%) and collective agreement (93,7%). The study concluded that mediation, conciliation, arbitration, formal inquiry and reference to the National Industrial Court were the ASUSS and Ondo State Government negotiation strategies as a means of ensuring industrial harmony in Ondo State secondary schools
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Manda, Trishula, Shruti Samant, Kartik Pendhe, Rohan Naphade, Harshit Gupta, and Smitha Yadav. "CLAIMS AND SETTLEMENT IN ROAD PROJECT." Journal of Civil Engineering, Science and Technology 10, no. 1 (April 25, 2019): 1–11. http://dx.doi.org/10.33736/jcest.1430.2019.
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Claims are becoming inevitable and unavoidable in modern projects involving new technology, specifications, and complexities. There are many reasons for claims, for instance time extension, machinery change, material deviation, manpower, price escalation, accidents on site, changes in design, etc., which result into disputes. Confusion also exists in adoption of dispute resolution techniques, such as arbitration, conciliation, mediation, dispute resolution board, etc. In this paper, various factors responsible for claims and dispute in road projects and their intensity have been identified. The results are implied through a survey of clients, contractors, and consultants involved in road projects. The work focuses on the predominant causes of dispute and the methodology adopted by stake holders for settlement of the same.
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Hasbi, Ghassan Niko, Bambang Tjatur Iswanto, and Mulyadi Mulyadi. "KEWENANGAN ABSOLUT PENGADILAN AGAMA TERHADAP PENYELESAIAN KASUS PERBANKAN SYARI’AH (ANALISIS YURIDIS PUTUSAN MAHKAMAH KONSTITUSI NOMOR 93/PUU-X/2012)." Varia Justicia 13, no. 1 (January 30, 2018): 18–26. http://dx.doi.org/10.31603/variajusticia.v13i1.1862.
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The provisions on dispute settlement Islamic banking has been laid down in Chapter IX of the settlement of disputes of Article 55 (1), (2), (3) of Law No. 21 of 2008 mentioned that the dispute settlement Islamic Banking is done by the court within the religious court, in case the parties have foretell dispute resolution other than as referred to in paragraph (1), the settlement of disputes in accordance with the contents of the contract, settlement of disputes referred to in paragraph (2 ) must not conflict with Islamic principles. The elucidation of Article 55 paragraph (2) of Law No. 21 of 2008 mentioned that the reference to the settlement of disputes in accordance with the contents of the contract are as follows efforts of deliberation, banking mediation, through the National Sharia Arbitration Board (Basyarnas) or other arbitration institution and / or through the courts within the General Court. The polemic is about the authority to resolve disputes in Islamic banking because there is no dualism of litigation, the Court of religion (Article 55 paragraph (1) of Law No. 21 of 2008) and the District Court stated in the elucidation of Article 55 paragraph (2) of the Act No. 21 of 2008), so in this study took the title of Absolute Authority of Religious Court Case Against Islamic Banking Solution (Analysis Juridical Constitutional Court Decision No. 93 / PUU-X / 2012).
This study aims to know the legal implications arising from the decision of the Constitutional Court regarding the absolute authority of the Religious, and the competence of the Religious Islamic Banking in resolving disputes after the publication of the decision of the Constitutional Court for the No. 93 / PUU-X / 2012.
The method used in this research is the method of juridical-normative research focus to apply the rules or norms of positive law by finding the law that encourages research, such as looking for the source of various litelatur, interviews with respondents also focused on how the legal aspects and principles of law against the decision of the Constitutional court, and the legal implications of this decision are equipped with primary data (Field research), as well as secondary data which supports research.
In this study, there are two principal issues examined is about authority Absolut religious court after the Constitutional Court ruling No. 93 / PUU-X / 2012 as well as the implications of the issuance of the verdict in the world economy, especially sharia Islamic microfinance institutions and Islamic banking. The findings of this research is the decision of the Constitutional Court are legally absolute magnitude against all things Islamic economy both litigation and non-litigation to force the execution of the decision in the case or a decision which is final.
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M.Obadia, Eloïse. "Investor-State Disputes:What Works Beyond Arbitration?" BCDR International Arbitration Review 6, Issue 2 (December 1, 2019): 441–84. http://dx.doi.org/10.54648/bcdr2019012.
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Given the criticism addressed towards international arbitration to settle investor-state disputes, it is necessary to explore alternatives.The most prominent one is mediation which presents many advantageous features centered around preserving and nurturing the relationship between the state and the investor. While all the conditions are met for the increased use of mediation, it remains marginal, mainly because of the very essence of investor-state disputes. A promising alternative is conflict-prevention which includes several tools intervening at different levels of the investor-state conflict continuum. Such tools include grievance management mechanisms and investment ombudsmen which incorporate mediation techniques in their operating procedures and have proven to be efficient. In the end, it is better to prevent than to cure and the most efficient way to prevent is to educate. ‘I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.’ – Maya Angelou
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Xiaoyo, Fan. "The Confidentiality and Transparency Debate Under Investor-State Mediation." Groningen Journal of International Law 9, no. 2 (May 18, 2022): 325–51. http://dx.doi.org/10.21827/grojil.9.2.325-351.
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As an important part of alternative dispute resolution, investor–state mediation is attracting increasing interest from the creators of investment treaties and institutional rules. Traditional mediation mechanisms are inherently confidential. Keeping mediation proceedings and related documents strictly confidential is crucial to successful mediation. However, investor–state disputes, which involve public interests, often do not allow for the strict confidentiality of traditional mediation. Rather, those involved in investor–state mediation face pressure to be transparent. To increase public acceptance and the perceived legitimacy of the investor–state mediation system, it is necessary to establish the right balance between confidentiality and transparency. The degrees of transparency in arbitration and mediation are not the same; there are many institutional differences in their transparency rules, such as those regarding public hearings, access to documents, and non-disputing party submissions. The degree of transparency of investor–state mediation should generally fall between the strict confidentiality of commercial mediation and the transparency of investor–state arbitration. Distinct from investor–state arbitration and its exceptions to transparency and confidentiality requirements, investor–state mediation applies confidentiality in principle, with appropriately expanded transparency exceptions to respond to the need for transparency. When constructing investor–state mediation transparency rules, it is necessary to consider many other factors, as there is no universally applicable optimal degree of transparency.
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Gilson, Clive H. J., and Terry Wagar. "The U.S./Canada Convergence Thesis: Contrary Evidence from Nova Scotia." Articles 50, no. 1 (April 12, 2005): 66–84. http://dx.doi.org/10.7202/050992ar.
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The impact of P.C. 1003 on labour relations legislation in the various Canadian provinces can be both overestimated and underestimated. Many other elements and factors came together to produce a Canadian System of industrial relations in 1944. P.C. 1003 was both a result and a beginning. The American Wagner Act of 1935 and the pressure exerted in Canada by union leaders to obtain similar legislation in this country were two major factors. Some provincial legislations had established Systems of conciliation, through the federal and/or provincial Departments of Labour. A few previous laws prepared the way for P.C. 1003. The Quebec Trade Disputes Act of 1901 introduced mediation, conciliation and arbitration. Although the services were offered on a voluntary basis to interested parties, a certain number did use them, and that very fact contributed to the view that state intervention was normal. The federal legislation adopted in the first decade of the century had a similar impact, at least until its constitutionality was successfully attacked in 1925. After the Snider case, all Canadian provinces but one moved to "provincialize" the effect of the Industrial Disputes Investigation Act by adopting similar legislation. The 1937 Industrial Conciliation and Arbitration Act of British Columbia provoked much interest; and the 1943 Ontario Collective Bargaining Act was an important experimental prelude to P.C. 1003. The provisions of these acts were in most cases voluntary, but their application, whether mandatory or voluntary, helped to foster the belief that government intervention in labour disputes was normal, if not desirable. The first federal-provincial conference held on the subject in 1943 also helped to pave the way to the acceptance of the main elements of P.C. 1003. Because of the war situation and the urgency of keeping conflicts from becoming too disruptive, steps that could not have been taken in other circumstances became acceptable at that time. Thus the administrative machinery for certification and conciliation services was put in place. The "cost-plus" system of granting government contracts played a major role. Because P.C. 1003 was mandatory for all war industries, it applied to most of the unionized industries. The rest of the economy was covered by provincial laws, many of them simply extending P.C. 1003 provisions to labour disputes in provincial jurisdiction. These provisions were continued after the war under the National Emergency Transitional Powers Act. By 1948, all of the provinces had adopted a Labour Relations Act, under that name or another, containing the major features of P.C. 1003 and of the 1948 federal Industrial Relations and Disputes Investigation Act. In a sense, P.C. 1003 owed a lot to previous provincial laws, but subsequent legislation also owes a lot to P.C. 1003, especially with regard to the technical aspects of certification and the creation of labour boards.
10
Ruscalla, Gabriele. "Latest developments in conciliation and mediation in investor-state disputes." Revista Brasileira de Arbitragem 16, Issue 63 (October 1, 2019): 96–112. http://dx.doi.org/10.54648/rba2019033.
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Over the last decades, investor-State disputes have drastically increased in number. Most of these disputes are resolved through arbitration. The increase of the arbitration proceedings in investor- State matters is due to the high number of bilateral investment treaties and free trade agreements (“IIAs”) containing an arbitration clause which the dispute is based on. IIAs do not include only arbitration clauses: they also offer the parties other ways to settle their disputes through negotiation, conciliation and mediation. Research today suggests that conciliation and mediation have been rarely used in investor-State dispute resolution. The purpose of this article is to investigate the reasons why ADRs are still underused in the settlement of investor-State disputes, by analysing its pros and cons. The author will look into the current international legal instruments dealing with conciliation and meditation in investor-State disputes and will analyse the latest developments in the field. The article does not conclude that alternative dispute resolution methods should replace arbitration in investor-State matters: it rather suggests that, depending on the circumstances of the case, conciliation and mediation might be efficient mechanisms to settle disputes, alone or alongside arbitration procedures.
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Putri, Desi Aeriani, and Sri Walny Rahayu. "Mekanisme Perlindungan Konsumen Usaha Asuransi oleh Otoritas Jasa Keuangan." Kanun Jurnal Ilmu Hukum 21, no. 1 (May 27, 2019): 129–44. http://dx.doi.org/10.24815/kanun.v21i1.12412.
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Pasal 4 huruf c Undang-Undang Nomor 21 Tahun 2011 tentang Otoritas Jasa Keuangan disebutkan tujuan OJK agar keseluruhan kegiatan sektor jasa keuangan mampu melindungi konsumen antara lain di bidang usaha asuransi. Aturan lainnya disebutkan dalam Pasal 51 dan Pasal 52 Peraturan OJK Nomor 1 tahun 2013 Tentang Perlindungan Konsumen Sektor Jasa Keuangan disebutkan dalam melindungi konsumen OJK melakukan pengawasan secara langsung maupun tidak langsung terhadap penerapan perlindungan konsumen yang dilakukan pelaku usaha secara berkala. OJK melindungi tertanggung apabila adanya pengaduan dengan hanya memfasilitasi penyelesaian pengaduan sebagaimana diatur dalam Pasal 39 ayat (3) POJK No.1/2013. Upaya yang dilakukan yaitu mempertemukan para pihak untuk mengkaji ulang permasalahan yang timbul atas penolakan klaim. Apabila terjadinya kesepakatan maka kesepakatan dituangkan dalam Akta Kesepakatan. Namun, para pihak dapat menyelesaikan melalui pengadilan atau Badan Mediasi dan Arbitrase Asuransi Indonesia (BMAI) jika tidak tercapainya kesepakatan. Mechanism of Insurance Consumer Protection by the Authority of Financial Services The article 4 (c) of Law No. 21 of 2011 on Financial Services Authority (UU OJK) mentioned that the purpose of Financial Services Authority (OJK) is all of activities from all sector of OJK to be able to protect the consumers and society including insurance business sector. The other regulation which is mentioned in article 51 and article 52 of the regulation of Financial Services Authority (OJK) No. 1 of 2013 on the protection for the consumer of financial service sector mentioned that in term of protecting the consumer, the financial services authority (OJK) conducts direct and indirect supervision towards the implementation of consumer protection which is done by the business actors regularly. OJK protects the insured parties if there is a complaint by only facilitating the settlement of complaints as stipulated in Article 39 paragraph (3) POJK No.1 / 2013. The effort which is conducted is that to bring the parties together to review the problems arising from the rejection of claims. If an agreement occurs, the agreement should be stated in the deed of agreement. However, the parties could do the settlement through the court or the Indonesian Insurance Mediation and Arbitration Board (BMAI) if no agreement is reached.
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Семилютина, Наталья, and Natalya Semilyutina. "Corporate Disputes and Development of Alternative Disputes Resolution." Journal of Russian Law 3, no. 2 (February 4, 2015): 0. http://dx.doi.org/10.12737/7629.
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The article presents analysis of the practice of the corporate disputes resolution in commercial arbitration as well as in the state courts. According to the author the example “Maksimov case” which was often mentioned as an example of a corporate dispute resolved in commercial arbitration but set aside by the state justice proves that the line between corporate disputes and non-corporate dispute is almost invisible even after the legislation has been changed. The attempts to make corporate disputes non-arbitrable makes the regulation of the market relations unpredictable and spoils th investment climate. The so called “pocket arbitration” (or “corporate arbitration”) may be useful for the improvement of intercorporate relations, or resolution of the disputes among professionals. The “one-side” or “optional” arbitration clauses sometimes may serve as a form of investor protection of consumer protection as it gives the weak party advantage of choice of the form of the legal protection of its interests. According to the article, publication of arbitration rules and awards would make arbitration more transparent and more effective. The confidentiality should be preserved for the mediation proceedings. Author gives examples of various mediation proceedings. On the basis of the analysis the author makes recommendations for the improvement of the national legislation. Understanding arbitration and mediation as part of the judicial systems reform in Russia author recommends to use the international standards of regulation reflected in th UNCITRAL Model Arbitration Law.
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Zeller, Bruno, and Leon Trakman. "Mediation and arbitration: the process of enforcement." Uniform Law Review 24, no. 2 (June 1, 2019): 449–66. http://dx.doi.org/10.1093/ulr/unz020.
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Abstract Mediation is an important means of resolving international commercial disputes. The mediators whom the parties appoint can help to avoid contentious, dilatory and costly conflicts, including by resort to arbitration and/or litigation. The problem is the recognition and enforcement of mediated agreements often diverges from one state to the next. This makes it difficult to predict whether a mediated agreement will be enforced in a particular jurisdiction. The draft 2018 Singapore Mediation Convention [SMC] seeks to address this problem by providing uniform rules to govern the recognition and enforcement of mediated agreements. The obstacle faced by the SMC is that leading commercial states, notably in the EU, have resisted signing onto the SMC. They argue that mediation is, and ought to be, regulated domestically; and that the SMC is likely to marginalize domestic conceptions of mediation. This article evaluates the significance of mediation in resolving international commercial disputes. It stresses the growing importance of mediation in international commercial dealings, how the SMC can assist to fill a void in regulating such mediation, and how it can prevent commercial disputes from regressing into protracted arbitration with ensuing enforcement complications. Focusing on the SMC's rules governing the enforcement of mediation agreements, it examines how those rules are likely to operate in law, and their perceived strengths and limitations in practice.
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Vinogradova, Elena V. "Formation of the legal status of the arbitration court in the jurisdictional system of the Russian Federation." Gosudarstvo i pravo, no. 1 (2022): 83. http://dx.doi.org/10.31857/s102694520018275-3.
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The article contains a theoretical analysis of the doctrinal and legislative foundations of arbitration proceedings in the Russian Federation, as well as the legal status of the arbitration court in the system of protection of violated or disputed civil rights. The authors begin their research with a description of the existing methods of protecting rights. The arbitration court is referred by the legislator to the number of subjects exercising legal protection and is actually equated in its legal status with state courts. Despite the indisputable private law nature of the arbitration court, it has historically been and remains the only state-recognized subject of private law, whose decisions are subject to compulsory execution, if necessary. In addition, the decision of the arbitral tribunal, which has become binding on the parties to a legal conflict, is the basis for refusal to accept a statement of claim filed with a state court and containing a claim that is identical to that already considered by the arbitral tribunal. Therefore, it can be argued that arbitration is the only alternative to state legal proceedings (as opposed to mediation and all other ADRs). The difference between arbitration proceedings and mediation and other out-of-court conciliation procedures is shown. The issue of the correlation between arbitration courts and religious courts, as well as other public organizations providing services for the resolution and settlement of conflicts in the social sphere, has been analyzed. The conclusion is made about the exceptional position of arbitration courts, which do not allow attributing religious courts and other public organizations to them
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Golovko, OLGA, and Vladislava Druz. "Mediation and arbitration: a legal dilemma." Law and innovative society, no. 2 (15) (January 4, 2020): 73–79. http://dx.doi.org/10.37772/2309-9275-2020-2(15)-12.
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Problem setting. The active development of international trade in the 21st century requires the unification and consolidation of legislation and the creation of a unified law to enforce practice in areas related to international commercial arbitration and mediation. Economic disputes are an integral part of commercial relations. Arbitration as a mechanism for resolving conflicts is quite common. From French arbitrage translates as resolving a dispute by involving a mediator. At the same time, the parties may choose commercial mediation, consultation or negotiation. The implication is that it is quite difficult to choose only one method or the need to combine several methods to effectively resolve the dispute. Target of research. The purpose of the article is to analyze the main features of international commercial arbitration and mediation, determinate and establish peculiarities of legislative regulation in Ukraine and abroad. Analysis of recent researches and publications. A significant contribution to the study of this problem was made by O.M. Sadikov, N.O. Saniahmetova, M.M. Агарков, С.С. Alekseev, A.S. Vasiliev, O. A. Belyanevich, M. I. Braginsky, I. B. Zaverukha, I.E. Zamoysky, V.V. Kovalenko, G.F. Shershenev and others. Article’s main body. Ukraine has risen in the world rankings for the investment attractiveness «Doing Business 2020» – by 7 points and ranked 64th among 190 countries and significantly increased economic growth. This ensures the attractiveness of the investment market for Ukraine, which significantly affects the economic development of the country. For instance, a large number of agreements and obligations are concluded between the parties, in which the counterparties can be both the Ukrainian citizens and foreigners, which increases the growth rate of the Ukrainian economy. However, in the concluded agreements there are can be discrepancies, violations and improper fulfillment of obligations by contractors, which can turn into disrupts, interrelated contracts and even leads to a decrease in business activity and affects the reputation of such activities. To resolve such disputes, the parties have the opportunity to go to court or use alternative methods of resolving the conflict. At the discretion of the parties, alternative methods such as commercial mediation and international commercial arbitration are possible, which are designed to resolve disputes and disagreements arising from trading agreements. Conclusions and prospects for the development In conclusion, amendments in the legislation can help to precise the main advantages of international commercial arbitration and mediation, including: neutrality, centralized dispute resolution, final decision, confidentiality and time savings. That is why international commercial arbitration with the use of mediation is one of the most effective alternative methods of resolving commercial disputes. What is more, international arbitration and mediation as ways of alternative dispute resolution have been used since ancient times. However, recognition and enforcement at the level of state courts began in the 20th century – the signing of international conventions governing the procedure for enforcing and enforcing decisions, and states – parties to the conventions – ratified and enshrined in national law. In the future, there is an opportunity to improve the legislation by implementation of the new Act “On Mediation” and also by including mediation as a necessary part of arbitration process into the official rules.
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Schneider, Andrea. "The Impact of the Singapore Convention on the Development of Non-adjudicative Forms of International Dispute Resolution." Proceedings of the ASIL Annual Meeting 114 (2020): 123–26. http://dx.doi.org/10.1017/amp.2021.32.
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The impact of the Singapore Convention might affect both state and companies’ behaviors even more than encouraging mediation. We have had for a long time the phrase “bargaining in the shadow of the law,” and then more recently, in particular when we look at international investment, it is bargaining in the shadow of international arbitration. We know that a dispute could end up in arbitration and therefore impact behaviors before that. I want us to think about what bargaining might look like in the shadow of mediation.
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Yuspin, Wardah, and Abdul Aziz. "Business Dispute Settlement Through Mediation in State Courts and Arbitration Institutions." International Journal of Social Science Research and Review 5, no. 10 (October 7, 2022): 352–58. http://dx.doi.org/10.47814/ijssrr.v5i10.600.
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In social life, there are often differences in perceptions between humans, causing problems or disputes, whether minor or serious. Likewise in the relationship of economic activities or more commonly known as business relations. Not infrequently humans experience a clash and differences of opinion that lead to disputes. Various problems will always arise in business as long as humans run their business solely for profit, so there are often differences of opinion because the parties will not be harmed which will eventually lead to disputes. In the end, dispute resolution, especially business disputes, is often resolved through a trial in court through a lawsuit by one of the parties who feel aggrieved. However, what was expected from the settlement turned out to be unsatisfactory for the parties because the settlement through litigation sometimes took a long time to obtain legal certainty so that it actually harmed business people because of the loss of time, energy and materials. As an alternative to resolving business disputes, business actors have a tendency to avoid disputes in court and choose to use mediation or through arbitration institutions. This study will briefly describe the comparison of business dispute resolution through court mediation with settlement through arbitration institutions. The research was conducted through descriptive empirical legal research.
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Nitschke, Frauke. "Amicable Investor-State Dispute Settlement at ICSID: Modernizing Conciliation and Introducing Mediation." BCDR International Arbitration Review 6, Issue 2 (December 1, 2019): 381–432. http://dx.doi.org/10.54648/bcdr2019010.
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The International Centre for Settlement of Investment Disputes (ICSID) has embarked on a comprehensive reform of its existing dispute settlement mechanism and also added a set of mediation rules to its service offerings. This article reviews the proposed amendments to the ICSID conciliation mechanism and ICSID’s proposed investment mediation framework. In relation to the proposed amendments to the ICSID conciliation mechanism, the article analyzes key differences and similarities between ICSID Convention arbitration and ICSID Convention conciliation, before providing an overview of the amendments proposed to the conciliation framework and offering some conclusions. Subsequently, the article reviews the background against which the ICSID Mediation Rules have been developed and sets out the key differences and similarities between ICSID’s existing conciliation process and the newly proposed mediation mechanism. The article then provides a comprehensive overview of the Mediation Rules before offering conclusions and a positive outlook for amicable investor-State Dispute Settlement.
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Fremuth-Wolf, Alice. "Mediation and Arbitration in Vienna One-Stop-Shop Solution for Parties under the Vienna Rules and the new Vienna Mediation Rules." ASA Bulletin 34, Issue 2 (June 1, 2016): 301–21. http://dx.doi.org/10.54648/asab2016027.
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The Vienna International Arbitral Centre (VIAC) possesses more than 40 years of experience in international arbitration and conciliation. Due to the new Vienna Mediation Rules it may now administer not only arbitrations but also mediations and other ADR-proceedings where a neutral third person supports the parties in finding a solution for their dispute as well as combinations like Arb-Med(-Arb). The new rules entered into force on 1 January 2016 and are applicable to all proceedings initiated after 31 December 2015. The rules have been drafted by national and international mediation experts thus ensuring an exceptional high standard and state of the art solutions. The overriding principle when drafting the rules was party autonomy. The aim was to provide a functioning framework for parties and mediators alike, but all provisions may be altered by agreement provided their compatibility with the overall idea of the Vienna Mediation Rules is still pertained. As a further incentive for parties to use the new rules, VIAC administrative costs may be off-set in the later proceedings in case of subsequent mediation and arbitration proceedings between the same parties and concerning the same subject-matter in dispute. With its new Mediation Rules, VIAC is convinced to foster its position as the leading international arbitration institution in Central and Eastern Europe.
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Sussman, Edna. "The Advantages of Mediation and the Special Challenges to its Utilization in Investor State Disputes." Revista Brasileira de Arbitragem 7, Issue 27 (September 1, 2010): 54–67. http://dx.doi.org/10.54648/rba2010041.
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ABSTRACT: Mediation has become increasingly accepted as a useful dispute resolution mechanism. It has had great success in the United States and the United Kingdom and, in recognition of its value, the European Union adopted the Mediation Directive in 2008 to encourage the use of mediation procedures1. With today's global economy and the tremendous growth of cross border commerce, mediation is coming to the fore as it has long been a part of the societal culture in many nations. Moreover, the recent economic downturn, which has caused all parties to look for cost saving measures, is increasingly leading to greater utilization of mediation. The very success of mediation as a dispute resolution tool is itself creating its own momentum and leading to significant growth in the use of mediation in the resolution of private commercial disputes. The success of mediation has led to consideration of whether the application of mediation techniques should be encouraged and developed in the context of investor state disputes. This article reviews the many advantages mediation offers over direct negotiation and adjudication in arbitration or court, how those advantages apply to investor state disputes and the special challenges that investor state disputes present to the success of a mediation.
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Ferreira, Daniel, Elizaveta Gromova, Bianca Farias, and Cristiane Giovannini. "Online Sports Betting in Brazil and conflict solution clauses." REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION 4, no. 7 (July 15, 2022): 75–87. http://dx.doi.org/10.52028/rbadr.v4i7.5.
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Sports betting sites are now a reality in Brazil. According to Exame1 magazine, in 2018, it moved around 2 billion reais per year, and with the imminent regulation of Act n. 13.756 /2018, it should move approximately 8 billion reais annually. Online gambling will only reach the peak of its market, according to Rohan Miller,2 when consumers’ risk perception is reduced or neutralized. Questions such as who to look for if something goes wrong and which laws apply in the event of a conflict should be answered clearly by the betting sites’ Terms of Service (EULAs). Therefore, this article’s general objective will be to analyze the methods of conflict resolution included in the Terms of Use of the 9 (nine) main sports betting sites used by Brazilians, namely: 1. Bet365; 2. SportingBet; 3. Betboo; 4. Betway; 5. Rivalo. 6. 22Bet; 7. Betmotion; 8. Bumbet; 9. Bet9. As a specific objective, we will analyze the mediation and arbitration procedures as well as the statistics of two ODR (Online Dispute Resolution) service sites used by the betting sites: the e-Commerce Online Gaming Regulation and Assurance (e-Cogra - online mediation service ) and Independent Betting Adjudication Service (IBAS online arbitration service). Both legally based in England. We could realize that the Brazilian bettor, as a rule, does not read the terms of service and is unaware of the conflict resolution clause provided by the website. Besides, through data analysis from eCOGRA and IBSA, we can state that Brazilian gamblers who access ODR service providers are very rare both because they are unaware and because of linguistic difficulties. Also, the chances of success in resolving conflicts in favor of the consumer through mediation are greater than through online arbitration. In short, we can say that the model established by the UK Gambling Act and the Great Britain Gambling Commission is a model that guarantees the fundamental principles of both mediation and arbitration (impartiality, due process, and easy access). The fact that arbitration and mediation are not binding on bettors under any circumstances also guarantees the parties equal treatment.
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AYALEW, Negesse Asnake. "Long Rang Trans-Boundary Air Pollution Smelter Case Arbitration Outcome." International Journal of Environmental, Sustainability, and Social Science 1, no. 1 (March 31, 2020): 9–14. http://dx.doi.org/10.38142/ijesss.v1i1.11.
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The purpose of the investment is to bring benefits to the owners and sustainable development for the local community and for future generations. Arbitration is the process of resolving legal disputes between individuals, groups and countries. Every investment activity must ensure sustainable development to respect the rights of future generations. However; Canadian zinc smelting companies emit sulfur dioxide and cause air pollution in the United States. This created a dispute between Canada and the United States, then they agreed to settle it through a neutral arbitration court. As a result, this arbitration court ruling creates two principles of international environmental law primarily; the polluter pays the principle and obligation of the state not to damage the environment outside its jurisdiction. This arbitration award establishes the concept of Harm across borders and the principle of polluter pays to ensure the sovereignty of international environmental law. Therefore; if disputes arise between countries, they can resolve them through peaceful dispute resolution mechanisms such as negotiation, mediation and arbitration
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von Kumberg, W., J. Lack, and M. Leathes. "Enabling Early Settlement in Investor-State Arbitration: The Time to Introduce Mediation Has Come." ICSID Review 29, no. 1 (February 1, 2014): 133–41. http://dx.doi.org/10.1093/icsidreview/sit045.
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Konstantinidis, Ioannis. "Book Review: Emilia Justyna Powell. Islamic Law and International Law: Peaceful Resolution of Disputes." International Review of Law 9, no. 1 (December 1, 2020): 246–49. http://dx.doi.org/10.29117/irl.2020.0098.
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The settlement of inter-state disputes is an integral part of the international legal system. The obligation of States to settle their disputes peacefully is enshrined in Article 2(3) of the Charter of United Nations. In turn, Article 33 of the Charter identifies different means that can be employed by United Nations Member States with a view to peacefully resolving inter-state disputes, including, inter alia, “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement”.
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Stuart, Mark, and Miguel Martínez Lucio. "The New Benchmarking and Advisory State: The Role of the British Advisory, Conciliation and Arbitration Service in Facilitating Labour—Management Consultation in Public Sector Transformation." Journal of Industrial Relations 50, no. 5 (November 2008): 736–51. http://dx.doi.org/10.1177/0022185608096807.
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The aim of this article is to examine the changing role of the state in a more market-driven system of industrial relations, specifically in terms of the new roles that are being developed with regard to mediation, advisory and arbitration services. It focuses empirically on the role played by the British Advisory, Conciliation and Arbitration Service in facilitating the modernization of public sector employment relations. We show how the Advisory, Conciliation and Arbitration Service has played a `benchmarking' role that assists the development of more strategic forms of decision-making and cooperation in employment relations change, and identify the challenges of developing such an approach in the context of the shift towards a more decentralized and market-oriented system of public service delivery. In conclusion we assert that there is a new `advisory and benchmarking' state evolving based on a soft-market view of industrial relations, and that this mitigates (but is also in tension with) the harder market view within the state concerned with transforming the public sector.
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Rahman, Arif. "Penyelesaian Sengketa Konsumen melalui Badan Penyelesaian Sengketa Konsumen (BPSK) Kota Serang." Ajudikasi : Jurnal Ilmu Hukum 2, no. 1 (July 20, 2018): 21. http://dx.doi.org/10.30656/ajudikasi.v2i1.573.
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Consumer Dispute Settlement Board (BPSK) , as mentioned in the Rules No. 8 Years 1999 about Consumer Protection (UUPK) which is formed by the government, is the institution that responsible for holding and resolving disputes between consumers and businesses. The basic concept of the establishment of this institution is to handle the disputes between consumers and businesses. BPSK formation is intended to overcome the vagaries of litigation that tends to have long, formal and convoluted process with the alternative dispute resolution outside the court that is based on the principle of fast, simple and low cost. This research was conducted on Consumer Dispute Settlement Board (BPSK) Kota Serang by using normative juridical approach. The author conducted a review of literature regarding consumer protection law and the settlement of consumer disputes according to consumer protection codes which were collected and classified by the record in detail, systematic and focused on literature. Furthermore, the author conducted a descriptive analysis of data, in order to obtain a complete overview of the issues regarding the settlement of consumer disputes at BPSK Kota Serang.The Results of this research conducted by the author suggest a role of BPSK Serang in solving consumer disputes according to the Law No. 8 of 1999 on Consumer Protection can be resolved in three ways, which are conciliation, mediation and arbitration on the basis of selection and consent of the parties to the dispute. Verdict forms of conciliation methods and mediation are final and binding, without having to request fiat execution to the local court, while the form of the decision taken by arbitration method has to be requested fiat execution to the local Court for the arbitration award to have the executorial power. Additionally, arbitration decision of BPSK council also still has opportunities for the objection to the District Court, counted before passing 14 (fourteen) days after the arbitration decision was notified to the parties , for the party who did not accept the decision of the BPSK’s council.
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Syahyu, Yulianto. "Questioning the Indonesian Capital Market Arbitration Board." International Journal of Research and Review 9, no. 7 (July 30, 2022): 592–98. http://dx.doi.org/10.52403/ijrr.20220764.
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The state has an important role in national economic activities, including Indonesia. One of the policies taken by the government is to activate and encourage capital market activities in Indonesia to further develop as one of the pillars of economic success indicators in addition to banking and other direct investment. Although the role of the capital market in development is very close, potential disputes, violations or legal problems often occur. Violations of the law that occur in the capital market are certain to harm the capital market, including capital market investors. To overcome this problem, one of the policies taken by the government is to form a body that can specifically solve problems regarding the capital market. This is important, because law enforcement in the capital market aims to protect the interests of investors and the public from harmful practices carried out by both issuers and capital market legal consultants. Keywords: Indonesian Capital Market Dispute Resolution Institution, Capital Market Investors.
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Zarosylo, Volodymyr, Oleksandr Kaplya, Kyrylo Muraviov, and Dmytro Myniuk. "Application of forms of alternative dispute resolution in Ukraine." REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION 4, no. 7 (July 15, 2022): 231–40. http://dx.doi.org/10.52028/rbadr.v4i7.14.
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Resolving legal conflicts is one of the main tasks of any state. This function is in most cases entrusted to the judiciary, but as experience shows, the court alone cannot ensure the effective functioning of the legal dispute resolution system. For every democratic state, the availability of an alternative is important, and the subject of law must be able to choose the ways of resolving legal disputes. Today in the world there are such alternative ways of resolving disputes as: arbitration, mediation, consultation, negotiations, intersession, conciliation procedure and others. The purpose of the article is to identify the advantages and disadvantages of alternative dispute resolution methods. The article analyzes the literature on this topic, and also presents the features of alternative ways of dispute resolution, which allows us to identify their advantages and disadvantages as a legal procedure. The existence in most countries of the world of alternative dispute resolution is to some extent positive for the parties to the conflict, because dispute resolution through arbitration, mediation, negotiation, consultation and other alternative dispute resolution allows to resolve it without state intervention and they can be solved much faster. Alternative dispute resolution can to some extent be a source of savings money for the state, as they exist independently and do not require funds to provide them from the state, while in Ukraine the system of commercial courts annually requires a fairly large cost of maintaining such courts
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Benedskaya, O. A. "Arbitration and compliance verification." Actual Problems of Russian Law, no. 4 (May 30, 2019): 70–79. http://dx.doi.org/10.17803/1994-1471.2019.101.4.070-079.
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The article is devoted to the analysis of arbitration proceedings in the context of its participation in the implementation of judicial regulatory compliance verification. The fact that the arbitration court is bound by the requirement of legality and the need to implement casual regulatory control in accordance with the existing conflict of laws rules is substantiated based on the idea of the universal nature of the constitutional imperative of the rule of law and the Constitution of the Russian Federation and the understanding of the threefold nature of the arbitration court that combines social and jurisdictional, self-regulatory (law-forming) and mediation (conciliation) principles. At the same time, the legal nature of the arbitration proceedings should, in the author’s opinion, be disclosed not in a formal dogmatic manner or through commitment to the requirements of legal discipline as strict as in the state court, but on the basis of judicial activism and development of law in the context of social and business practice. The arbitration court may act contra legem to enhance the protection of the rights of the parties to the proceedings based on general, constitutional and sectoral principles of law. Faced with the applicable rule that violates the Constitution of the Russian Federation, the arbitration court must have the right to request the Constitutional Court of the Russian Federation (also in the form of a request obligation, if the decision of the arbitration court is final).
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Zarosylo, Volodymyr O., Oleksandr M. Kaplya, Kyrylo V. Muraviov, Dmytro I. Myniuk, and Olena Yu Myniuk. "Alternative ways of resolving legal disputes and their application in Ukraine." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 4 (December 23, 2021): 232–38. http://dx.doi.org/10.37635/jnalsu.28(4).2021.232-238.
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Resolving legal conflicts is one of the main tasks of any state. This function is in most cases entrusted to the judiciary, but as experience shows, the court alone cannot ensure the effective functioning of the legal dispute resolution system. For every democratic state, the availability of an alternative is important, and the subject of law must be able to choose the ways of resolving legal disputes. Today in the world there are such alternative ways of resolving disputes as: arbitration, mediation, consultation, negotiations, intersession, conciliation procedure and others. The purpose of the article is to identify the advantages and disadvantages of alternative dispute resolution methods. The article analyzes the literature on this topic, and also presents the features of alternative ways of dispute resolution, which allows us to identify their advantages and disadvantages as a legal procedure. The existence in most countries of the world of alternative dispute resolution is to some extent positive for the parties to the conflict, because dispute resolution through arbitration, mediation, negotiation, consultation and other alternative dispute resolution allows to resolve it without state intervention and they can be solved much faster. Alternative dispute resolution can to some extent be a source of savings money for the state, as they exist independently and do not require funds to provide them from the state, while in Ukraine the system of commercial courts annually requires a fairly large cost of maintaining such courts. Resolving disputes through alternative methods also speeds up their resolution, but in some cases the process itself can be more expensive
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Parra, Antonio R. "ICSID and Investor-State Petroleum Disputes in the MENA Region." BCDR International Arbitration Review 7, Issue 1 (June 1, 2020): 225–30. http://dx.doi.org/10.54648/bcdr2021023.
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MENA countries have long been important participants in the ICSID system. Several ICSID “firsts” are associated with MENA countries: the first signatory of the ICSID Convention, the first ICSID case, and the first “arbitration without privity.” This note examines the current (as of the end of 2020) ICSID caseload of MENA countries, including the sectoral distribution of the cases. Paradoxically, for a region so rich in petroleum resources, relatively few of the cases have involved oil and gas disputes.The note discusses possible reasons for this. It concludes by suggesting that in appropriate cases MENA countries might find ICSID’s proposed new mediation mechanism an attractive option for the settlement of petroleum investment disputes.
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MÁRQUEZ CHAMIZO, ESPERANZA, and AUGUSTO PANSARD ANAYA. "Enforceability of the agreements reached in the European Union. Some reflections." Revista Jurídica de Investigación e Innovación Educativa (REJIE Nueva Época), no. 10 (July 1, 2014): 37–70. http://dx.doi.org/10.24310/rejie.2014.v0i10.7717.
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The legal system in Spain is undergoing a process of convergence with our neighboring countries in the European Union. Directive 52/2008 on mediation in civil and commercial matters has been recently transposed by the Law 5/2012, of July 6th. This is the first rule about civil and commercial mediation in the state level and it happens when mediation begin to be considered as an alternative to prosecution or via arbitration, as it involves a system of conflict resolution, that can help to get the right to judicial protection, keeping the Courts as a last resort andturning the citizen into active protagonist of the solution of their own conflict.This paper aims to analyze the questions about the mediation agreement in European Union, their enforceability and binding effects, the procedure to be followed or the effectiveness of the agreements reached therein.The gradual consolidation of mediation between legal operators involves reflection on the model adopted in our system, because this method has meant a great improvement in all Member States legal system. It is necessary to promote the culture of mediation to bring this institution to all sectors of society involved.
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Claxton, James M. "Litigating, Arbitrating and Mediating Japan–Korea Trade and Investment Tensions." Journal of World Trade 54, Issue 4 (August 1, 2020): 591–614. http://dx.doi.org/10.54648/trad2020026.
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In July 2019, Japan introduced measures tightening export restrictions to South Korea on three chemicals critical to the manufacture of consumer electronics. The restrictions prompted an animated response by the Korean government that has included WTO consultations and threats to terminate an intelligence-sharing agreement with Japan. Meanwhile, the controversy has filtered down to the public with boycotts of Japanese products in Korea. Tension between the states has been unusually high since late 2018 when the Korean Supreme Court affirmed a judgment against Japanese companies accused of forcing Korean nationals to labour for them during Japan’s colonial rule. Japan argues that such claims are precluded by a 1965 treaty normalizing post-war relations. While Japan states that its trade restrictions were not motivated by the judgment, the disputes have together contributed to the worst breakdown in cross-border relations in five decades. This article evaluates Korea’s trade claims against Japan, means of resolving them, and the challenges that the claims face in the WTO dispute settlement system. The article also considers claims from the Japanese side through the International Court of Justice (ICJ), inter-state arbitration, and investor-state dispute settlement. We conclude that formal mediation offers an effective means to facilitate negotiations and centralize the WTO and other treaty disputes in a single forum involving multiple stakeholders. WTO, Japan, Korea, ISDS, mediation, arbitration, export, international trade law, investment treaties
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Goetz-Charlier, Alexandra. "Mediating Investor-State Disputes in Free Trade Agreements: An Evaluation of the EUs Proposal." European Foreign Affairs Review 24, Issue 1 (February 1, 2019): 81–100. http://dx.doi.org/10.54648/eerr2019006.
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Foreign investment is an important economic driver, and thus typically benefits from substantial legal protection under international investment agreements (IIAs). When a dispute arises between a foreign investor and a State, the main dispute settlement mechanism provided under IIAs is arbitration, a system which has raised controversy both within legal circles and public opinion. Against this background, the EU recently proposed to use mediation more frequently, especially for disputes arising out of the investment chapters of EU free trade agreements. This article argues that this proposal may be beneficial, primarily because it assuages the strict legalism which characterizes this area of the law. Yet, mediation is a subtle process which purports to instil a dialogue between disputants. This article takes the view that this dialogue may, however, be greatly hindered by political factors. It posits that two fundamental elements of mediation theory have been insufficiently considered within the EU’s proposal, namely, the nature of the relationship between the parties, i. e. the asymmetrical relationship between the investor and the State, and the influence that external stakeholders may have on the resolution process. In this respect, the role that the European Commission will play is axiomatic to the efficiency of this mechanism.
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Zahro, Ana Latifatuz, Muhammad Iqbal Fasa, and A. Kumedi Ja’far. "Analisis Penyelesaian Sengketa Ekonomi Syariah Secara Non Litigasi." Reslaj : Religion Education Social Laa Roiba Journal 4, no. 2 (December 17, 2021): 336–52. http://dx.doi.org/10.47467/reslaj.v4i2.716.
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The aims and objectives of the research are to find out the practice of resolving sharia economic disputes in a non-litigation manner and the application of sharia economic dispute auctions. In order to achieve the aims and objectives, this research uses a normative juridical research method with an approach that refers to the Qur'an, Al-Hadith, ijtihad, legal theory, legal principles and legislation. Sources of data are obtained from the Qur'an, Al-Hadith, books, laws and regulations, court decisions, and so on as long as they are interrelated. The practice of resolving sharia economic disputes in a non-litigation manner can be pursued by arbitration, namely through the Sharia Arbitration Board (“Basyarnas-MUI”) and by alternative dispute resolution methods, namely through Consultation, Negotiation, Mediation or Expert Assessment. This is related to arbitration through the Basyarnas-MUI for the procedures and procedures that have been regulated. Meanwhile, alternative dispute resolution by means of Consultation, Negotiation, Mediation or Expert Assessment has not been sufficiently regulated. Despite this, there is already a National Committee for Islamic Economics and Finance (KNEKS) whose function is to formulate and provide recommendations for solving problems in the Islamic economy and finance sector. In addition to that, there are also arbitration institutions and other alternative dispute resolution, but these institutions have not specifically regulated the non-litigation settlement of sharia economic disputes. The application of sharia economic dispute auctions can be carried out on material guarantees by means of parate execution, executive titles or underhand sales. However, against the auction mechanism, the debtor can still take legal action, namely the cancellation of the auction or resistance / objection to the auction. This of course, apart from being less effective, it does not provide as intended the purpose of the law and legal protection for interested parties.
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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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Berzin, O., E. Shliagina, and L. Ying. "A Comparative Analysis of the Legal Regulation of International Commercial Arbitration in Russia and Mainland China." BRICS Law Journal 9, no. 3 (September 11, 2022): 4–38. http://dx.doi.org/10.21684/2412-2343-2022-9-3-4-38.
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This article examines international commercial arbitration, one of the most popular methods for the resolution of disputes that arise in the context of international commercial relations. The volume of trade between Russia and China has been gradually increasing in recent years, which testifies to the fact that the study of international commercial arbitration legal regulation in both nations is extremely relevant. The authors examine the concept of international commercial arbitration entities, as well as the sources of legal regulation that govern their establishment and operation in Russia and Mainland China. In addition, the procedures for case consideration, the elaboration of arbitration agreements, the rules for the creation of an arbitration commission, the requirements for arbitral awards and other aspects are investigated. The authors come to the conclusion that the regulations governing international commercial arbitration are similar in the two countries and are based on international law and national legal acts. Both Russia and China have adopted the norms outlined in the United Nations Commission on International Trade Law (UNCITRAL) Model Law into their legal systems although to different degrees. Both countries provide similar arbitration agreement norms and support the arbitration clause autonomy principle. The difference lies in the fact that China does not follow the competence-competence principle (the arbitrators’ power to determine their own competence to consider a certain dispute). Instead, the issue is referred either to the arbitration commission or to the state court for resolution. On the other hand, arbitrators in Russia have the right to determine their competence by themselves. According to Chinese law, a party requires arbitration court mediation in order to be able to submit a request for provisional protection measures to the state court, while under Russian law adirect request is allowed. In China, the norms for the recognition and enforcement of aforeign arbitration award by the court do not provide for the court’s ruling to be challenged; the refusal of the recognition and enforcement shall be possible only after the award has been considered by the Supreme People’s Court of the People’s Republic of China. In Russia, the legislation allows for both challenging and refusing the decision to recognize and enforce the award.
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Vennikova, V. V. "Disputes in the sphere of social security: ways of prevention, essence and methods of resolution in the countries of the European Union." Analytical and Comparative Jurisprudence, no. 3 (September 28, 2022): 98–102. http://dx.doi.org/10.24144/2788-6018.2022.03.17.
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The article examines the European experience of considering disputes in the field of social security, the ways of their prevention, the essence and methods of resolution, the possibility of borrowing positive assets of foreign states in the law enforcement practice of Ukraine is considered.
Having analyzed the European experience of resolving disputes in the field of social security, three ways of their possible settlement are distinguished: 1) with the help of special courts on social security issues (sectoral justice); 2) through a civil process in general courts; 3) by means of conciliation and arbitration procedures.
It was determined that a social model has developed in European countries, which is based on such values common to all EU member states, such as: a close connection between the level of economic development and social progress; high level of social security, which is universal in nature; developed legislation; equal opportunities and fight against discrimination; production democracy; dialogue of social partners within the framework of contractual relations; availability of developed social infrastructure; the key role of the state in solving social problems; the struggle for employment and eradication of the phenomenon of social rejection and poverty; decent salary; social justice and solidarity in society. These basic values also formed the basis of consideration and resolution of disputes in the field of social security. The listed values should form the foundation of the Ukrainian theory and practice of social disputes. It was determined that the national specifics and practice of each European state provide for the use of various methods of resolving social disputes with recourse to social courts, reconciliation services, mediation, arbitration and mediation. The activity of social courts is based on the principles of tripartite cooperation (tripartism). Court cases are considered by a panel consisting of a professional judge and two non-professional judges.
In addition, state mediation and mediation are effective measures for the pre-trial resolution of social disputes in the EU countries. They contribute to the relief of the judicial system, saving time and financial resources of the parties to the dispute. These institutions are little known for Ukraine and, at the same time, promising.
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Parra, Antonio R. "The 2022 Amendments of the Regulations and Rules of the International Centre for Settlement of Investment Disputes: Change and Continuity." Journal of World Investment & Trade 23, no. 5-6 (December 16, 2022): 717–36. http://dx.doi.org/10.1163/22119000-12340267.
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Abstract This article examines the amendments of the Regulations and Rules of the International Centre for Settlement of Investment Disputes (ICSID) recently approved by the Administrative Council of ICSID. The amendments are of all regulations and rules for proceedings that ICSID has long been authorized to administer – ICSID Convention and Additional Facility conciliation and arbitration and fact-finding proceedings. As part of the amendments, ICSID has also issued a new set of mediation rules. For context, the article briefly recalls previous amendments of the Regulations and Rules before discussing highlights of the newly amended Regulations and Rules. A concluding section points out that the amendments, which respond to many criticisms of investor-State arbitration under investment treaties (ISDS), will generally apply to all ICSID ISDS arbitrations initiated on or after the effective date of the amendments (1 July 2022).
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Mattli, Walter. "Private Justice in a Global Economy: From Litigation to Arbitration." International Organization 55, no. 4 (2001): 919–47. http://dx.doi.org/10.1162/002081801317193646.
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Drawing on the analytical framework developed by Barbara Koremenos, Charles Lipson, and Duncan Snidal in the Rational Design project, I seek to shed light on the striking institutional differences among the various methods of international commercial dispute resolution for private parties. These methods include recourse to public courts and more frequently to private international courts, such as the International Court of Arbitration of the International Chamber of Commerce or the London Court of International Arbitration, as well as recourse to so-called ad hoc arbitration and alternative dispute-resolution techniques, such as conciliation and mediation. The key institutional dimensions along which these methods of international dispute resolution vary are (1) procedural and adaptive flexibility, and (2) centralization of procedural safeguards and information collection. I explain why different methods of international commercial dispute resolution are selected. I argue that these methods respond to the varying institutional needs of different types of disputes and disputants. Such needs can be explained in terms of the severity of the enforcement problem, uncertainty about the preferences or behavior of contractual partners, and uncertainty about the state of the world.
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Islamiyati, Dewi Hendrawati, Aisyah Ayu Musyafah, Asma Hakimah, and Ruzian Markom. "Religious Practices of Land Endowment: Examining Reform and Dispute Resolution Alternatives of Land Waqf in Indonesia and Malaysia." International Journal of Public Policy and Administration Research 9, no. 3 (November 28, 2022): 71–78. http://dx.doi.org/10.18488/74.v9i3.3204.
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The research aimed to analyze the land waqf dispute resolution mechanisms in Indonesia and Malaysia to provide the Indonesian government with ideas regarding land waqf dispute resolution laws. The approach adopted was a comparative study that highlights the mechanisms and models of waqf dispute resolution in Indonesia and Malaysia. The results show that the Indonesian waqf dispute resolution mechanism comprises two approaches: juridical and sociological. The juridical approach is based on Waqf Law No. 41 of 2004, Article 62. Meanwhile, the sociological approach is based on local wisdom and policies derived from Islamic law. In comparison, the mechanism for resolving waqf land disputes in Malaysia consists of two routes: the non-litigation channel, which consists of negotiation, mediation, and arbitration, and the litigation path, via the sharia court. In the Malaysian mediation pathway, the mediator and the advocacy institution are State Islamic Religious Councils (SIRCS), assisted by waqf managers and experts. An arbitration mechanism is often chosen because the management of waqf land is, for about 40 percent, associated with business, commerce, industry, and property. The similarities between the two countries are that they are committed to resolving waqf land disputes based on applicable law, the concept of justice, and the desire to protect human rights, minimize expenses, build good relationships after disputes, and provide advocacy for the rescue of the donated land assets.
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Syarifudin, Ahmad. "EXPLORING THE PROGRESSIVE LAW IN THE CONSTITUTIONAL COURT DECISION NO. 93 / PUU-X / 2012 ON TESTING ARTICLE 55 VERSES (2) AND (3) LAW NO. 21 OF 2008 CONCERNING SHARIA BANKING." Mu'amalat: Jurnal Kajian Hukum Ekonomi Syariah 11, no. 2 (December 9, 2019): 215–33. http://dx.doi.org/10.20414/mu.v11i2.2133.
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After the Constitutional Court issued decision No. 93/PUU-X/2012 for testing Article 55 paragraph (2) and (3) of Law No. 21 of 2008 concerning Sharia Banking to Article 28D paragraph (1) of the 1945 Constitution, the Religious Court has regained its authority to settle Islamic banking disputes. In the ruling, the Constitutional Court stipulates that the explanation of Article 55 paragraph (2) is contrary to the 1945 Constitution, and at the same time does not have binding legal force.
The cause of the unconstitutionality occurs because the explanation of Article 55 paragraph (2) of the a quo law contains several dispute resolution forums, namely deliberation, banking mediation, National Sharia Arbitration Board or other arbitration and through a general court which makes the court conclude it will cause uncertainty because of the Paragraph (1) has clearly mentioned the Religious Court.
This paper wants to know the urgency of progressive law in the Constitutional Court's decision No. 93/PUU-X/2012 also wants to know whether in the Constitutional Court's decision No. 93/PUU-X/2012 has implemented progressive laws.
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MUKHAMETZARIPOV, ILSHAT A. "RELIGIOUS COURTS IN THE USA AND CANADA: TYPES, MAIN FUNCTIONS AND INTERACTION WITH THE SECULAR STATE." Study of Religion, no. 3 (2020): 88–96. http://dx.doi.org/10.22250/2072-8662.2020.3.88-96.
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The article reveals the current situation around religious courts, arbitrations and mediation institutions in the states of North America, analyzes their structure, main functions and activities. Catholic and Orthodox church courts, courts and mediation institutions in Protestant churches and denominations, rabbinical and Sharia courts, conflict resolution bodies of Buddhists, Hindus, Mormons, Scientologists are active in the United States. Generally, US authorities do not interfere in their activities if there are no violations of the rights and freedoms of citizens, but sometimes at the state level (Arizona, Wyoming, Indiana, Oklahoma, Tennessee, Texas) the use of religious norms in arbitration courts is prohibited. A similar situation has occurred in Canada, where official religious courts operate legally, but in the provinces of Ontario and Quebec the activity of religious courts in the field of family relations was limited (in many respects due to fears of the formation of a parallel “Sharia justice”) The opinions of North American researchers on this issue are divided: some consider the activities of religious courts as a violation of the principle of secularism and think it necessary to ban their activities, others regard them as the realization of religious freedoms and advocate their preservation in the legislative framework...
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Elfstrom, Manfred. "Two Steps Forward, One Step Back: Chinese State Reactions to Labour Unrest." China Quarterly 240 (March 12, 2019): 855–79. http://dx.doi.org/10.1017/s0305741019000067.
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AbstractWhat impact is the current rise in workplace conflict having on governance in China? This article argues that, over time, protests are driving the state in two directions at once: towards greater repression and greater responsiveness. Using an original dataset of strikes, protests and riots by Chinese workers between 2003 and 2012, along with government budgetary and judicial statistics, the article demonstrates that significant, positive correlations exist at the provincial level between increased unrest on the one hand and both increased spending on the People's Armed Police (repression) and increasing numbers of pro-worker and split decisions in mediation, arbitration and court cases (responsiveness) on the other. Feedback effects exist with regard to responsiveness, though: more cases in which workers win something in turn seem to spur greater unrest. The article closes by noting the changes since Xi Jinping took office and examining the implications of the findings for China's political development.
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Ismailova, R. Sh. "Peculiarities of Establishing Mediation in Uzbekistan as an Outof-Court Dispute Resolution." Moscow Journal of International Law, no. 1 (July 25, 2020): 123–32. http://dx.doi.org/10.24833/0869-0049-2020-1-123-132.
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INTRODUCTION. The main purpose of current article is to analyze the measure taken in order to successfully implement mediation in the Republic of Uzbekistan and identify areas in need of further reform. This article reflects the existing situation on the implementation of the mediation procedure in the Republic of Uzbekistan, reveals the existing legislative framework and draws attention to the gaps. It contains changes in legislation made in connection with the entry into force of the Law “On Mediation”, namely, changes made in the Civil Procedure, Civil, Tax, Economic Procedure Codes, as well as to the Law “On Domestic Arbitration Courts”.MATERIALS AND METHODS. In preparation of the article the author studied the experience of Singapore, China, Germany, Italy and other states on implementation of mediation, there is a comparison of court annexed and private mediation, the advantages and disadvantages of mediation have also been noted, as well as features of the introduction of mediation have also been identified. There are several methods that have been applied during the research such as comparative, empiric, historical and legal ones.RESEARCH RESULTS. The article reveals some problems of introducing mediation at the present stage of development of society, briefly reveals the content of the law “On Mediation”, which regulates relations connected with the use of mediation to disputes arising from civil law relations, including in connection with business activities, as well as individual labor disputes and disputes arising from family relations. This article also provides some recommendations for the successful implementation of the institute of mediation in Uzbekistan, as well as the popularization of this institution among the population.DISCUSSION AND CONCLUSION. In the article there is the recommendation to develop a strategy for the development and promotion of mediation, to train all students of the jurisprudence in the “Mediation” discipline, to identify commercial mediation as one of the training directions for mediators, to introduce judicial mediation and to make the mediation procedure mandatory for a certain types of cases. First session of mediation is advised to be obligatory and the continuation of the procedure is left to the will of the parties. Besides that, there is a proposal to amend the legislation noting that organization with state ownership should add mediation clause to their contracts.
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Akhmetova, Irina N. "Self-defense and its institutions in the mechanism of realization of the constitutional right to the free use of one's abilities and property for entrepreneurial activity." Law Нerald of Dagestan State University 42, no. 2 (2022): 54–59. http://dx.doi.org/10.21779/2224-0241-2022-42-2-54-59.
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The right to freely use one's abilities and property to carry out entrepreneurial activity, guaranteed by the Constitution of the Russian Federation, imposes on the State the obligation to create favorable conditions for a market economy. Constructive dialogue and joint efforts on the part of the state and the business community ensure the adoption of legitimate decisions, stimulate entrepreneurial activity. The business protection tools available today are the key to the development of the economy and competition in the country. Self-defense is one of the ways in which entrepreneurs can quickly and effectively restore violated rights and interests. The article is devoted to the analysis of actual means of self-defense (legal services, arbitration proceedings, compliance management, mediation, etc.) used by persons exercising the constitutional right to entrepreneurial activity
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Kubatko, S. A., and I. M. Vilgonenko. "FORMS OF EXECUTABLE SETTLEMENT OF TAX DISPUTES: LEGAL POLICY OF IMPROVEMENT." Law Нerald of Dagestan State University 37, no. 1 (2021): 62–65. http://dx.doi.org/10.21779/2224-0241-2021-37-1-62-65.
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Every citizen of the Russian Federation in everyday life directly or indirectly becomes a participant in tax relations, which are regulated by the Tax code. Since legal acts and laws are quite ambiguous, and the activities of the state are associated with the seizure of property from individuals and legal entities, the emergence of tax conflicts is inevitable. Compromise forms of pre-trial settlement of conflicts are particularly relevant in modern tax relations. They contribute to the emergence and development of trust and fruitful relations between citizens and representatives of tax authorities on the basis of cooperation. The introduction of such procedures as direct negotiations between the parties, mediation and arbitration allow not only to resolve tax disputes promptly, minimize the costs of the parties, reduce the periods of consideration, but also contributes to the unloading of arbitration courts. This article discusses all forms of pre-trial settlement of tax disputes, examines their strengths and weaknesses, the synergetic effect of these forms with preventive and Advisory methods, as well as the introduction of new procedures for the settlement of tax disputes.
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Sari, Dewi Utami. "PENYELESAIAN SENGKETA PERBANKAN SYARIAH DI INDONESIA." Al-Munqidz : Jurnal Kajian Keislaman 8, no. 2 (July 28, 2020): 157–71. http://dx.doi.org/10.52802/amk.v8i2.236.
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The development of financial institutions and syaria banking is so fast, but in terms of legal regulations it still lags. Among the regulations that still need to be improved is the regulation of resolute dispute syaria banking. Where in this case there is still a juridical problem there is dualism of judicial authority in the resolute dispute syaria banking. The results showed that the dispute resolution of syaria banking in Indonesia can be done through two ways, both litigation and non-litigation.Religion Court has the authority to resolve syaria banking disputes on litigation ways, while the non-litigation can be done through deliberation, banking mediation. National Sharia Arbitration Board is the most strategic forum for resolving disputes about banking Sharia outside the court because it could resolve the dispute quickly, simply and at low cost.
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Alaloul, Wesam S., Mohammed W. Hasaniyah, and Bassam A. Tayeh. "A comprehensive review of disputes prevention and resolution in construction projects." MATEC Web of Conferences 270 (2019): 05012. http://dx.doi.org/10.1051/matecconf/201927005012.
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The construction industry is complex, fragmented, dynamic and involves many parties in an adversarial relationship. This makes disputes almost inevitable in any construction project. This paper aims to provide a comprehensive review of the adopted methodologies in resolving disputes that arise in the construction projects. The paper evaluates and classifies the different methods of disputes resolution. A comparison was conducted between the advantages and disadvantages of each method. The paper distinguishes between the traditional method of disputes resolution; litigation and Alternative Dispute Resolution (ADR) methods such as arbitration, mediation, med/arb, mini-trial and dispute review board. In conclusion there is no best way to solve all kind of disputes in construction projects, however, a general step by step process of how disputes should be addressed is finally presented.
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Soltanzadeh, Sajad, and Ali Darzi-Naftchali. "Investment Disputes and Article 139 of the Iranian Constitution." ASA Bulletin 35, Issue 2 (May 1, 2017): 334–39. http://dx.doi.org/10.54648/asab2017029.
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With regard to the promotion and protection of foreign investment and the settlement of related disputes, the Islamic Republic of Iran (Iran) has enacted a special law entitled Foreign Investment Promotion and Protection Act (FIPPA) and has also signed more than 60 Investment Treaties, which refer investment disputes to international arbitration subject to certain conditions. On the other hand, Article 139 of the Constitution of Iran has conditioned referral to arbitration of disputes on public and state properties (including foreign investment) to the permission and approval of the Board of Ministers and the Parliament of Iran. These conflicting rules, apparently, create an uncertain legal environment for foreign investment in Iran.