Against Settlement in Transnational Business and Human Rights Litigation

Traditional international legal scholarship often distinguishes between diplomatic and legal methods of dispute resolution. However, this article posits that this division is often artificial, as international disputes are inherently shaped by intertwined legal and political dimensions, influencing strategic choices of states in dispute resolution. Framed by the concept of politique juridique extérieur, the study explores how states navigate various factors to align their dispute resolution strategies with their broader foreign policy objectives. Focusing on the Americas, this research examines the utilization of alternative dispute resolution (ADR) mechanisms within the context of the American Treaty on Pacific Settlement (Pact of Bogotá). The article addresses two primary research questions: (i) whether political factors influence the decision to resort to ADR, and (ii) the role of legal instruments establishing ADR in the Americas, specifically whether their existence determines or influences the choice of a given ADR mechanism. The article is structured in two main parts. Part I analyzes the interplay of law and politics in the selection of dispute resolution mechanisms, examining the conventional distinctions between diplomatic and adjudicatory means, the embeddedness of legal disputes in political contexts, and the complex factors guiding choices of the states. Part II focuses on the selection of ADR mechanisms in the Americas, specifically analyzing the dispute resolution provisions of the Pact of Bogotá and the observed infrequent direct use of its ADR procedures. The main argument presented is that the choice of dispute resolution strategy in the Americas, including ADR, is significantly context-dependent and driven by political considerations and foreign legal policy objectives, rather than solely by the availability of legal instruments. While the Americas boast a history of including ADR in treaties, the practical application, particularly of the Pact of Bogotá, reveals a preference for political mechanisms within the Organization of American States (OAS) and, notably, the use of the Pact to establish jurisdiction before the International Court of Justice (ICJ), over direct reliance on its ADR provisions. In conclusion, the article finds that political factors do indeed influence the decision to utilize ADR. While legal instruments establishing ADR exist in the Americas, their mere presence does not guarantee their active use. Instead, the more readily accessible and politically established frameworks of the OAS often provide the primary avenues for peaceful dispute settlement, with the Pact of Bogotá being more frequently employed for accessing the ICJ. Furthermore, the research acknowledges that the often-primary role of political mechanisms over treaty-based ADR methods may stem from the inflexible structure of the Pact’s provisions, which can limit the scope for states to employ ADR means. Keywords: International Dispute Settlement. Alternative Dispute Resolution (ADR). Americas. Pact of Bogotá.

Alternative Dispute Resolution (ADR) are the methods of dispute resolution other than courtroom litigation. Reconciliation, mediation, arbitration, and traditional dispute settlement are all recognized ADR mechanisms under Kenya's constitution which is supreme. ADR mechanisms thus come into play in order to resolve disputes outside of court, such as arbitration or mediation. Trade Unions are associations of employees with the sole responsibility of negotiating for better conditions of work as well as social positions of employees through collective bargaining. Their approach can also be both constructive and destructive to organizational performance. (Kariuki, 2018). In Kenya, Alternative dispute resolution (ADR) mechanisms were formally recognized after the promulgation of the constitution in 2010 under Article 159(2)(C). The article prescribed that courts should be guided by the need to promote ADR. This was necessitated by delays in the resolution of employee complaints leading to poor organizational performance and failure by institutions to fully implement Collective Bargaining Agreements. There has also been a steady rise in labor disputes in Kenya, for instance, the rampant disputes and strikes witnessed from Universities Academic Staff, Kenya Medical practitioners and other unions. The study objective was to determine the influence of perceived benefits in the adoption of ADR mechanism by Trade Unions in Kenya. The study was done at Kenya National Union of Teacher Union in Kenya. Theoretically, the study was anchored on Reason Action Theory (TRA) and Social Influence Theory (SIT). The study found out that perceived benefits significantly influence adoption of ADR mechanisms in Trade Unions in Kenya. The study concluded that a policy document needs to be put in place to enlightened and guide the Trade Unions Officials on the adoption of ADR mechanisms in resolving industrial disputes. Since it was observed some respondents had less or no knowledge on the adoption of ADR by Trade Unions in Kenya. The study recommends Trade Unions should adopt the use of ADR mechanisms in resolving industrial disputes, ensure organizations are given more knowledge on the benefits of adopting ADR mechanisms, create policies on direction of ADR mechanisms, as well as investing in the right knowledge on adoption of ADR mechanisms to boost on adopting ADR mechanisms by Trade unions in Kenya. The study also gives suggestions for further research.

This article outlines the gender dynamics that determine men and women’s involvement in Alternative Dispute Resolution (ADR) Mechanisms in Kapsokwony, Bungoma County. It highlights that while ADR mechanisms are normally considered participatory and inclusive in Kenya, the reality however is that they remain male dominated. The study was based on a mixed research method whose methodology involved research survey, interview, and Focus Group Discussions. Findings from studies carried out across the global confirm that men continue to have upper hand over women with regards to participation in conflict resolution using ADR (Alternative Dispute Resolution) mechanisms for number of reasons. The situation was found not different in the context of Kapsokwony, a sub-county of Bungoma County in Kenya. This study discussed the multidimensional factors that continue to contribute to men upper hand over women in resolving conflict through ADR mechanisms. Keywords: Gender equality, Participation, Exclusion, Alternative Dispute Resolution, conflict Resolution DOI: 10.7176/RHSS/10-21-05 Publication date: November 30 th 2020

The impacts of the Coronavirus disease otherwise known as the Covid-19 pandemic on the human race cannot be overemphasised. The outbreak of the Covid-19 pandemic has not only led to a paradigm shift from the old order to a new norm but also increased the deployment of Information and Communication Technology (ICT) to almost all spheres of human endeavour, including the administration of justice and Alternative Dispute Resolution (ADR) mechanisms. Most of the measures adopted by stakeholders to fight the scourge otherwise referred to as Covid-19, protocols such as social distancing, restriction of movements, restriction of physical gatherings, travel bans and total lockdown among others, stall dispute resolution proceedings thereby affecting access to justice. Hence, Online Dispute Resolution (ODR) was adopted and applied in many jurisdictions to complement, strengthen and serve as an alternative to the conventional litigation and ADR mechanisms during the Covid-19 pandemic. Although ODR existed before the outbreak of the Covid-19 pandemic as a dispute resolution mechanism, it was not as pronounced and widely utilised as it has been during and after the Covid-19 pandemic in Nigeria. This article adopts the doctrinal methodology and the qualitative approach to examine the significance and benefits of ADR and ODR mechanisms in the resolution of disputes, the effects of the Covid-19 pandemic on the world order and the administration of justice and dispute resolution mechanisms in Nigeria as well as the legal and technological responses to it. The article finds that prior to the outbreak of the Covid-19 pandemic, the existing legal framework for dispute resolution in Nigeria did not make any clear and express provisions for the use of ODR, and argues that the outbreak of the Covid-19 pandemic and advancement in ICT necessitated the application of ODR to complement and serve as an alternative to ADR mechanisms and litigation. The article concludes by suggesting legal and policy reforms for the effective application and operation of ODR in Nigeria.

This chapter offers an in-depth look at Romania’s legal framework and practical application of consumer alternative dispute resolution (ADR) mechanisms. It traces the evolution of ADR mechanisms in the country, from their inception to the current legal framework established by Government Ordinance (GO) 38/2015. The chapter examines the roles of various ADR entities, including the ADR Directorate within the National Authority for Consumer Protection (NACP), the Alternative Banking Dispute Resolution Centre (ABDRC), and ADR-Fin within the Authority for Financial Supervision. It also investigates the advantages and disadvantages of ADR mechanisms, emphasising their potential for quicker and more cost-effective dispute resolution compared to traditional court proceedings. Furthermore, the chapter explores the challenges and opportunities associated with ADR in Romania, addressing issues such as awareness, complexity, and the reluctance of traders to participate. It concludes by stressing the necessity for enhancements in the legislative framework and the importance of establishing a stable, impartial, and transparent framework for resolving consumer disputes to bolster consumer trust and participation in ADR procedures.

Humans cannot avoid from facing various trials, problems misunderstandings and disputes while carrying on with daily lives. In resolving a dispute, the disputants need to be provided the best redress avenues for the dispute resolution. This may include the option of having various choices of Alternative Dispute Resolution (ADR) mechanisms. Each ADR mechanisms must be closely matched to the disputes brought and the governing parameters need to be established due to the presence of a variety of mechanisms. The paper aims to analyse the question of compatibility between the setting and the matching of ADR mechanism, and the disputes involved. The literature highlights the opinions and views of researchers who have raised the topic and issues in the study and in relation to questions of this article. Hence, the analysis used was based on the content analysis especially previous academic studies conducted based on four (4) questions as follows: Q1 - Who is responsible for resolving disputes? Q2 - What is the main source of the establishing of levels and standard solutions? Q3 - How are the disputing parties represented? Q4 - What is the nature of the situation and to what extent can the discovery of facts and standard discovery is taken in this scenario? The paper will discuss the related issues by focusing on some forms of ADR. The findings of the study show that the answers to these questions are available in various forms, and the obvious possibilities are the differences of opinion that exist as result of the existence of different mechanisms. Ultimately, the final decision garnered must lead to actual ADR values that are required.

Purpose: This article outlines the levels of participation of men and women in resolving community conflicts using Alternative Dispute Resolution (ADR) mechanisms in Kapsokwony, Kenya. It highlights that ADR are currently considered participatory and inclusive processes to resolve community conflicts as they offer men and women a major stake in conflict resolution in society due to their roles and positions in society. Methodology: Findings across the globe confirm that when men and women equally participate in resolution of community conflicts there is increased likelihood of reaching an agreement and of the longevity of the agreement. This implies that for effective ADR, the participation of both men and women would be crucial. The study was based on a mixed research method whose methodology involved research survey, interview and Focus Group Discussions. In consideration of the fact that gender equality is strongly advocated for in conflict resolution, the study sought to establish the situation in Kapsokwony. The study therefore sought to assess the levels of men’s and women’s participation in ADR mechanisms in Kapsokwony.Results: The study established that power was a factor that influenced the level of participation. Consequently, the level was simply established to be that of neutral/passive to a very high participation level of women participation in ADR mechanism. However, those that were participating at high levels in ADR were few and their power was invested in the office they held. Furthermore, the study established that in the Nyumba Kumi structure, women level of participation in conflict resolution was increasing from neutral/neutral to a higher level of participation where they fully participated in leading and influencing decisions on resolution of conflicts. This can be explained because the nature of the Nyumba Kumi structure allows for everyone to be actively involved in ensuring safety and welfare of the ten households’ members. Urban Thinkers Campus (2015) confirms that women are involved in ensuring safety in urban and rural settlements mainly through the Nyumba Kumi Initiative in which they are part of the leadership committee. Unique contribution to theory, policy, and practice: Alternative Dispute Resolution mechanisms help in creating an environment that fosters development, peace, and social justice amongst other positive values amidst community conflicts. The United Nations (2007) Declaration on the Rights of Indigenous People advocates for equal participation of men and women in the management of community conflicts. Participation of both men and women in ADR processes to resolve community conflicts in Kapsokwony Sub-county region is a field that studies have not adequately explored. This study hopes to contribute to existing literature on men’s and women’s participation in ADR for land disputes. The outcome of this study may be utilized to influence increased participation of women in ADR, within Kapsokwony Sub-county region. Additionally, the study’s findings will add to the growing body of literature pertaining to the participation of both men and women in peace building within the Kenyan context. Lastly, the findings of this study form the foundation upon which future research can be done

An Emerging Trend - ADR Mechanism in IPR Conflicts

Alternative Dispute Resolution is embedded in the legal order of the European Union, which is based on the rule of law and other fundamental principles comprising democracy, freedom, equality, respect for human rights and human dignity. The protection of these principles and rights is entrusted to the Court of Justice of the European Union Court. In certain areas plaintiffs may or must—before or instead of seeking protection by the Court—avail themselves of alternative or preliminary dispute resolution procedures.

Generally, encountering conflicts/disputes in Supply Chain (value chain/network) Management (SCM) are unavoidable/inevitable owing to the contractual complexities and empirical eventualities (including incidental contingencies) and their efficient resolution through Alternative Dispute Resolution (ADR) mechanism (viz, Arbitration, Mediation, Conciliation, and Negotiation) in India is ubiquitous across all the Industries/Sectors. The alternative dispute resolution (ADR) methods and mechanism (viz, Arbitration, Mediation, Conciliation, and Negotiation) are always preferred to conventional Court-Litigation in business world owing to the impregnated propitious proposition with the ADR techniques. However, arbitration and mediation are the most preferred ADR techniques for supply chain dispute resolution not only in India but also in the World. In India, the Arbitration and Conciliation Act, 1996 (including amendments in 2015, 2019, and 2021) has been enacted to entrust necessary governing framework for dispute resolution through Arbitration and Conciliation mechanism or techniques of ADR across the business landscape including Supply Chain.
 This study primarily endeavours to elucidate the fundamental framework of ADR methods and mechanism efficacy vis-à-vis the empirical framework of Supply Chain (value chain/network) dispute resolution in India.

This chapter explores various arbitration issues from East-West and common law-civil law comparative viewpoints. The term “East” refers generally to certain prominent Asian jurisdictions (e.g., China, Hong Kong, Singapore, Japan and Korea); while the “West” represents some of the major Continental European civil law jurisdictions (e.g., France, Germany and Switzerland), as well as the main Anglophonic jurisdictions traditionally viewed as main players in the common law world in the “West” (e.g., the United Kingdom, the United States, Canada and Australia). Three driving forces, as argued in this chapter, exert varying degrees of influence and account substantially for variations in the arbitration issues considered: (1) cultural dissimilarities between the East and the West; (2) operational differences in the practice of common law and civil law legal systems; and (3) variances in dispute resolution traditions among jurisdictions (e.g., a longstanding preference for using mediation rather than litigation and arbitration). Various arbitration issues will be examined. First, the relationship between alternative dispute resolution (ADR) and arbitration at a conceptual level in differing legal cultures is discussed. Next, the different permutations underlying the formation and operation of the arbitral tribunal across the surveyed jurisdictions will be analyzed, before examining the issue of juridification of arbitration tribunal processes. Finally, dispute resolution traditions are discussed and the diverse attitudes toward med-arb among legal systems and cultures are analyzed. In each section, this chapter explores whether and to what extent the aforementioned three driving forces contribute to the jurisdictional differences.

Disputes may be a fact of life, but they are no less troubling when they occur. They often need resolution, and swift, meaningful resolution at that. While litigation is the most popular means of settling disputes, this paper appraises the application of Alternative Dispute Resolution (ADR) mechanisms to marital conflicts in Nigeria. In Nigeria, litigation which is the most common means of settling disputes is often inadequate for the settlement of marital conflicts for the simple reason that it is rarely personal, empathic or collaborative for that matter. This paper therefore appraises the nature and extent of the application of ADR mechanisms to marital conflicts and also tests the proposition that a ‘cause and effect’ relationship exists between ADR and healthy marriages. The paper adopts doctrinal and empirical approaches by leveraging on qualitative analysis of responses to structured questions administered to participants within the Ilorin metropolis, Kwara State, Nigeria. The paper finds that there is an overwhelming use of ADR mechanisms for the settlement of marital conflicts, albeit with most leaning towards non-institutional ADR mechanisms, and that a ‘cause and effect’ relationship does exist between ADR and healthy marriages. This paper recommends that more importance be given to ADR in the place of settlement of marital conflicts and that better awareness be made in respect to institutional ADR mechanisms in Nigeria. The work also recommends that serious consideration be given to the establishment of family courts that would operate using collaborative approaches unique to ADR mechanisms.

Situating Alternative Dispute Resolution (ADR) in the Political Sphere: Thoughts on Mechanisms for Pre-Election Political Dispute Resolution in Nigeria

Mass Environmental Harm-in Principle

The cross-border commercial relationship between China and Malaysia has continued to grow over the years, with China being Malaysia’s largest trading and business partner and a major source of foreign direct investment. However, the relationship has not been without issues and challenges within the realm of cross-border business, trade and commercial formation of contracts and agreements and its implementation between both contracting parties. Holistic dispute resolution mechanisms are therefore crucial towards harmonising compliance in cross-border commercial relations between China and Malaysia. Alternative dispute resolution (ADR) mechanisms such as negotiation, mediation, arbitration, online dispute resolution, and expert determination can be used to overcome contractual issues and legal comprehension challenges such as the language barrier, cultural differences, in view of differing legal systems within historical and contemporary legal norms and developments. These mechanisms can provide parties with a cost-effective, efficient, and flexible means of resolving conflicts while preserving long-term cross-border business inter-relationships between two unique jurisdictions comprising China and Malaysia. Alternative dispute resolution mechanisms can strengthen business, trade, and commercial engagements at many levels-both public and private ventures- and thus considerably enhance cross-border compliance, and foster a more stable ease of doing business environment. Alternative dispute resolution mechanisms can facilitate harmonious compliance in cross-border commercial relations between China and Malaysia. The use of these mechanisms could overcome commercial and business disputes and uphold bilateral business integrity and build long -term commercial interests in the long run. By adopting ADR mechanisms, China and Malaysia can strengthen their trade and business ties and foster a more stable and holistic business environment at both ASEAN and global environment.