Dispute resolution in federal systems

Abstract

This article deals selectively with four broad approaches to conflict management in federal systems of government: formal dispute resolution,informal dispute resolution, dispute avoidance, and popular dispute resolution. Courts undertake the task of formal dispute resolution through judicial review: issues of current significance include judicial concepts of federalism, the reference jurisdiction, Scottish devolution, and supranational federalism and the European Court of Justice. Examples of informal dispute resolution are few. The South African Constitution includes a provision, requiring parties to an intergovernmental dispute to exhaust all other remedies before resorting to litigation. The dispute resolution process contained in chapter 20 of the North American Free Trade Agreement may stimulate experimentation with similar models in federal systems. Dispute avoidance techniques are many and varied; they include the drafting of constitutional instruments and the use of intergovernmental forums within and outside the constitutional framework. The electoral process may be employed in federal systems to determine the fate of governments, specific legislative measures and proposed constitutional amendments. Each federal society has its own culture of conflict management, which exerts a subtle but significant influence on the operation of, and the relationship among, dispute resolution systems.