The World Bank’s Dispute Resolution Service: Procedural Reforms to Ensure Meaningful Access to Remedies for Project-Affected People

In 2020, the World Bank established the Dispute Resolution Service (DRS) to address complaints from people adversely affected by its projects. The DRS enables them to engage directly with borrower States responsible for project implementation, using mediation, fact-finding, and other methods. As outlined in Section I, this paper examines how the DRS strengthens affected people’s access to remedies and how the DRS should further strengthen such access. Section II presents the standards that underpin the access to a remedy provided by the DRS. Legal standards derive from the Bank’s founding treaty, customary international law, and potential immunities before national courts. Policy standards derive from the Bank’s three remedial mechanisms. First, the 1993 Inspection Panel investigates the Bank’s compliance with its policies, based on three principles: accessibility, effectiveness, and independence. Second, the 2015 Grievance Redress Service facilitates corporate-level dispute resolution. Third, the Bank created the DRS solely to enhance access to remedy through dispute resolution at the organization’s highest level. Section III proposes improvements to the DRS for each principle. Regarding accessibility, the Bank should expand participation opportunities for affected people, including by guaranteeing minimum access to project information. Regarding effectiveness, the Bank should require the “consistency” of dis­pute resolution agreements with its policies, the default publi­cation of agreements, and mandatory verification of agreement implementation. Regarding independence, the Bank should ensure greater options in sequencing compliance review and dispute resolution processes and introduce concrete measures to mitigate the DRS’ institutional interest in outcomes. Section IV concludes that the DRS’ procedural shortcomings raise doubts about its ability to meaningfully enhance access to remedies, aligning instead with the contemporary trend in international law toward flexible dispute resolution. More broadly, the DRS illustrates the relevance of refining global administrative law theory through a transnational perspective that considers the distinct political, institutional, and economic forces that shape enforcement mechanisms.

On‐line dispute resolution is more than just the delivery of alternative dispute resolution (ADR) services through the Internet. The introduction of new technology poses opportunities and challenges for dispute resolution policies and practices. Policies and practices that specifically apply to specialized on‐line dispute resolution services will of course need to be developed. But equally, dispute resolution services that do not necessarily see themselves as “on‐line” will continually need to adapt to take account of the increasing availability and quality of new forms of communication.

'Fitting the forum to the fuss', i.e., finding an optimal way to deal with every dispute, is an appealing slogan of proponents of alternative dispute resolution. It also summarizes the contract one would expect rational disputants to make, once they are embroiled in a conflict they cannot resolve together. Disputants can 'buy' dispute resolution services, such as various forms of court intervention, mediation, or arbitration. Agreeing to a contract to buy such services together with an opponent, however, is likely to be difficult. In this paper, these difficulties are assessed. The barriers to dispute resolution are well researched. These barriers are behavioral regularities that qualify the assumption that rational parties would solve their dispute efficiently through negotiations. Barriers to solving the dispute itself through negotiations, however, may have analogous effects on negotiations regarding a procedure to resolve a dispute. The possible psychological (cognitive) barriers, strategic/tactical barriers, and institutional/structural barriers will be discussed. We will argue that the barriers to jointly decide on a dispute resolution procedure are likely to be substantial, and to be similar to the barriers to solving the dispute itself. If our thesis holds, the default rule for dispute resolution is 'sticky', which has important implications. First, defaults will attract the majority of disputes and should be designed carefully. Reformers of civil procedure or other dispute resolution mechanisms should not be deceived by the present use of dispute resolution services: They do not necessarily show what the preferences of disputants are. Secondly, our thesis may explain why arbitration and mediation are less frequently used than one would expect on the basis of the preferences for these dispute resolution services that are expressed in surveys, or on the basis of what one would expect rational parties to do when they optimize decision costs, error costs, deterrence benefits, and the value they attach to the procedure itself. Thirdly, it may be necessary to take a closer look at current attempts to remedy this 'market failure', such as court-annexed mediation and arbitration programs. These mechanisms may not be sufficient to create a level playing field for different dispute resolution services. Lastly, the supply side of the market is likely to be distorted. The providers of default dispute resolution services, such as courts and lawyers, are effectively shielded from competition, and may not adapt their services and prices sufficiently to the needs of customers. We offer some suggestions to remedy this market failure and conclude that a better understanding of the market for dispute resolution is needed.

Online Dispute Resolution (ODR) services are e-justice service conduits that utilize Electronic Negotiation Systems (see the chapter by Kersten and Lai, this volume). They are a key mechanism that may provide a viable solution to the flood of e-disputes. Justice is important in negotiation processes (see the chapter by Albin and Druckman, this volume).It is therefore suggested that ODR services are a viable means to serve justice on the web.In this chapter we describe the state of e-justice and introduce the need for online dispute resolution services. We then present the concept of ODR, its different forms, and its association with Negotiation Support Systems. To this end we portray a classification of ODR services, give examples of different types of services, and specifically discuss one of the promising types, namely Principle-Based Dispute Resolution Services. The chapter concludes with an overview of the challenges associated with the introduction of ODR services, and specifically with their adoption by users; an issue that is echoed in several other chapters as well (see chapters by Etezadi, and Kersten and Lai, this volume)

Traditionally, international custom is considered one of the most problematic sources of international law. In many ways, this explains the cautious attitude of Russian doctrine and Russian courts towards it, even while combined with a recognition of the importance of international customary law. At the same time, in the second half of the twentieth century serious changes began to occur in customary international law, the accumulation of which by the end of the century made it possible to talk about the emergence of modern customary international law, which is strikingly different and even opposed to classical customary international law. The dynamics of the development of customary international law in the second half of the twentieth century led to the emergence of a very rigid structure which is poorly consistent with the principle of sovereign equality of States and the principle of conscientious compliance by States with their international obligations. New approaches to the identification of customary norms led to the fact that the custom could appear in a short time and become mandatory for all States, with the exception of those which constantly and loudly objected to it at the stage of its formation. At the same time, this process of creating a custom permits reliance only on the practice of an active minority of States, provided there is no significant disagreement on the part of other States. Another fundamental difference of modern customary international law is that it does not provide for reservations and ratification by States, or for unilateral withdrawal of States from it, including by revocation of their opinio juris. A serious concern is the tendency on the part of international and national courts to declare the existence of a particular rule of customary law without any convincing and reasoned justifications in the form of an analysis of the practice of States and their opinio juris. The inability of States to adjust the risks associated with customary law at the multilateral level has led to the fact that States individually have begun to take measures to minimize them, using various methods for this. Thus, the highest national courts have begun to equate customary law with international treaties so that in both the explicit consent of the State is always necessary, thereby calling into question both the binding nature of the custom in relation to all States, even those who objectively could not express their opinion during the formation of the customary norm, and the impossibility of unilateral withdrawal from custom. Unfortunately, clarity regarding customary international law is still lacking in the Russian legal order, leaving open the question of how to resolve conflicts that arise between the customary norms of international law and the provisions of national law, including provisions of the Constitution.

In the previous chapter I argued that the role of the judge is to apply the law, with restricted possibilities to develop the law in relation to new factual circumstance. Judges are, however, not allowed to create law when merely “determining” customary international criminal law. When the applicable law consists of unwritten norms, the question is whether judges should have an obligation to disclose the method used to determine a customary international criminal norm. When the ICRC published its customary international humanitarian law study it chose to disclose the method used to identify customary law, listing what it considers to be relevant State practice and opinio iuris. The ICRC itself simultaneously claimed that the separation of State practice and opinio iuris is “very difficult and largely theoretical.” Although the ICRC Custom Study has been subject to critique, the disclosure of method is to be welcomed in that it allows the ascertainment of customary international law to be comprehensible. However, one could argue that the role of international criminal tribunals is to deliver judgments and that—to draw on Pellet’s comments on the ICJ—they are only judicial bodies and not teachers or scholars in relation to the underlying methodology. Nevertheless, it is maintained here that the issue is different with regard to criminal proceedings. An accused is entitled to know the exact underlying jurisdictional legal basis of the charges against him, whether they form part of conventional or customary international criminal law, and similarly a convicted criminal is entitled to comprehend the legal basis of his conviction. A part of the fair trial guarantee is that the rationale of a trial judgment shall be explained, accompanied by a reasoned opinion. This obligation on the part of the trial chambers safeguards the accused’s right of appeal, and that the Appeals Chamber can evaluate the Trial Chambers findings. In practice Appeal Chambers have rebuked Trial Chambers for their evaluation of factual evidence. While overturning certain customary law findings of the Trial Chambers, such as the result, the Appeal Chambers have rarely criticized the applied methodology of the Trial Chambers. Since the rationale or legal reasoning of a judgment must clearly be explained, the underlying legal basis of the criminal conviction must have already been clearly set out as a prerequisite. In relation to “ordinary” domestic statutory criminal norms this problem does not generally arise. As established above in the domestic context, the nullum crimen sine lege certa requirement as an “imperative for improvement” is addressed to the legislator to define ex ante the underlying criminal norms with adequate precision. Ideally, everyone who can read should be able to comprehend the underlying legal basis as long as the criminal norms are drafted in a clear and comprehensible manner. For customary international criminal law the matter is far more complex. Here the disclosure of how the respective chamber arrived at a customary international criminal norm is a necessary element therewith an individual can comprehend the legal reason and normative basis of his conviction, and as such be able to challenge possible methodological shortcomings on part of the judges. However, judges are often reluctant to disclose the applied method(s). Like magicians, the judges are not willing to reveal how they pull the rabbit—customary international criminal law—out of the hat. The opportunity to quantify the way customary law is determined by international criminal tribunals begins with a duty to disclose the method used. On the basis of the disclosed method one would be in a position to verify or challenge a judgment or decision, that is to say, if it had been delivered on sound methodological grounds. Regrettably, this proposed duty of a methodological disclosure is far from being a political and legal reality.

Introduction to construction dispute resolution

Mediation is becoming increasingly popular as a process of dispute resolution, with confidentiality as one of its core tenets. Where mediation is provided as part of a statutory-funded service, the confidentiality provision is complicated by the reporting requirements of the State, as funder and regulator.  The issue considered in this research is how that challenge can be addressed by the Irish Financial Services and Pensions Ombudsman (FSPO). This paper draws on international literature and practice. A range of comparator organisations were examined to establish how they address this challenge and the implications for the FSPO. The contrasting demands of confidentiality and transparency create a dialectic tension that is common when private and public interests are present and, at first look, it may seem to the outside observer that the boundaries of confidentiality and transparency are fluid and inconsistent. However, while the findings indicate some variance in practice, they suggest a common rationality and coherent approach across ombudsman services in their use of mediative-style processes based on shared principles, reasoned expectations and valid criteria. To arrive at these findings, two basic questions were addressed: (1) What does the Ombudsman need to be transparent about and why? (2) What information pertaining to the service needs to remain confidential and why? This research contends that pragmatic solutions can be found to the tension inherent between the need for confidentiality and transparency in a state-funded mediation service and that these findings have relevance to other dispute resolution services.

International courts serve an important function in finding and interpreting existing law, but as noted already forty years ago the focal problem of international courts is that: “the borderlines between interpretation of existing law and the making of new law are inevitably fluid.” Particularly in interpreting customary international law the courts face situations which call for innovative methods in determining the definition and the scope of the law. International criminal law has only recently grown more coherently codified, but still bears much on customary law elements, unlike some other fields of public international law, in which rules have been quite thoroughly codified. Additionally, in criminal law issues such as foreseeability, and non-retroactivity, to mention a few, ought to be given a high credence, or the reason that it is the liberty of an individual that is at stake. In discovering and applying customary international law, international criminal courts are confronted with the balancing exercise between following positivist approach – attaching itself to law as it is, as enacted or adopted by an authority, and may lead to an undesired, even unjust outcome in criminal trials – and natural law approach – arising from inherent rights and duties regardless of their formal recognition, and may risk the violation of the principle of legality. Principle of legality determines the limits of the law-making process and encompasses norms that legal rules must adhere to, such as clarity, promulgation and non-retroactivity.The question arises, how can the courts preserve the principle of legality, and especially the prohibition of retroactive effect of law, in interpreting – and in formulating – customary international law in a progressive manner. Should the principle of legality be applied liberally in order to bring perpetrators to justice, or is strict application necessary in criminal courts, even at the cost of some impunity? This paper analyses how these two aspects should be balanced and reconciled against one another in discovering, interpreting, and applying customary international law, with reflections on theories of H.L.A. Hart and Lon Fuller – the two influential proponents of modern positivist and natural legal thought, respectively – and recent case-law of international courts in fields of international criminal law and human rights law. Also, Hart‟s primary and secondary rules, and rule of recognition are considered in the determination of what may count as customary international law. First, I consider the principle of legality and its importance in the formation of law – with emphasis on customary international law, followed analysis of its link to morality and the concepts of lex lata and lex ferenda. I have included a brief discussion on the application of primary and secondary rules and rule of recognition in the formation of (customary) international law. Finally, I analyze selected recent court decisions which deal with international crimes and the principle of legality, with the aim of reflecting on the above issues.

International courts serve an important function in finding and interpreting existing law, but as noted already forty years ago the focal problem of international courts is that: “the borderlines between interpretation of existing law and the making of new law are inevitably fluid.” Particularly in interpreting customary international law the courts face situations which call for innovative methods in determining the definition and the scope of the law. International criminal law has only recently grown more coherently codified, but still bears much on customary law elements, unlike some other fields of public international law, in which rules have been quite thoroughly codified. Additionally, in criminal law issues such as foreseeability, and non-retroactivity, to mention a few, ought to be given a high credence, or the reason that it is the liberty of an individual that is at stake. In discovering and applying customary international law, international criminal courts are confronted with the balancing exercise between following positivist approach – attaching itself to law as it is, as enacted or adopted by an authority, and may lead to an undesired, even unjust outcome in criminal trials – and natural law approach – arising from inherent rights and duties regardless of their formal recognition, and may risk the violation of the principle of legality. Principle of legality determines the limits of the law-making process and encompasses norms that legal rules must adhere to, such as clarity, promulgation and non-retroactivity.The question arises, how can the courts preserve the principle of legality, and especially the prohibition of retroactive effect of law, in interpreting – and in formulating – customary international law in a progressive manner. Should the principle of legality be applied liberally in order to bring perpetrators to justice, or is strict application necessary in criminal courts, even at the cost of some impunity? This paper analyses how these two aspects should be balanced and reconciled against one another in discovering, interpreting, and applying customary international law, with reflections on theories of H.L.A. Hart and Lon Fuller – the two influential proponents of modern positivist and natural legal thought, respectively – and recent case-law of international courts in fields of international criminal law and human rights law. Also, Hart‟s primary and secondary rules, and rule of recognition are considered in the determination of what may count as customary international law. First, I consider the principle of legality and its importance in the formation of law – with emphasis on customary international law, followed analysis of its link to morality and the concepts of lex lata and lex ferenda. I have included a brief discussion on the application of primary and secondary rules and rule of recognition in the formation of (customary) international law. Finally, I analyze selected recent court decisions which deal with international crimes and the principle of legality, with the aim of reflecting on the above issues.

Although dispute resolution has a long and rich documented history, the growth of out-of-court settlements and alternative dispute resolution (ADR) processes in Australia has been a recent development with family dispute resolution (FDR) services younger still. This chapter overviews the history of FDR in Australia to contextualise the development of online family dispute resolution (OFDR). As an extension to the already accessible Telephone Family Dispute Resolution service, OFDR offers the added value of multi-media engagement and innovative online tools to assist in easing the process of mediation for all stakeholders. From the introduction of the Family Law Act in Australia in 1975 to the 2006 Reforms, informal dispute processes are becoming recognised as fertile ground to deliver services via the use of advanced technologies. This chapter presents evidence as to the value of ADR in family law to mitigate issues concerning increased service demand, strained court resources, and the avoidance of emotionally taxing adversarial approaches. History shows a trend toward making services more efficient and effective, resulting in a natural progression to ODFR. Australia is currently at the forefront of OFDR advancement to accommodate their diverse and dispersed population.

Like any complex phenomenon, dispute resolution can be observed through different lenses. We can look at it from a public law perspective, scrutinizing the nature and the limits of the power that adjudicators exert, be them State judges, or private arbitrators. Conversely, we can analyze it from the vantage of private law, focusing on the role of private autonomy, the importance of party impulse, and the relationship between procedural remedies and individual substantive rights. Taking one step back, however, it is also possible to observe the dispute resolution landscape in its entirety, as a market where different actors offer competing services, according to the pattern of monopolistic competition. Looking at dispute resolution from this point of view, State court litigation and commercial arbitration are two of the many options that users are presented with, and invited to choose from; dispute resolution, in fact, is an ever-growing market, as the recent proliferation of international commercial courts demonstrates. In this type of market, competing “products” undergo a process of progressive differentiation, aimed at enhancing their attractiveness in the eyes of the users. Technology can be an important differentiating factor, maximizing the efficiency of a given dispute resolution service and, as a consequence, highlighting its desirability, as opposed to the available alternatives. In light of this, it is particularly interesting to investigate the potential impact of new technologies (and, in particular, of blockchain technologies) on dispute resolution, while observing the latter as a market. The aim of this short contribution, hence, is to highlight the different ways in which technology may alter (or disrupt) the dispute resolution market, with a particular focus on Online Dispute Resolution (ODR).

Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten

This thesis critically evaluates the governance, resolution of disputes and regulation of decentralised autonomous organisations (DAOs) through the lens of institutional cryptoeconomics (IC). DAOs, which use smart contracts, and therefore blockchain, are a new type of organisation, which can take many forms, including for-profit and not-for-profit. The primary data used in the thesis are the scholarly and grey literature triangulated with semi-structured interviews from founders and consultants for DAOs, people carrying out work for DAOs and regulators. Governance is vital to DAOs. Given DAOs cannot act outside their rules and because their smart contracts may contain errors or unforeseen events may occur, rule changes are necessary if DAOs are to remain operational. Nor can DAOs act unless they are expressly authorised to do so by their smart contracts. Proposals for rule changes and actions, such as agreeing for work to be done for the DAO, are proposed and voted upon by DAO token holders. A key finding is the complex governance arrangements DAOs use to overcome the challenges of decentralised governance if any token holder can make proposals to the DAO. Those challenges include a lack of strategic oversight and the vetting of proposals. Voting on proposals also varies amongst DAOs. While some DAOs use a traditional one token–one voting scheme, others wary of concentrating power use a range of novel schemes, including reputation-based systems and conviction voting. Despite the use of smart contracts, dispute resolution remains necessary. Traditional dispute resolution institutions are not fit for purpose for most disputes arising within DAOs and people dealing with DAOs. Instead DAOs can use dispute resolution services from emerging online third-party decentralised dispute resolution services (DDRSs). These DDRSs employ various innovative mechanisms, including allowing anyone to appeal a decision, not merely the parties themselves. In cases where the parties have agreed to using a DRRS, the thesis finds that DRRSs’ rulings should not be subject to judicial oversight because of the time and cost involved in court proceedings and the need for finality of decisions. DAOs pose challenges for legal regulation: the default laws of partnership and unincorporated associations are an ill fit. The thesis examines the use of legal wrappers by DAOs. It also explores the attempts to incorporate DAOs into existing legal frameworks through amendments to legislation and the creation of sui generis legislation. The thesis finds that the United States’ limited liability company structures (LLCs) are the best fit for for-profit DAOs and registered unincorporated nonprofit associations for not-for-profit DAOs. This thesis contributes to the literature by critically evaluating three interlinked themes through the lens of IC: DAO governance models, dispute resolution and legal structures for DAOs. It provides greater insight into DAOs as a nascent organisational form and recommendations for reform.

Over the past two decades, customary international law has become a hotly debated subject in the United States, giving rise to new theories on the relationship between international norms and the common law. However, simply because the applicability of customary international norms in U.S. courts has become foggy does not mean that the evolution of customary international norms has slowed, nor that parties in U.S. courts should be hesitant to argue new norms in U.S. state and federal jurisdictions. This Note argues that the right to an interpreter is a right recognized and protected by customary international law, and, as such, can be claimed by individuals in U.S. courts who have suffered a prejudicial violation. The right to an interpreter is generally viewed as a subsidiary right of the right to a fair trial; however, even as a subsidiary right, it is an important and necessary right that is well established by state practice and opinio juris. Moreover, the right is a more specified and definite norm of customary international law than the right to a fair trial and is thus more easily applicable in domestic jurisdictions, opening up the possibility for new customary international law claims to be made in U.S. courts. The recognition of the right to an interpreter as a norm of customary international law is important both in theory for the elucidation of international law and also in practice for individuals who have suffered a violation but lack an international forum in which they could vindicate their rights. The United States offers some of the strongest fair trial guarantees in the world, and, as a result, parties in U.S. courts can often look to the U.S. Constitution for protection of their due process and fair trial rights. However, in some circumstances, and as will be demonstrated with interpretation rights, international law may offer greater protection of specific fair trial rights, leaving individuals who are unable to argue these rights in U.S. courts vulnerable to a violation without an appropriate domestic remedy. Identifying the right to an interpreter as a right protected under customary international law consequently helps to provide greater protection of such rights for claimants in American courts, and may help to reignite the use of customary international norms in the U.S.This Note begins in Part II by arguing that the right to a fair trial is a general norm under customary international law established by state practice and opinio juris. However, the right to a fair trial is too vague and indefinite to be invoked successfully in national courts, and especially not U.S. courts which may apply a strict standard for customary international law norms after the Supreme Court’s decision in Sosa v. Alvarez-Machain. Part III finds that the right to an interpreter has sufficient state practice and opinio juris to be considered a right under customary international law independent of the general right to a fair trial, and is not as problematic as the right to a fair trial for application in U.S. courts. Finally, Part IV considers the potential of the customary international right to an interpreter for application in U.S. federal and state courts, arguing that the right to an interpreter likely provides an additional layer of protection for individuals who are insufficiently protected by interpretation standards in federal or state jurisdictions. Ultimately, this Note aims to cement the status of the right to an interpreter as a norm of customary international law, for potential application in both national and international tribunals by individuals who have suffered prejudicial violations of their rights.