Adjudication Of Disputes Research Articles

CHOICE OF ISLAMIC LAW AS THE GOVERNING LAW IN ISLAMIC FINANCE CONTRACTS: THE UNITED KINGDOM AND NIGERIAN PERSPECTIVES

The globalisation of Islamic finance has brought the adjudication of Islamic finance disputes before non-Muslim courts and arbitral tribunals in Europe, America and elsewhere. Expectedly, the issue of the validity of the selecting Islamic law as the governing law of an Islamic finance contract often arises before these courts and tribunals. The article seeks to address the attitude of the United Kingdom and Nigerian courts to this unique problem. The thesis of the paper is that while the parties’ reasonable expectations in having their Islamic finance contracts governed by the Shari’ah may be met in Nigeria and by extension in other Muslim-majority countries, the contrary is the case in the United Kingdom and Europe where the courts do not generally favour the application of Islamic law. The paper advocates that the doctrine of the proper law of contract should be extended to Islamic finance by upholding Islamic law as the law selected by the parties (on the basis of party autonomy) or alternatively, as the system of law with which an Islamic finance transaction is most closely connected.

Indecent images and defamatory meaning in late modern societies: taking ordinary, reasonable readers outside their ivory tower

ABSTRACTThe article scrutinises a libel case brought by a claimant against the public prosecuting authority in England and Wales, asking the court to determine as a preliminary issue the meaning of a Charging Announcement. This case is worth consideration because it illustrates how the arguably problematic interpretation of the offence of ‘making’ indecent images of children may extend beyond the dynamics of the criminal trial to colour the adjudication of civil disputes. The article also challenges the qualities of hypothetical referees in defamation cases, suggesting that they need to be determined based on a realistic rather than an idealistic view of late modern, multi-mediated societies. The Savile scandal and other high-profile child sexual abuse cases have cultivated a climate of mistrust in which the ordinary reader is reasonably (not unduly) suspicious and should not be expected in this context to favour a less defamatory meaning over a more defamatory one.

Specialist Techniques for Construction Dispute Resolution: How Many Ways Can the Cat Be Skinned?

Parties to construction and infrastructure projects have been at the forefront of developing and/or adopting a range of dispute avoidance and resolution measures: partnering, dispute boards, adjudication, expedited (or ‘fast-track’) arbitration, and mediation. Closer analysis reveals that preferences vary according to region, as does the take-up of such initiatives.This article looks at what methods have worked in the Gulf, and what other techniques might usefully be deployed. Some methods, like partnering and expedited arbitration, may have been advocated previously with mixed results.The article contends that this was not because of some inherent unsuitability, but because the time was not right. The article looks at a new partnering initiative, discusses dispute boards and adjudication, and considers the continued roll-out of expedited procedures by arbitral institutions (including the new ICC Rules, effective as from March 2017).The article explains how innovative and creative dispute resolution techniques might usefully be applied in the context of Gulf mega-projects.

Variations and the Resolution of Disputes under the FIDIC Red Books

Uptake of the 1999 FIDIC Red Book has been slow in the Middle East/GCC, with users preferring the 1987 Fourth Edition of the Red Book instead.This article highlights some of the ways in which users in the region personalize the Red Book. It also identifies those provisions of the Red Book that may conflict with mandatory rules of law set out in the region’s civil codes. These include provisions concerning instructions, variations, omissions and the notification of claims.The authors also discuss the role of the engineer under the 1987 Fourth Edition of the Red Book and the Dispute Adjudication Board procedure in the 1999 Red Book. They comment on the uptake of both within the region, suggest steps that might be taken to overcome their perceived shortcomings, and indicate where developments can be expected.

Litigation or Arbitration: a Competition? – Cross-border Commercial Dispute Adjudication in a Globalizing Worldunder the Reign of EU Regulation 1215/2012

Cross-border civil and commercial conflicts can be adjudicated by courts of sovereign states or in a private setting, namely by arbitration panels. Against the background of a globalizing world and an increase in popularity of arbitration as a means of dispute resolution ‘Europe’ (the European Union) faces the challenge to demarcate borderlines as litigation in court and arbitration tend to get in conflict more often. Conflicts may relate to the jurisdiction of courts versus the competence of arbitration panels (inter alia resulting in anti-suit court orders or even arbitral awards), as well as to the recognition of foreign court orders being capable of frustrating arbitral awards or vice versa. This contribution attempts to analyze how these clashes ought to be resolved under the reign of ‘new’ cross-border civil and procedural law in Europe (EU Regulation 1215/2012, or ‘Recast’) on Jurisdiction and Recognition of Foreign Judgments in Civil and Commercial Matters’ (in force January 15, 2015). Two preliminary rulings of the Court of Justice of the European Union (CJEU) though still interpreting EU Regulation 44/2001 (i.e. the legislative predecessor of the Recast), remain important to the law regime of the Recast. The final conclusion is that, even though the Recast respects the international law framework of notably the 1958 New York Convention on the recognition and enforcement of arbitral awards, a considerable amount of legal uncertainty remains, as Recital 12 of the Recast Preamble contains ‘open-ended’ parameters leaving discretionary room for national law of each individual EU Member State and calling for further interpretative rulings of the CJEU.

Limitation of Socio-Economic Rights in the 2010 Kenyan Constitution: A Proposal for the Adoption of a Proportionality Approach in the Judicial Adjudication of Socio-Economic Rights Disputes

On 27 August 2010 Kenya adopted a transformative Constitution with the objective of fighting poverty and inequality as well as improving the standards of living of all people in Kenya. One of the mechanisms in the 2010 Constitution aimed at achieving this egalitarian transformation is the entrenchment of justiciable socio-economic rights (SERs), an integral part of the Bill of Rights. The entrenched SERs require the State to put in place a legislative, policy and programmatic framework to enhance the realisation of its constitutional obligations to respect, protect and fulfill these rights for all Kenyans. These SER obligations, just like any other fundamental human rights obligations, are, however, not absolute and are subject to legitimate limitation by the State. Two approaches have been used in international and comparative national law jurisprudence to limit SERs: the proportionality approach, using a general limitation clause that has found application in international and regional jurisprudence on the one hand; and the reasonableness approach, using internal limitations contained in the standard of progressive realisation, an approach that has found application in the SER jurisprudence of the South African Courts, on the other hand. This article proposes that if the entrenched SERs are to achieve their transformative objectives, Kenyan courts must adopt a proportionality approach in the judicial adjudication of SER disputes. This proposal is based on the reasoning that for the entrenched SERs to have a substantive positive impact on the lives of the Kenyan people, any measure by the government aimed at their limitation must be subjected to strict scrutiny by the courts, a form of scrutiny that can be achieved only by using the proportionality standard entrenched in the article 24 general limitation clause.

JUDICIAL REVIEW OF DECISIONS OF DISCIPLINARY TRIBUNALS OF VOLUNTARY ASSOCIATION: THE POST-1994 INTERPRETATION

The relationship between a voluntary association and its members is founded on a contract. The constitution of the association regulates the acquisition and termination of the membership of the association. The courts have always had the jurisdiction to hear disputes between members of the association, and they can also interfere with its decision if it has acted ultra vires, or in an instance where its decision was vitiated by bias. After the dawn of the new constitutional democracy, the Constitution became the supreme law of the Republic, and it enshrined the transformative clauses. Thus, the process of transforming the adjudication of disputes in the private sector has to be aligned with the values embedded in the Constitution. This article explains the review of the decisions of a disciplinary tribunal prior to and after the 1994 constitutional dispensation. This it does by discussing the effect of transformative constitutionalism on the review of disputes in the private sector. The relevant transformative clauses in the Constitution are discussed. More particularly, the article concentrates on the effect of the just administrative clause in the Constitution and the Promotion of Just Administrative Act (PAJA) in transforming the rules of natural justice. Furthermore, instances where the PAJA is applicable with regard to the decision of a tribunal of voluntary association, are explained. Finally, a conclusion is drawn on the post-1994 courts’ reviews of decisions of disciplinary tribunals of voluntary associations.

Religion and unemployment benefits

When employees are dismissed or resign because of a conflict between their religion and job duties or expectations, how does this affect their claims to unemployment benefits? How do European countries address this question? The answer has significant consequences for many jobseekers and employees belonging to religious minorities and in many ways excluded from the mainstream labour market, yet the role of religion in the adjudication of European unemployment disputes has so far received limited attention. This article focuses on the role of religious dress in unemployment benefits disputes in Belgium, the Netherlands and Great Britain. It also assesses whether the messaging in relevant case law in the area of unemployment benefits has been sufficiently interlocking with employment law. Finding a level of disconnect, it is argued that an explicit duty of reasonable accommodation in employment would appropriately address the interplay between unemployment benefits and employment law in Europe.

An Appraisal of the Legal Framework for Adjudication of Industrial Disputes in Nigeria

This paper is titled “An Appraisal of the Legal Framework for Adjudication of Industrial Disputes in Nigeria” and came against the background of the perennial dispute between labour and employers of labour, particularly the public sector, namely, employment under the Federal, State and Local Governments. Agitations for wage increases and improvement of conditions of service by labour have had to face up with government apparent insensitivity to the plight of labour. The results of these frequent disagreements have been the disruption in the industrial sector, low productivity of labour and retarded economic growth. Hence, this paper is aimed at addressing these negative outcomes by evaluating the framework as well as procedure for settlement of industrial disputes in the country with a view to achieving better industrial harmony. The paper has identified three principal legislations that are relevant to adjudication of industrial disputes in the country, namely, the 1999 Constitution of Nigeria (Third Alteration Act) 2010; the National Industrial Court Act, 2006; and the National Industrial Court of Nigeria (Civil Procedure) Rules, 2016. The paper has appraised the strengths and weaknesses of these legislations as well as the factors that militate against their capacity to accomplish their common objective of achieving harmony and stability in the labour sector. To remove these setbacks the paper has recommended among others things, the amendment of the extant laws to attain the best ends of justice and to restore and sustain the confidence of litigants in the adjudication process, which is key to avoidance of frequent strikes and lock-outs.

Does slow and steady win the race? Ecosystem services in Canadian and Chilean environmental law

This paper examines and compares the extent to which ecosystem services have been incorporated in Canadian and Chilean environmental law and policy. The focus is on the adjudication of environmental disputes but the analysis is contextualized by the broader environmental law and policy developments of each country. As will be seen, Canada's judiciary was relatively quick to embrace ecosystem services but subsequent progress has been slow. In Chile, on the other hand, ecosystem services have been referred to only recently but that country's Environment Courts appear intent on giving the concept a greater role in the resolution of environmental disputes.

The role of investment arbitration in water services governance

The flux of foreign investment into the water industry that took place over recent decades had a significant impact on the relationship between water companies and states. The creation of a global network of international investment agreements also altered the method of adjudication of possible disputes between the parties. The emergence of global water markets and the advent of Public–Private Partnerships led to the emergence of what has been called Global Water Governance. This articles analyses how the decisions of arbitral tribunals in water-related disputes are becoming an integral part of this global regulatory system and discusses their impact on water services governance. Governments are increasingly required to have a thorough knowledge of the functioning and possible implications of the legal frameworks that underpin foreign investments in the water services market.

The EU’s Romance with Specialized Adjudication

In this editorial for the International Review of Intellectual Property and Competition Law, the EU’s recent moves to specialize adjudication of patent disputes and to set up a standing tribunal for investor-state dispute settlement are examined from the standpoint of experience in the US with the Federal Circuit.The final publication is available at Springer via http://dx.doi.org/

The Politics of Livability: Tutoring “Kinwork” in a New Delhi Women's Arbitration Center

This article provides an analysis of dispute adjudication in a women's arbitration center, or mahila panchayat, in New Delhi, India. In analyzing two exemplary cases from my fieldwork, I argue that mahila panchayat adjudication tends to tutor kinwork as a means of producing livable lives within a context of material and ideological constraint. Successfully adjudicated cases culminate in contracts that explicitly enumerate the demands of marriage and the requirements of reconciliation, thereby rendering disputants responsible subjects who are accountable to the contracts’ terms. This formal conclusion to the adjudication process reflects the mahila panchayat's politics of livability, which entail teaching women to live with and through kinship norms by recognizing and rationally relating to them.

Solution by Negotiation and Determination by Arbitration in Arab World Construction Disputes: Comparative Study between fidic Rules of 1987 and fidic Rules of 1999

This article deals with dispute settlement mechanisms for construction, in particular, fidic contracts. The fidic Rules provide for a two-step process of dispute settlement. The first step, which is amiable in nature, relies on the consulting engineer under the fidic Rules of 1987 and on the Dispute Adjudication Board under the fidic Rules of 1999. In the second step, the dispute will be submitted to arbitration for a binding decision upon the request of one of the parties. This article is concerned with the first step, and offers a comparative analysis of the fidic Rules of 1987, which depend on the consulting engineer, and the fidic Rules of 1999, which depend on the Dispute Adjudication Board.

The EU's Romance with Specialized Adjudication

In this editorial for the International Review of Intellectual Property and Competition Law, the EU’s recent moves to specialize adjudication of patent disputes and to set up a standing tribunal for investor-state dispute settlement are examined from the standpoint of experience in the US with the Federal Circuit.The final publication is available at Springer via http://dx.doi.org/

Dispute Resolution and Electoral Justice in Africa: The Way Forward

This paper examines electoral adjudication in Africa's democratisation process. The idea of aggrieved persons instituting election petition in court as opposed to resorting to mayhem is a positive sign in Africa's democratisation process. The aggrieved choose the law as their arbiter and put their hope in the law. This practice will facilitate the institutionalisation of succession and entrench the rule of law and constitutionalism. However, there have been misgivings about the outcome of judicial adjudication of these electoral disputes. Electoral disputes are not resolved expeditiously and courts decisions on such matters are sometimes overtaken by events. There is also the perception of judicial bias, corruption, and overwhelming political influence of the judiciary leading to lack of confidence in the process. In the same way the large numbers of election petitions put a lot of strain on the judiciary, clogging the courts. Alternate Electoral Dispute Resolution (AEDR), both formal and informal, offers avenues to resolving election dispute but this mainly pertains to pre-election disputes with post-election disputes being dealt with by the courts. In view of the proliferation of election petitions it is imperative that AEDR should be considered as a viable complement to adjudication. Also, voter education should be intensified on realistic expectations of elections by citizens so that election ends with the ballot and only genuine cases go through adjudication.

Regional Dispute Settlement

This chapter argues that the rise in regional courts is a game changer in regionalism that stands for more than just a commitment to use legal means to resolve economic disputes; it signals a commitment to uphold specific community values. Contrary to earlier waves of regionalism, many of these courts are not primarily engaged with trade. Instead, they are often activated to adjudicate cases involving good governance, human rights violations, as well as economic issues. But as we will see, their incidence and use across the globe is uneven. We place this development against the backdrop of a general rise in judicialized regional dispute settlement compared to so-called alternative dispute settlement mechanisms like negotiation, good offices, mediation, and binding arbitration. Most people see the lack of a regional court as signifying an aversion to legalized adjudication of disputes.

A Broader View of Justice?

Justice, like beauty, may also be in the eye of the beholder. For some individuals, whether or not an outcome, process and system are 'just' will depend on what is expected, available and perceived. From a societal perspective, however, the definition of 'justice' and determining the reach of the justice system as well as the location of just dispute settlement options have significant political, policy, social and funding implications. In this context, the framing of the civil justice system as inimical to the litigation and court system is no longer (if it ever was) part of the policy approach of governments within Australia. Justice is perceived as a much broader concept and the litigation system is more simply perceived as a part of this broader justice system. From this lens, judicial dispute adjudication is viewed as a smaller although critical dimension of the justice system that includes the far broader alternative dispute resolution (ADR) environment.

Kvalita voleb do Poslanecké sněmovny Parlamentu ČR

This text focuses on the integrity of elections to the lower chamber of the Parliament of the Czech Republic between 1998 and 2013. Its descriptive nature allows the following two main questions to be answered: What are the problems associated with Czech parliamentary elections? Can we identify any trend in the quality of these elections? The analysis employs a framework based on a “policy accountability” model of democracy previously used by Sarah Birch (2011). The analysis is based on various kinds of sources, mainly international observers’reports, laws, secondary analyses, and local news. The overall assessment of the quality of the analyzed elections is quite positive: Between 1998 and 2006 the quality of elections improved, and while it slightly deteriorated in 2010, it quickly returned back to the 2006 levels. The ability to provide equal information and the effective adjudication of disputes are identified as the most problematic aspects. Other parts of the electoral process are well-managed, with only negligible problems on the levels of electoral rules and electoral practice. The overall results differ little from the outcomes of available quantitative studies; however, they offer a deeper insight into the actual realization of demoratic electoral standards.

Employee privileges in the Polish tobacco industry in a period of Polish People’s Republic

Abstract Described privileges of determined employee groups in the Polish tobacco industry in a period of Polish People’s Republic on example of Kraków plants arose largely from the statute law, although not without meaning carried out its interpretation, by workers self-management and Company’s Dispute Adjudication Boards (CDAB). It was possible to notice the sign of appropriating privileges by determined employees groups not-arising from the existing law, but being a sign of aspirations to ensure a higher position for oneself in the unit through certain acquaintances and in consequence achieving common benefits, etc. informally. The article constitutes only a starting point for further in-depth studies covering employee issues in all tobacco industry in Poland.