Alternative Dispute Resolution Research Articles

Exploring the Practice of Victim-Offender Mediation, to Proceed or Retrieve: The Case of Ghana

In contrast to the State-centred perspective, which is based on criminal jurisprudence and holds that crime is committed against the State rather than the victim, the primary party. Victim-Offender Mediation (VOM), also known as restorative justice or transformative justice, aims to resolve some criminal offenses amicably. It appears the State is ignoring the victim's needs, restoration, interests, fears, and desires in order to proceed with the prosecution as it sees fit to settle its disputes in the strict criminal justice system. Outcomes sometimes appears unsatisfactory to victims, offenders, families, and the public. The paper conducts a theoretical and historical examination of VOM from a global as well as a Ghanaian viewpoint. Despite a few minor difficulties, it notes that VOM has been embraced by many states all over the world because the benefits far outweigh the drawbacks. Additionally, it has been noted that Ghana's judicial system supports the use of VOM. In particular, the Courts Act, 1993, the Alternative Dispute Resolution Act, 2010, and the Court- Connected ADR Practice Manual, 2010 call for the encouragement, promotion, and facilitation of amicable settlements of offenses that do not amount to felonies and do not qualify as serious offenses. The practice of VOM in Ghana has not only helped victims receive restorative justice and emotional healing, improving access to justice for the poor and vulnerable, but has also contributed to reducing the load and pressure of cases placed on the courts, which causes the wheel of justice to turn grind slowly. As a result, rather than eliminating VOM in Ghana, efforts must be made to strengthen and institutionalize it.

Appraisal of Challenges Confronting Recognition and Enforcement of Arbitral Awards in Nigeria

Arbitration is an alternative dispute resolution method often commenced by express agreement of parties in a dispute. Arbitration has become an increasingly preferred method of settling commercial disputes and thought to have advantages over the traditional litigation. However, a problem could emerge where one party to the arbitration is unwilling to comply with the terms of the award. In this case a successful party is left with no option than to use the enforcement machinery of the courts. This paper adopts the doctrinal approach in discussing the issues with the procedure provided for in the various rules of courts for recognition and enforcement of arbitral awards. It also identifies the challenges inherent in the recognition and enforcement of arbitral awards. The paper identifies other enforcement machineries outside the courts and concludes that arbitration, if not properly managed may ultimately cause delay in enforcement and become a time wasting method therefore defeating the very essence of opting for arbitration instead of litigation. Keywords: Challenges, Recognition, Enforcement, Arbitral Award

Intellectual Property Law's Confiscatory Losses: Its Application in Dynamic Network Environments

This paper discusses confiscatory losses in the dynamic network enforcement of intellectual property (IP). IP law protects copyrights, patents, and trademarks. Instead, IP enforcement may consequence in "confiscatory damages." This occurs when the defendant's property is apprehended pursuant to a court order. For both individuals and companies, the internet has made sharing and disseminating innovative creations simpler. IP infringement is also increased by this. In these circumstances, IP law enforcement has become more crucial. Penalisations and sanctions for IP infringement in these conditions may be severe and upshot in confiscatory losses. So as to apply confiscatory losses in dynamic network conditions, this paper suggests reviewing IP law enforcement strategies. Hence, IP infringement penalisations and compensation should be proportionate to the harm caused and avoid confiscatory losses. Moreover, IP infringement can also be minimized by education, information, and alternative dispute resolution. IP law enforcement in dynamic network systems must strike a compromise between protecting IP rights and sidestepping confiscatory damages. 

공동주택 하자분쟁해결 제도의 현황 및 개선방안 연구

The purpose of this study is to examine the current status of alternative dispute resolution systems for disputes related to defects in apartment complexes and to suggest improvement measures from a legal system perspective. To this end, Chapter 2 examines defects and collateral liability in apartment complexes. This article researches the concept and types of defects in apartment complexes under the current law, and studies the main points of liability for defects in apartment complexes under the ｢ Apartment Housing Management Act｣ and the defect repair deposit system. Through this, the main points of defects and collateral liability for apartment complexes under positive law and the contents of the system for guaranteeing the same are identified. Chapter 3 examines the overall details of the alternative apartment complex defect dispute resolution system. To this end, this article researches the basis for establishing the Defect Review Dispute Mediation Committee under the ｢Apartment Housing Management Act｣ and the Consumer Dispute Mediation Committee under the ｢Framework Consumer Act｣ and the method of organizing the committees. In particular, regarding the Defect Review and Dispute Mediation Committee, related regulations are examined in detail, focusing on the defect review system, dispute mediation and financial systems. Chapter 4 examines the tasks for improvement in the legal system and looks at improvement measures for efficient and fair multi-housing dispute resolution. These improvements include discussion of improvement measures from a legal theoretical perspective as well as policy improvement measures. Chapter 5 summarizes and organizes the main contents of this paper as a conclusion and provides additional explanations on legal and institutional improvement tasks.

An Analysis of Judicial Intervention and Assistance for Arbitral Proceedings: A Look at the Courts of Ghana

Without the support of national courts, arbitral tribunals are unable to function properly, particularly in situations involving the  enforcement of arbitration agreements, procedural orders, and arbitral awards, among other things. The arbitral tribunal cannot compel  a party to carry out a task, or obligation, or fulfil an obligation. The court has the authority to order a party to carry out an order and can  also impose harsh consequences for contempt of court, such as fines, imprisonment, or other punishments. Unless the issue(s) before  the court are non-arbitrable pursuant to section 1 of the Alternative Disputes Resolution Act, 2010. The courts of Ghana have the capacity  and jurisdiction to enforce applications by a party for arbitration. The New York Convention, which also grants national courts of  contracting states authority to hear cases involving the enforcement of arbitration agreements, has been ratified and domesticated by  Act 798 under the First Schedule. The paper argues that even though national courts are permitted by statutory laws and international conventions to assist in arbitral proceedings, courts must exercise some restraint and must not be in a hurry to inherit jurisdiction and  interfere with disputes before arbitration, since arbitration proceedings are considered alternative methods of resolution of disputes to  litigation, and unless expressly provided for and in obvious instances devoid of any controversy. A purported judicial assistance should  not be used to whittle away the function of arbitral tribunals and render nugatory the benefits that are to be derived from these  proceedings as it would defeat the concept of Alternative Dispute Resolution (ADR). The paper concludes by suggesting that unnecessary  interventions by some national courts including Ghana appear to be interfering with party autonomy as well as the competence of the  arbitral tribunal, hence, hindering the purpose for which the Alternative Dispute Resolution Act 2010 was enacted and other supporting  legislations and conventions as an alternative to litigation which is non-voluntary, expensive, acrimonious and complicated. 

An empirical study of marine environmental civil public-interest litigation in China: Based on 216 cases from 2015 through 2022

This article examines marine environmental civil public-interest litigation landscape in China based on a comprehensive empirical study of 216 cases adjudicated from 2015 through 2022. Marine environmental civil public-interest litigation is under robust development in China with the number of cases increasing and high-profile cases emerging. Many cases were built upon related criminal and administrative proceedings and the procuratorate, as a qualified plaintiff, has led in initiating litigation. The liability system is maturing with flexible remedies and a high plaintiff win rate. First-instance judgments were rendered effectively and alternative dispute resolution was used. Besides the notable progress deserving attention, there are still several obstacles yet to be overcome, such as the divergence in the categorization of cases, the application of law and the attitude towards the standing of environmental NGOs. Besides, the number of cases initiated by marine environmental supervision and management departments is relatively small and jurisdictional matters also need to be further clarified. A feasible approach to overcome these obstacles is to come up with a set of systematic and coordinated rules in this field either by releasing specialized judicial interpretations on marine environmental public-interest litigation or by revising the existing Marine Environmental Protection Law when appropriate. By this means, it could potentially optimize the system of marine environmental civil public-interest litigation and enhance its efficacy in protecting the marine environment and resources.

A Comprehensive Comparative Analysis of Mediation Practices in Indonesia and Malaysia

Mediation is one of the Alternative Dispute Resolution (ADR) that emphasises a mutually agreeable resolution and incorporates a win-win situation between parties. Mediation is not a rare concept in Indonesia and Malaysia. People in Indonesia and Malaysia have long used mediation in their daily lives as mediation has been proven to be effective since long ago. Due to its extensive use in Indonesia and Malaysia, a comprehensive study was carried out by the researcher to identify the comparison of mediation in Indonesia and Malaysia. In this paper, the researcher will review the practice of mediation in Indonesia and Malaysia via a comparison analysis where the researcher employs a qualitative approach via library-based research. Many reference sources and reading materials have been used by researchers to see similarities and differences between these two countries. The result of this study affirms that mediation practices in Indonesia and Malaysia are quite similar, despite being governed under a different law and regulations. In addition to having many similarities, one of the things that attracted the researcher's attention is that both countries have their challenges in carrying out mediation. Therefore, this aspect of the challenge also needs to be touched upon so that mediation can be conducted in both countries smoothly. It is also hoped that with this study, in the future, this study can also be used as a guide or manual in discussing mediation for both countries.

The Potency of Alternative Dispute Resolution in Resolving Ugandan Civil Disputes: A Comprehensive Examination and Recommendations

Alternative Dispute Resolution (ADR) has gained significant traction globally as a preferred method for resolving conflicts outside traditional litigation processes. In Uganda, the legal community has embraced ADR due to its potential benefits in expediting conflict resolution and reducing costs. This study delves into the efficacy of ADR in the Ugandan context, employing a documentary research approach to analyze various sources including legal texts, journals, and essays. It explores the historical background of ADR, its conceptual framework, and its integration into the Ugandan legal system. The study highlights the success of ADR initiatives, such as mandatory mediation in commercial courts, and proposes recommendations for further enhancing its utilization. These recommendations include empowering corporate directors to handle employee disputes through ADR, expanding mediation to include personal injury claims, and making ADR a prerequisite for litigation in civil cases. The findings underscore the potential of ADR to alleviate case backlogs, improve access to justice, and foster a fairer and more efficient legal system in Uganda. Keywords: Advocates, Alternative dispute resolution, Civil disputes, Potency, Ugandan legal system

AN EVALUATION OF ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN THE AFRICAN REGION

Alternative dispute resolution (ADR) in Africa is growing and flourishing but the region is not a global leader in conflict resolution. The African region still has many challenges to overcome. The region has the potential to expand, grow and thrive with foreign direct investment to boost its economies and ensure stability for its infrastructure. The African region is rich in many natural resources, but, unfortunately, interstate conflict causes instability to social, political and economic rights. This article explores the weaknesses and challenges within the African region with a view to activating the potential of the region to become a global leader in alternative dispute resolution. The enforcement and implementation mechanisms of alternative dispute resolution require an evaluation of current systems to ensure that there is an animate thrust of dispute resolution. The African systems have their strengths, but an evaluation of any system always exposes weaknesses. Corruption within the African region is a common theme, since government does not play an active role in deterring corruption, and this causes the public to mistrust all initiatives that stem from government influence. The article discusses the situation in four African countries, showing that corruption, lack of education and a lack of skilled ADR practitioners cause a dysfunctional system that cannot embrace ADR. For an ADR system to function smoothly, numerous ADR practitioners are needed to resolve conflict competently. Furthermore, a selective system of favouring laws that support only the government as opposed to investors causes an imbalance, and discourages investors from investing in Africa. A way needs to be paved, not to negate international practices relating to investor disputes, but rather to work holistically with national laws, to harmonise laws and overcome any conflict of law within the region.

Civil Procedure Takes a Bold Step: Unravelling the changes to service out of the jurisdiction and the Civil Procedure Rules in the British Virgin Islands

Abstract Following years of consultation, the ECSC Civil Procedure Rules 2000 gave way to the revamped and refreshed ECSC Civil Procedure Rules, Revised Edition 2023 (Civil Procedure Rules, Revised 2023), which came into effect on 31 July 2023. The Civil Procedure Rules, Revised 2023, brought sweeping and significant changes to civil practice and procedure, particularly in the areas of service out of the jurisdiction, relief from sanctions, and costs. The Civil Procedure Rules, Revised 2023, gave birth to a novel alternative dispute resolution mechanism, the Judicial Settlement Conference, intended to complement the well-established out-of-court arrangement of court-ordered mediations.

LEGAL CERTAINTY OF ALTERNATIVE DISPUTE RESOLUTION MEDIATION

If you look deeper into the substance of arbitration, the regulations are more dominant compared to the regulations regarding alternative dispute resolution. This arrangement is very important regarding the legal capacity of a mediator in carrying out his mediation function. Alternative dispute resolution in Indonesia is a tradition that has been implemented for a long time, such as in customary law in rural communities. An alternative model for resolving disputes in customary law communities is carried out by means of deliberation to reach a consensus. Dispute resolution through mediation is much more effective and efficient in terms of time, energy and costs when compared to dispute resolution through court. the process of resolving disputes through mediation is final and binding. The method used in this research is normative juridical. where doctrinal research is related to mediation within the framework of norms that have been abandoned or there is a legal vacuum. the rules regarding mediation are very simple while the legal requirements are increasing. the substance of the mediation arrangements is incomplete, such as arbitration. National legal product was regulated arbitration and alternative dispute resolution. in addition to being able to resolve civil disputes to general courts, there is also the possibility of submitting them through arbitration and alternative dispute resolution. laws arbitration and alternative dispute resolution such as mediation do not have legal certainty, because the substance of the mediation arrangements is incomplete.  This is certainly detrimental to the disputing parties. Supreme Court regulated vacuum law to control this legal proceeding. The mediation process is carried out based on the practices that apply in the field. This is certainly detrimental to the disputing parties, and reduces public interest in resolving their disputes through mediation Keywords: Dispute Resolution; Mediation; Legal Certainty

Access to Justice: A Taxonomy of Conflict and Dispute Phases

The existence of conflicts and disputes in consumer trade has great implications for many parties because its effects can affect the current situation of consumers and the country's trade sector. Dispute resolution bodies that are procedural, ethical and have their own positive values, need to play a role in dealing with disputes brought by the parties involved. Traditionally and in practice for centuries, the court has an important function to administer and uphold the law by hearing any dispute filed according to the established procedure. This privilege, however, did not last long because consumer trade disputes changed direction by choosing alternatives and other forms of resolution mechanisms that more suit their needs, such as various Alternative Dispute Resolutions (ADR) mechanisms. This paper employs a qualitative research method to achieve the objective in discussing several theories of conflict and disputes analyse by several prominent experts. Various types of conflict theories that lead to several forms of disputes and a variety of management techniques or responses to control them from continuing are also detailed. For consumer trade disputes, the history and background of access to justice for consumers was also studied to get the real scenario of disputes that consumers often face, especially in the current era.  

Conflicts Beyond Borders – Possibilities for International Alternative Conflict Resolution

Mediation is one kind of procedures to solve a conflict. Mediation is based on the voluntary participation of the parties. Mediation is a voluntary process in which an impartial person (the mediator) helps with communication and promotes reconciliation between the parties which will allow them to reach a mutually acceptable agreement. It is a procedure, in which an intermediary without adjudicatory powers systematically facilitates communication between the parties with the aim of enabling the parties themselves to take responsibility for resolving their dispute. The procedure has the character of confidentiality and the neutrality. Mediation is a negotiation procedure facilitated by a neutral third-party who assists the parties in moving to resolution. The neutral third party has no control over the outcome of the case and conflict, but controls and directs the process itself, he or she is responsible for the procedure. While court proceedings are authoritative, formalised and claim-oriented, mediation offers a flexible, self-determined approach in which all aspects of the conflict -independent of their legal relevance- may be considered. Against this background, mediation -in contrast to court proceedings- is described as alternative dispute resolution (ADR). The question is: to solve the conflict and find a solution or to transform a conflict and reshape the connection between the parties? What is the matter when the mediation process has to be conducted between parties, who live in different countries or when one person of the parents just want to go abroad with the common child or children. How can cross-border mediation help? This publication tries to show a possible answer.

Bentuk Perlindungan Hukum Penyelesaian Sengketa Pinjaman Online di Indonesia (Suatu Pendekatan Norma Hukum)

The research aims to explore and analyze legal protection for parties in online loan transaction disputes and alternative dispute resolution through online loan application service networks. The type of research is normative legal research (normative research) using a statutory approach, a conceptual approach, analysis of legal materials is carried out by interpreting and assessing related laws and regulations and selecting relevant legal materials. The research results show that legal protection for parties in transaction disputes through the online loan application service network must be based on an agreement based on mutual agreement with the legal online loan provider and a dispute resolution institution must be determined in the initial agreement, carrying out legal enforcement for unlawful acts committed by the provider. and provide, in principle, this protection to protect the rights of debtors as consumers, resolving disputes in online loan transactions for technology-based loan actors because borrowers still do not know in detail the dispute resolution mechanism, Financial Services Authority Regulation Number 77/POJK. 01/2016 Article 29 letter e only regulates the principle of dispute resolution which is carried out simply, quickly and at low cost, the parties can freely choose a dispute resolution institution that has been recommended by the Financial Services Authority.

Alternative Dispute Resolution (ADR) And The Settlement of Matrimonial Disputes in Nigeria

Alternative Dispute Resolution (ADR) And The Settlement of Matrimonial Disputes in Nigeria

THE CHALLENGES OF INVESTMENT ARBITRATION: SUCCESS OR FAILURE? A COMPARATIVE ANALYSIS OF INVESTMENT ARBITRATION IN NORTH MACEDONIA AND KOSOVO

Background: In today's modern business and technological landscape, businesses are increasingly inclined to seek alternative methods for resolving disputes rather than rely solely on traditional court procedures. Businesses are also increasingly aware of the significance of resolving conflicts through alternative means and taking proactive measures to avoid litigation. In recent decades, investment arbitration has gained widespread acceptance and has emerged as a preferred mechanism for resolving disputes involving international investors in Western Balkan countries. Some countries demonstrate a favourable inclination towards employing arbitration as a dispute resolution mechanism by enacting legislation that grants investors the right to initiate arbitration proceedings against the state in case of failure. This scientific research objective will be achieved through the reflection of the legislative framework in the matter of investment arbitration as well as the reflection of the flow of foreign investments, analysing and not limited to the treatment of concrete cases of arbitration disputes. Through this approach, we will answer the central question of how much arbitration as an alternative dispute resolution mechanism is a stimulating factor for attracting foreign direct investment or whether multinational companies only use the legislative and incentive favours offered by the Republic of Kosovo and North Macedonia. Methods: The article was conceived based on a modern methodological framework. Within the general methodological framework of scientific research, logical methods play a crucial role in the scientific processing of the research data, drawing conclusions and determining facts through which the truth of the thesis of the work is reached scientifically. In the context of this paper, the method of analysis through which the impact of arbitration as an alternative dispute resolution mechanism in relation to the flow of investments will be analysed is noteworthy. Additionally, methods of abstraction and concretisation will also be used. Abstraction is the basis of analysis, which sometimes represents the separation of parts from the whole subject. Moreover, the comparative method will highlight the diverse normative solutions in national legislation and international legal sources. Results and conclusions: In the article, the authors propose considering the effectiveness of existing provisions and determining whether adjustments or alternative approaches are needed to maximise the benefits of foreign investment while minimising potential risks and uncertainties associated with dispute resolution processes.

Dispute Causes Analysis Using Analytical Hierarchy Process for Capstone Projects

Abstract: A disagreement, conflict, or subjective matter that leads to a legal process is termed as a dispute. The likelihood of a dispute arising in a loosely framed large scale construction project is high, which has an impact on project progress and can be considered a type of project risk. When different parties associated with the project are unable to resolve the disputes arising during the contract period it can be resolved by applying Alternate Dispute Resolution (ADR) technique which includes Arbitration, Litigation, Mediation and Conciliation. There are several types of construction disputes in construction projects like price escalation claim, change of work order claim, extra item claim, variation claim, loss of profit claim, delay claim which can be differentiate in various categories of dispute causes.

The Role of Alternative Dispute Resolution (ADR) in Pakistan's Legal System

This article explores the transformative role of Alternative Dispute Resolution (ADR) in Pakistan's legal system, focusing on mediation, arbitration, and conciliation. ADR proves pivotal in addressing challenges like case backlog offering efficient and accessible dispute resolution. Its cost-effectiveness and participant-driven nature make it inclusive. ADR's adaptability fosters creative solutions, particularly in family and community disputes, emphasizing relationship preservation. Despite challenges, ongoing initiatives aim to enhance awareness and overcome cultural barriers. Looking ahead, ADR's promising future in Pakistan is marked by legislative reforms and growing cultural acceptance, heralding a shift towards a more collaborative and efficient legal landscape.

OUT-OF-COURT RESOLUTION OF CONSUMER DISPUTES UNDER THE EUROPEAN UNION LAW

The subject of the article is an analysis of out-of-court methods of resolving consumer disputes in European Union law. They constitute a procedural guarantee of the implementation of consumers’ right to a high level of protection, guaranteed in Art. 38 of the Charter of Fundamental Rights of the European Union. The article describes Directive 2013/11/EU on alternative dispute resolution for consumer disputes. The principles of its implementation in European Union countries are also presented. Also addressed by the analysis is the latest proposal to amend the ADR Directive presented by the European Commission. According to the author, Directive 2013/11/EU has fulfilled its role as the foundation of the consumer rights protection system in the European Union. However, with the development of services on the internet, consumers are exposed to new threats. The proposal to modify the ADR Directive presented by the European Commission is a step aimed at increasing the level of consumer protection.

The Use Of Mediation As An Alternative Dispute Resolution In The Settlement Of Investment Disputes

Investment or investment has a very important function regarding will improve the development of the state of the country's economy. This investment is an activity carried out by the business world in order to improve people's living standards. The purpose of this study is to determine how the forms of dispute resolution in domestic investment according to Law No. 25 of 2007 and how the obligations and responsibilities of investors. By using normative juridical research methods concluded: the form of domestic investment dispute resolution according to Article 32 of Law No. 25 of 2007 is through deliberation and consensus; arbitration, Alternative Dispute Resolution, courts, and especially between disputes between governments and foreign investment, disputes are resolved through international arbitration that has been agreed. According to Article 15 of Law Number 25 of 2007, the obligation of investors in Indonesia is to apply the principles of good corporate governance, carry out corporate social responsibility (corporate social responsibility)while the responsibility of investors is regulated in Article 16, namely: ensuring the availability of capital from sources that do not conflict with the provisions of laws and regulations; to bear and settle any liability for losses if the investor ceases or abandons or abandons business activities unilaterally in accordance with the provisions of applicable laws and regulations; to create a healthy competitive business and to prevent practices. Investment mediation is the right choice because mediation is the spirit of local Indonesian stakeholders in resolving disputes and currently the international community is applying it as evidenced by ICSID offering wide access to mediation with countries, State entities or REIOS related to investment.