Alternative Dispute Resolution Research Articles

Sulh as an Instrument of Alternative Dispute Resolution (ADR): Practice in Syariah Court of Negeri Sembilan

Sulh as an Instrument of Alternative Dispute Resolution (ADR): Practice in Syariah Court of Negeri Sembilan

Medical arbitration court: status and perspectives

Abstract. More than forty years ago, medical courts, which are arbitration tribunals (arbitration) for resolving medical malpractice disputes, emerged in the United States, while they remain relatively little known in our country. The problem of the study is the legal nature of medical disputes, the object is medical arbitration as a medico-legal phenomenon, the subject is the effectiveness of arbitration in resolving medical disputes. The issue of arbitrability, i.e. the admissibility of arbitration of a dispute: arbitration clauses are often challenged on the grounds that a patient could not reasonably express his or her will due to a medical condition. Despite conceptual difficulties, medical arbitration has been actively developed in the US since the 1980s. Its proponents emphasise a number of advantages over conventional litigation: speeding up the process, compensating a wider range of patients, reducing attorney fees, and improving patient safety. Opponents see as disadvantages the insufficient professional level of arbitrators, simplification of proceedings and its reduction to compensation payments, lack of connection between the activities of medical courts and improvement of the quality of medical care, transformation into an administrative procedure, "privatisation" of arbitration by large corporations. Some countries (South Korea, Indonesia, Mexico) implement arbitration in their country, but its results are rather modest. In Russia, medical disputes are characterised by increased complexity due to certain legal conditions. Alternative dispute resolution procedures are practically not used, and medical arbitration is expressly prohibited by the Code of Civil Procedure.

A EXIGÊNCIA DE POLÍTICAS PÚBLICAS PARA A CONTENÇÃO DA LITIGÂNCIA PREDATÓRIA

This article aims to analyze the phenomenon of predatory litigation, which consists of the abusive use of the Judiciary with the intention of causing financial harm to third parties. Initially, the history of predatory litigation in the United States is presented, with the creation of antitrust laws and jurisprudence on the subject. Next, the metaprocedural effects of predatory litigation are addressed, which go beyond the judicial decision and may have strategic motivations. The article also analyzes the perception of the phenomenon by the Brazilian Judiciary, with the identification of emblematic cases and the adoption of measures to curb this practice. Finally, public policies are proposed to address predatory litigation, with an emphasis on awareness, prevention, institutional strengthening, and the promotion of alternative dispute resolution methods. The goal is to contribute to the construction of a more efficient and fair justice system, capable of curbing the abusive use of the Judiciary.

THE ANALYSIS OF TAX DISPUTE RESOLUTION OF TRANSFER PRICING CALCULATION

Determining transfer prices is one of the legal methods in the field of taxation that can be used to obtain the most optimal profits for multinational companies by trying to get the lowest tax rates. The Indonesian government has regulated methods that can be used to calculate transfer prices between related entities. However, the transfer price calculation is still often a dispute between the Directorate General of Taxes (DGT) and Taxpayers (TP), the resolution of which takes a very long time and is mostly won by the Taxpayer. This is a burden for taxpayers and also for the government and can affect the business and investment climate. Based on this, the implementation of tax dispute resolution outside of court (non-litigation) or Alternative Dispute Resolution (ADR) can be considered, providing consultation services when taxpayers prepare transfer price documents, as soon as possible the DGT reviews the TP Doc that has been prepared and submitted by the taxpayer and regulate the criteria and procedures for selecting data / comparison companies in more detail.

ALTERNATIVE DISPUTE RESOLUTION AND COMMUNITY DEVELOPMENT IN IMO STATE, NIGERIA

This study focused on alternative dispute resolution and community development in Imo State (2013 – 2022). The study was based on the need to ascertain the relevance of alternative dispute approach in the development of the communities. The researcher developed and used three research objectives, three research questions and three corresponding hypotheses. The study was anchored on social justice theory. Data were collected through primary source (questionnaire) and secondary source (published materials) and the study used survey research approach. The population covered the entire 1,394,800 people from six local governments of the study area (2 from each of the zones in Imo State). The sample was 400 from the entire population, but only 370 copies of the questionnaire were returned from the 400 copies distributed. The data collected were analyzed using simple percentage and the hypotheses were tested using chi-square. It was discovered that there is significant impact of alternative disputes resolution on settlement of kingship disputes in Imo State; there is significant relationship between the alternative disputes resolution mechanism and settlement of land disputes in Imo State; and there is significant effects of alternative disputes resolution on settlement of disputes arising from development project in Imo State. The study concluded that alternative dispute approach is a panacea for dispute resolution in rural communities and if well handled will lead to community development. The work recommended that Alternative disputes resolution strategies should be effectively employed in settling all disputes relating to kingship, land disputes, and community projects so as to achieve community development.

Arbitration as a Medical Dispute Resolution Method under Indonesian Positive Law

Medical disputes arising from conflicts between patients and doctors/dentists can be addressed through litigation or non-litigation channels. Law Number 17 of 2023 concerning health mandates that all medical disputes must first be resolved through Alternative Dispute Resolution (ADR) outside of court. The aim of this paper is to analyze ADR as a method of resolving medical disputes in Indonesia and to examine the legality and potential of arbitration as a dispute resolution method under Indonesian law. The benefits of this study include providing a juridical understanding of medical dispute resolution according to Indonesia’s positive law and contributing to the field of health law. The study addresses the ambiguity and conflict of norms related to medical dispute resolution by employing normative legal research with a statute approach, supported by descriptive and evaluative analysis. The results indicate that, according to Article 310 of Law Number 17 of 2023, medical disputes must be resolved through non-litigation channels. Among the available ADR methods, arbitration offers advantages over mediation due to its binding final decision, making it more efficient for both parties. The legal foundation for arbitration in medical dispute resolution is outlined in Law Number 30 of 1999 concerning arbitration and alternative dispute resolution. Consequently, arbitration presents a new paradigm for resolving medical disputes in accordance with Indonesian positive law.

Mediation as a Prominent Dispute Resolution Mechanism

Getting justice from the Indian courts these days is highly costly and time-consuming. There are too many cases in the Indian courts. "Around five major cases are still pending in Indian courts at various levels as of December 31st, 2022" (NDTV, 20232). William Edward Gladstone famously said, "Justice delayed is justice denied." This suggests that justice will not be considered genuine justice if it is not provided on time or if it is offered later. Time is therefore extremely valuable in the judicial delivery system. As a kind of Alternative Dispute Resolution (ADR), mediation has emerged as a key tool for settling conflicts amicably (Nasir, 2020). Through mediation, the parties can reevaluate their rights and shared interests and develop new conflict resolution strategies. In general, the court process is formal, but mediation is more efficient, simpler, more useful, quicker, and less expensive. As a result, among arbitration, conciliation, and negotiation, mediation has emerged as the most often used technique in alternative resolution systems

Effect of Alternative Dispute Resolution on VAT Compliance Among Tax Agents in Nairobi County, Kenya

Purpose: Tax is a vital source of government revenue in almost all countries in the world as it ensures that the government can offer goods and services to the general public. Therefore, tax compliance is critical in all economies, which recognize the role played by revenue collected from tax in national development. The key aim of the current study was to establish the effect of alternative dispute resolution on value added tax compliance among tax agents in Nairobi County, Kenya. The study was anchored on the theory of conflict of management. Methodology: The study adopted an explanatory research design. The study targeted 321 agents in Nairobi County while the sample size was 178 respondents. In this study, 178 out of 134 distributed questionnaires were completed and returned correctly, achieving a 75% response rate. The study used primary data, which was collected through questionnaires. The data collected was analyzed using both descriptive and inferential statistics. A linear regression model was used to establish the strength of the relationship between independent and dependent study variables. Results: Alternative Dispute Resolution also exhibits a positive and significant correlation with VAT Compliance, with a coefficient of β =0.093 p<0.05. Conclusion: The study recommended that the KRA should enhance its alternative dispute resolution mechanisms by providing clear guidelines, increasing the availability of mediation and arbitration services, and ensuring that tax agents are well-informed about these options. Future research should examine the impact of the regulatory framework on VAT compliance.

Azərbaycan Respublikasinda arbitraj mübahisələrin həllinin alternativ üsulu kimi

The article analyses in detail the recently adopted Law on Arbitration in the Republic of Azerbaijan, which was intended to replace the Law on International Arbitration. The Law sets out the categories of disputes subject to arbitration, the criteria for the selection of local arbitrators and the rules for the recognition and enforcement of arbitral awards. Particular attention is paid to the development of a system of domestic arbitration as a means of reducing the judicial burden, as well as harmonising the country's arbitration practices with international standards. The article also extends the discussion by raising questions about the history of arbitration, beginning with its origins as a method of resolving conflicts without involving the judicial system. The evolution of arbitration is examined in detail, emphasising its ancient roots and its gradual development in many cultures and legal systems. Special emphasis is placed on the term "arbitration courts" in the Republic of Azerbaijan, exploring the specifics and peculiarities of the local context of arbitration. In addition, the article touches upon the important comparison between arbitration and mediation in our state, highlighting the differences and similarities between these two methods of alternative dispute resolution. Both methods stand out as key tools in legal practice, helping to resolve conflicts and strengthen business relationships. Keywords: law on arbitration, alternative dispute resolution, arbitration, arbitration agreement, arbitral tribunal, international arbitration, arbitration organizations, arbitration award, mediation

Critical Analysis Of Law No. 30 Of 1999 On Arbitration And Alternative Dispute Resolution Related To The Potential Development And Implementation Of Online Arbitration

This paper critically examines the relevance of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution in the context of online arbitration. With the rapid growth of e-commerce and the increasing reliance on technology for dispute resolution, the legal framework governing arbitration in Indonesia has become outdated. While various arbitration institutions, such as BANI and the ICC, have adopted online arbitration processes, the existing legislation fails to accommodate these developments. This research highlights the potential legal uncertainties that arise from the lack of provisions for online arbitration in the current law and underscores the need for immediate legislative revisions. By analyzing relevant legal norms and the implementation of electronic arbitration regulations, the study aims to provide insights into how the law can be modernized to better serve the needs of contemporary dispute resolution practices in the digital age.

Alternative Dispute Resolution: Historical, Customary Practices & Legal Aspects of Nepal

This paper focuses on the use of ADR in Nepal based on analyzing the historical background, cultural practices, and existing laws. The research's main objective was to identify how the ADR is practiced in the communities and in the judicial system of Nepal. The basic approach of research was doctrinal and in this approach primary sources regarded the constitution of Nepal and Acts likewise secondary source was taken as published articles and reports. It starts with background information on what peaceful conflict resolution is and how disputes are settled by mediators such as the elders and village assemblies conducted in communities. These are cultural methods of solving conflicts and they have been in use before the legal structures were formulated in Nepal. The paper also discusses the different forms of traditional ADR that have been incorporated into the contemporary Legal System of Nepal. It also surveys prominent statutes such as the Arbitration Act and the Mediation Act and how these laws assimilate and police traditional practices into and within the legal process. More specifically, the study compares the various conventional techniques, viewpoints, and designs used to address the issues of compliance with customary practices and measures the extent of the effectiveness. The paper nonetheless seeks to contrast between the traditional approaches and the legal frameworks to illustrate the need to embrace cultural practices alongside access to justice. The research found that the use of ADR is in different sectors of the communities and organizations, including international trade disputes and the law of Nepal has opened to settle disputes outside of the court system

Dispute Resolution in Sharia Banking: Challenges and Judicial Reform for Enhanced Legal Certainty

Sharia banking, a growing sector within Indonesia's civil law system, operates under Islamic legal principles while serving diverse clients, both Muslim and non-Muslim. This research explores the challenges in resolving disputes within Sharia banking, emphasizing the need for judicial integration. The study utilizes both a legislative and conceptual approach, examining relevant laws and regulations, while developing a comprehensive framework for judicial reform. Results indicate that despite the Religious Courts' authority over Sharia economic disputes, jurisdictional ambiguity persists, often leading to confusion. Additionally, the study highlights the importance of alternative dispute resolution (ADR), such as mediation and arbitration, which aligns with Sharia principles and offers a faster, cost-effective means of resolving disputes. The findings suggest that a unified judicial system, with the Religious Courts as the sole authority in Sharia economic disputes, coupled with strengthened ADR mechanisms, would promote legal certainty and support the sustainable development of Indonesia's Sharia banking sector. Implications include recommendations for enhancing regulatory frameworks, improving judicial competence, and fostering collaboration between regulatory authorities, industry stakeholders, and the judiciary to ensure fair and efficient dispute resolution

A Review of Alternate Dispute Resolution (ADR) Methods in the Construction Industry with Special Reference to the Arbitration & Conciliation Act 1996

The construction industry is considered the second largest industry after agriculture. It works purely on a contract basis, based on the Indian Contract Act 1872, with the client on one side and the contractor on the other. The execution of the work and the project is monitored and controlled by qualified Consultants and Engineers. The industry is characterized by its complexity, diversity, and dynamic nature. Disputes in the construction industry are common and can arise from various causes, often leading to delays, cost overruns, and damaged relationships between stakeholders. We have various dispute-resolution methods which will help both parties to amicably solve the disputes.

Mediation as an Alternative Dispute Resolution Method: a comparative analysis between Ecuador and Argentina Conflicts: comparative analysis between Ecuador and Argentina

Within the regulatory frameworks of Ecuador and Argentina, which have been analysed and compared, mediation is presented as an alternative dispute resolution mechanism in which an impartial third party, the mediator, facilitates negotiation between the parties involved in order to reach a consensual agreement. This study focuses on analysing various aspects of mediation in both countries, including the similarities and differences between their legal frameworks, the legal effects of the mediation act, the procedures for accessing mediation, the mediation methods applied, the requirements for the mediator's position and the resources available for mediation. In the comparative analysis, the regulatory frameworks of both territories are examined in detail. This research adopts a deductive approach methodology, which implies a detailed analysis of the relevant legislation for the study.

TUTELA PROVISÓRIA EM ARBITRAGEM

This paper explores provisional measures in the context of arbitration, highlighting their significance in contemporary procedural law. Arbitration, as an alternative dispute resolution method, faces challenges in its interaction with state jurisdiction, particularly regarding the granting of provisional measures. The study addresses the models of competence for granting these measures, the interaction between state and arbitral tribunals, and the influence of the Civil Procedure Code on the arbitral procedure. The systematization of provisional measures in the CPC and their implications in arbitration are explored. The article examines provisional measures before and during arbitration, including the role of the emergency arbitrator and the complexities of simultaneous requests to the judge and arbitrator. The importance of the interaction between arbitration and the judicial system for the effectiveness of the arbitral process is emphasized, contributing to the understanding and development of procedural law in arbitration.

تسوية المنازعات في القانون التجاري - على ضوء القانون رقم 95.17

Mechanisms for settling commercial disputes have become one of the manifestations of legal and economic thinking at world level, a desired tool for regulating and stimulating national and international trade, and an important and essential factor in increasing the flow of investment and alleviating the burden on the national judicial system, prompting the various countries - at the highest level - to attach great interest to this peaceful means. In this respect, the high speech of His Majesty King Mohammed VI on the occasion of the opening of the judicial year on 29 January 2003 in Agadir affirmed the following: ‘.... Thus, in accordance with Our firm desire to continue working to promote investment and in application of Our directives set out in the letter We sent to Our Prime Minister to this effect, we invite Our Government to continue its efforts to modernise the justice system, by rationalising work, simplifying procedures and ensuring the widespread use of information technology. It is also necessary to diversify the procedures for the consensual settlement of disputes that arise between partners in commercial transactions, by proceeding, with all due speed, to draw up a draft law on national and international commercial arbitration, which will enable our judicial system to meet the requirements of globalisation and economic competitiveness, and to help attract foreign investment’. In his speech on the occasion of the anniversary of the Revolution of the King and the People on 20 August 2009 in Tétouan, His Majesty added that: ‘...At the same time, alternative dispute resolution methods such as mediation, arbitration and conciliation should be developed, alternative sentences should be applied and local justice should be reviewed....’. Then the speech of 14 October 2022, which stated: ‘Today, we are banking on productive investment as an essential lever for reviving the national economy and anchoring Morocco in promising sectors’.

Resolving disputes in mediated “gig” work: How marketplace structure influences the impartiality of dispute handling by labor market intermediaries

AbstractScholars of work disputes have mostly focused on alternative dispute resolution (ADR) by employer organizations. With the context of work changing, disputes in mediated “gig” work should also be subject to scholarly analysis. To examine factors influencing the impartiality of ADR by labor market intermediaries, we focus on intermediary dispute handlers and the relationships these private regulators have with dispute parties. Building on the ethnography of disputing literature, we uncover how, depending on the structure of their marketplaces, intermediaries may frame their third‐party role differently and influencing the impartiality of their ADR processes. The paper illustrates this point, drawing on fieldwork inside a labor platform and a temporary staffing agency. Existing explanations focus on the promise of impartiality of ADR by an external third‐party. Using interview, observational, and archival data, we analyze third‐party roles in mediated labor markets and posit that impartiality is primarily linked to marketplace structure.

Flaws in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – A Critical Study

The successful execution and overall impact of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), may face significant challenges due to various pressing issues. Among these are vague protocols surrounding private arrests, mixed terminology related to police custody, and unclear guidelines regarding community service as a penalty. Furthermore, the BNSS fails to provide clear directions for filing electronic FIRs, employing audio-visual techniques for witness examinations, and outlining the process for reimbursing witness costs. Concerns also arise from the absence of well-defined grounds for bail cancellation, inadequate enforcement of the Witness Protection Scheme, and procedural deficiencies in the collection of forensic evidence. Furthermore, the BNSS fails to address alternative dispute resolution methods and relies on insufficient resources, such as officers' personal mobile phones, for important tasks like video documentation during search and seizure operations. These flaws have the potential to undermine the intended objectives of the BNSS and pose significant operational challenges.

CONSUMER PROTECTION IN HIRE PURCHASE TRANSACTIONS: A CASE STUDY OF GHANA’S LEGAL FRAMEWORK

Objective: This study critically examines the effectiveness of Ghana's Hire Purchase Act 1974 in safeguarding consumer interests in modern hire purchase agreements. Theoretical Framework: The focus of analysis is the regulatory framework for hire purchase transactions in Ghana in comparison to UK and Australia. Method: The methodology adopted for this research comprises [concisely describe the study design, including approach, participants, instruments, procedures, etc.]. Data collection was carried out through [explain the specific methods used, such as interviews, questionnaires, observations, among others. Results and Discussion: The Act provides fundamental consumer protections through requirements for written agreements, disclosure of terms, and rights to terminate agreements. However, it faces challenges in addressing contemporary market realities, particularly digital transactions, and in providing accessible dispute resolution mechanisms. The study identifies key areas for improvement, including modernization of the Act, introduction of alternative dispute resolution options, strengthening enforcement capabilities, and enhancing consumer education initiatives. Research Implications: These findings contribute to the ongoing discourse on consumer protection in Ghana and offer valuable insights for policymakers considering reforms to the hire purchase regulatory framework. The research emphasizes the need for a balanced approach that enhances consumer protections while maintaining a vibrant hire purchase market in Ghana. Originality/Value: Overall, the study offers a unique and valuable perspective on the effectiveness of Ghana's Hire Purchase Act and provides actionable recommendations for improvement.

Contractual challenges in renewable energy projects: The role of ADR in managing risks and disputes

Renewable energy projects are increasingly pivotal in the global transition to sustainable energy systems. However, these projects face unique contractual challenges that can lead to disputes and risks, impacting project timelines and costs. This paper explores the critical role of Alternative Dispute Resolution (ADR) mechanisms in managing and mitigating these challenges. The study highlights common contractual issues encountered in renewable energy projects, including ambiguities in contract terms, scope changes, and performance obligations. It examines how ADR methods, such as mediation, arbitration, and adjudication, offer effective solutions for resolving disputes and minimizing disruptions. By analyzing case studies and industry practices, the paper demonstrates the efficacy of ADR in addressing specific issues such as delays, cost overruns, and compliance failures. The findings underscore the importance of incorporating ADR clauses into contract frameworks to enhance dispute resolution processes and risk management strategies. The paper concludes with recommendations for integrating ADR into contractual agreements and emphasizes the need for stakeholders to proactively address potential disputes to ensure project success.