Arbitration Board Research Articles

Rekonstruksi Lembaga Penyelesaian Sengketa Akad Pembiayaan Dengan Jaminan Hak Tanggungan Pasca Putusan Mahkamah Konstitusi Nomor 93/PUU-X/2012

The purpose of this research is to know the reconstruction of dispute resolution institutions of financing agreement with mortgage guarantee interest in Islamic banking practices following the Ruling of the Constitutional Court Number 93 / PUU X / 2012. In addition to this, the importance of this research is to the development of Islamic banking institutions in Indonesia and economic law, particularly the law of Islamic economics. For researchers, the importance of this study is to realize the competence of researchers in developing science insightful of sharia law, especially law of syariah economic.The method in this research, using qualitative tradition, its operation carried out in accordance kostruktivisme paradigm. The relative position (stand point) the authors of the problem in this study at the level epiteme not as a participant but instead as an observer. Strategy Research carried out by the two strategies is the research library (Library Research). This study uses socio-legal rules governing studie.Technic data collection to secondary data obtained through library research and a legal document. The primary legal materials, consisting of Article 55 of Law No. 21/2008 and explanation, Article 39 of Law No. 30 /1999, Law No. 4/1996, Law No. 50/2009 Constitutional Court Decision No. 93/ PUU-X / 2012. Secondary law, consists of book-nail on the agreement (contract), Islamic banking, political law, legal theory, legal research methodology, journals. The primary data obtained as supporting data through research in the field (Field Research) with observations interviews which includes: 1) Law sanction institution: Judges Religion, Arbiter in Basyarnas, Staff Bagia Legal in Islamic Bank, Mediator in Bank Indonesia, Notary; 2) Role Occupant: Management Islamic Bank, Islamic Bank Customers, which is done by hermeneutics, sociology of law and phenomenology. Analisys data using qualitative descriptive analysis that describes the development of dispute resolution institutions guarantee security interest in Islamic banking practices after the Constitutional Court Decision 93/ PUU-X/2012. The Results from this study is the reconstruction of dispute resolution institutions of financing agreement with hak tanggungan guarantee interest in Islamic banking practices following the Ruling of the Constitutional Court Number 93/ PUU X / 2012 is resolving disputes financing agreement with mortgage guarantee through Parate Executie more effectively and efficiently in other words more beneficial for of the parties when compared to the settlement of disputes trough the assurance executorial title. However, for the preventive protection during the pre-contractual agreement prepared sharia Islamic banks needfully the deed of acknowledgement of financing manufacture (APP) agreed debtor. The parties are no longer glued to that in resolving disputes and guarantee rights dependents through judicial institutions and non litigation in the narrow sense, namely non litigation on consultation, banking mediation, arbitration through the National Sharia Board of Arbitration or other arbitration institution, but can also cover non-litigation processes such as consultation, negotiation (negotiation), conciliation, non judge mediation, expert opinion or assessment.

Jurisdictional basics governing the commercial arbitration in Iran

With the birth and growth of the arbitration phenomena in recent decades, establishment of Court of Arbitration in the form of International Commercial Arbitration Law, international treaties and domestic independent and particular laws by countries, the increasing tendency of traders and businesses to resolve problems through this body gradually leads to excellence of the position of this body and typically coercion and obligation of officials and supporters of this entity to modify or supplement the former rules or ratify new and progressive legislation with broader discretionary limits for arbitrators, so that the establishment and ratification of regulations in form of conventions with membership of many countries has been the result of meeting will of politicians with fortune and tendency of businessmen, merchants and etc. If there is alleged invalidity of the contract, Limits and scope of arbitration referee. This issue calls “competence-competence” principle and we seek to investigate whether the possibility of accepting the competence to judge. It means making decision about competence of referee. Competency of arbitration board is inherent and it is created by law and it is separate from competency of public arbitration. Arbitration ritual theory is differences as a separate method of dispute resolution in international commercial transactions. However, Consistent with the dominance of the national authority on private equity, the entity is located at the foot of the rights of nature into the public law; although, private perspective is dominance.

Penyelesaian Sengketa antara Bank Sharî‘ah dengan Nasabah Bermasalah melalui Badan Arbitrase Sharî‘ah Nasional (BASYARNAS) menurut UU No. 30 tahun 1999

<p>This study deals with dispute settlement between <em>Bank Syari’ah</em> and its customers through the National Shari’ah Arbitration Board (BASYARNAS). It focuses to elaborate the procedures of dispute settlement between <em>Bank Syari’ah</em> and its customers of financing from the perspective of Islamic law according to Bill No. 30/1999 above law No. 30 year 1999. Based on procedures as mentioned in the bill with regard to arbitration and alternative dispute resolution, Basyarnas, in proofing and resolving cases, has fulfilled the procedures and satisfied the conflicting parties with justice, so there is no need to appeal and reconsideration. This means that Basyarnas has conducted dispute resolution according to the existing procedures. The dispute settlement has also been in accordance with the Qur’ân and other Islamic legal rules which consist of the principles of power and mandate applied by the arbitrator in deciding and resolving the dispute. The board—as an independent institution—has setttled the disputes on the basis of justice for all parties, rejected the act of bribery since the cost is measurable. In addition, Basyarnas also gives strong emphasis on the principle of equality, friendship, consistence and response-bility in resolving disputes.</p>

Penyelesaian Sengketa Perbankan Syariah di Indonesia

This article discussed the settlement of disputes that occur within the Islamic economic institutions (LES). Before being taken to the court, the case of the dispute between the customer and Islamic banking can be solved by consensus or reconciliation (ishlah). Other choice is arbitration Indonesia through sharia arbitration institution called as BASYARNAS (National Arbitration Board). This is what made the different between conventional banking and Islamic economic institution in Indonesia. In Indonesia, there is now also a new provision regarding the institution of the Religious Courts. Although it not optimal implementation, It serves adjudicate disputes that occur between the customer and Islamic banks.DOI: 10.15408/ajis.v15i2.2867

Status of domestic and international commercial arbitral jurisdiction in Iran which is Originated from English Law

Abstract. If there is alleged invalidity of the contract, Limits and scope of arbitration referee. This issue calls “competence-competence” principle and we seek to investigate whether the possibility of accepting the competence to judge. It means making decision about competence of referee. Competency of arbitration board is inherent and it is created by law and it is separate from competency of public arbitration. Arbitration ritual theory is differences as a separate method of dispute resolution in international commercial transactions. However, Consistent with the dominance of the national authority on private equity, the entity is located at the foot of the rights of nature into the public law; although, private perspective is dominance .

The Recognition and Enforcement of the Foreign Arbitral Awards ‘with No Foreign Element’ in China

It is a hot topic in China in recent years among arbitration scholars and practitioners whether Chinese parties may submit their disputes with no foreign element to a foreign arbitral institution. The ruling made by the No. 2 Intermediate People's Court of Beijing on 20 January 2014 refusing the recognition and enforcement of an arbitration award made by the Korean Commercial Arbitration Board raised public concern over the issue again. This is the first arbitration award made by the Korean Commercial Arbitration Board denied recognition and enforcement in China and also the first foreign arbitration award denied recognition and enforcement in China on the basis of the fact that the Chinese parties submitted their dispute with no foreign element to a foreign arbitral institution, which will have significant implications for arbitration development in China.

A Review on the Arbitral Proceeding under Rules of Arbitral Procedure of the Indonesia National Board of Arbitration (BANI)

A Review on the Arbitral Proceeding under Rules of Arbitral Procedure of the Indonesia National Board of Arbitration (BANI)

Damages — Power of board to award

By a majority, the board in this case holds, first, that the question of whether a board of arbitration may or may not award damages is not one going to jurisdiction, but is a matter of the powers of a board once it is properly seised of the dispute under the collective agreement or under the relevant legislation. On the question of the power to award damages, it holds that this does not depend on the inclusion of a specific provision in the agreement. The object of the voluntary submission by the parties to arbitration of their disputes is that there shall be a final and binding settlement of the disputes, and a board of arbitration has an inherent power to award damages where any compensable loss is suffered by either party. By submitting to the board's adjudication the parties must be presumed to have intended to submit to a complete adjudication of the matter and a proper redress of any wrong suffered as a result of a breach by either party of its obligations under the agreement. Polymer Corporation Ltd and Oil, Chemical and Atomic Workers International Union Local 16 - 14 - Arbitration award, Nov. 10th 1959, Bora Laskin, Q.C., C.L. Dubin, Q.C., M. O'Brien.

Damages awarded by Arbitration Board — Application for certiorari to quash award — Wether board has power to award and assess damages

The union had the capacity to incur liability for damages and the Board of Arbitrators were within their powers in proceeding to assess and award damages. The arbitrators had the same jurisdiction with respect to damages as they had to hear and dispose of the grievance which had arisen from a breach of the agreement. Moreover, since the union had the legal capacity to enter into a collective agreement, it was fastened with the responsibility that arose from a breach thereof and, therefore, it had the capacity to incur liability for damages. In the matter of an arbitration between Polymer Corporation Ltd. and Oil Chemical and Atomic Workers International Union, Local 16-14 Ontario High Court of Justice, January 23, 1961; McRuer, C J.H.C.

Seniority — Nature and scope of discretion for a company in applying a seniority clause — Power of the board to find against the company

A Company has no absolute right of discretion when applying a seniority clause containing objective criteria for its application in case of short-term lay-offs, otherwise the seniority rights of the employees could be obliterated by Company action. The arbitration board must satisfy itself that the company's administrative act was taken with full appreciation of the right for senior employees to be retained on short-term layoffs provided in the Company's reasonable judgment exerciced with care and in good faith, it is practical to retain them Canadian Industries Ltd. and Le Syndicat des Travailleurs de Produits Chimiques de McMasterville; H.D. Woods, Chairman, Me Raymond Caron, Company's nominee, Me Marc Lapointe, Union's nominee.

Badan Arbitrase Syari�ah Nasional (Basyarnas) Menyelesaikan Sengketa Secara Adil dan Cepat

This study aims to determine the definition, history, legal basis of the National Syari'ah Arbitration Board and the National Syari'ah National Arbitration Board can resolve disputes fairly and quickly; Research methods; the method used is the Normative juridical method considering that this study emphasizes on data scundir namely by studying and reviewing the principles, materials and rules of the positive law which are from the literature in the legislation, data in the study collected through Observation.The results of this study, the settlement through Arbitration is believed to have advantages compared to court lines, but the settlement through Arbitration also still has weaknesses.

Religious Authority and Constitutional Order: A case study of the Conciliation and Arbitration Boards (CABs) of the Shia Imami Ismaili Community

This paper discusses the interpretation of the Constitution of the Shia Imami Ismailis via the constitutionally established institutions of the Conciliation and Arbitration Boards (CABs). It views the Constitution as a variety of non-scriptural “religious text” and discusses the social and historical context of the community, the Constitution and the CABs. The paper argues that the structure and operation of the CABs are designed to balance diverse local and contextual factors within the tradition and doctrine of singular Imamat authority and that, in so doing, the interpretational system of the CABs demonstrates how religious texts may be understood in ways that accommodate plurality and community engagement while still preserving hierarchy and authority.

Fehler bei der Behandlung diaphysärer Frakturen der langen Röhrenknochen bei Kindern – Erfahrungen der norddeutschen Schlichtungsstelle

Statistics of the Arbitration Office of the North German Medical Boards for extrajudicial claim resolution show that nearly 30 % of all panel proceedings confirm medical malpractice. In proceedings concerning fractures in children the percentage rises to 63 % with significant differences in various fracture localisations. Between 2000 and 2011 the Arbitration Office dealt with 272 panel proceedings regarding the fracture treatment in children. In this study 83 proceedings concerning the treatment of diaphyseal fractures of the long bones are evaluated. The claims were related to the following specialities (p = number of proceedings, m = number of malpractices): orthopaedics/traumatology p = 46, m = 38; general surgery p = 17, m = 21; paediatric surgery p = 16, m = 13; anaesthesia p = 1, m = 1; general practitioner p = 2, m = 2. In 7 cases concerning obstetrics (4) and paediatrics (3) no malpractices could be established. In 5 cases two facilities/doctors were included in the same proceeding. On 17 occasions, 2 errors were made that were unrelated to each other. The overall frequency of malpractice was 69 % with no significant differences between the involved facilities. The diaphyseal fracture locations were: humerus p = 5, m = 2; radius and/or ulna (Monteggia fractures excluded): p = 29, m = 20; femur p = 29, m = 20; tibia (with or without fracture of the fibula): p = 20, m = 14. In conservative fracture treatment the following negligent adverse events were confirmed: severe skin lesions owing to either plaster extension or removal of the cast (11), omitted or insufficient reduction followed by consolidation in intolerable malposition (8), no inducement of corrective measures after consolidation in intolerable displacement (11). Following malpractices in the surgical treatment were classified as: no indication for surgical treatment (2), no osteosynthesis in spite of clear indication (3), technical failures in primary osteosynthesis (16), technical failures in repeated osteosynthesis (4), aspiration pneumonia due to missed intubation (1). The applied methods of osteosynthesis were intramedullary nailing, mainly ESIN p = 24, m = 12; plate p = 24, m = 5; fixateur externe p = 7, m = 5. The results of maltreated diaphyseal fractures were altogether moderate: transitional impairment due to delayed or repeated therapeutic measures with prolonged fracture healing, no functional loss 70 %, slight deformation of the forearm, minimal loss of mobility 21 %, remarkable deformation of the forearm with considerable impairment of mobility, especially pronation/supination, deformation of the radio-ulno-carpal joint unit 7 %. There are three main categories in the maltreatment of diaphyseal fractures: 1) Omission of fracture reduction with or without internal stabilisation in cases of relevant axial deviation by unjustified expectation of "spontaneous correction". 2) Omission of fracture reduction in cases of unmotivated or neglected secondary displacement. 3) Technical failures in performing of osteosynthesis resulting in instability or the creation of intolerable malposition requiring re-osteosynthesis. The high number of plate osteosyntheses in our series (44 %) is not representative for the general treatment of children's fractures in Germany. Most cases of plate osteosynthesis are related to corrective measures with clear indication. In nine casuistic representations the errors in treatment are explained. The evaluation of malpractice in the treatment of diaphyseal fractures in children confirms the consensus: correct assessment of fracture type, early adequate treatment and fracture control, early corrective measures after insufficient primary reduction or secondary dislocation, lead to fracture healing without any anatomic or functional deficiency. Reverse argument: fracture healing leading to anatomic and/or functional loss gives a very probable indication of malpractice.

Infektion nach arthroskopischer Kreuzbandersatzplastik: schwerer Behandlungsfehler?

A 28-year-old patient showed clear signs of knee joint infection 8 days after arthroscopic reconstruction of the anterior cruciate ligament. The treating physicians recommended further observation although they stated that a knee joint infection could not be reliably excluded. One week later arthroscopic revision was performed and intraoperative smear tests showed infection by Pseudomonas aeruginosa. Therefore, another 6 days later the obviously infected transplant had to be removed. In the long run painful and limited range of motion of the affected knee joint persisted. The patient complained about medical malpractice concerning management of the complication. The expert opinion stated that due to the fateful course of infection the tendon graft could not be retrieved after the eighth day post surgery anyway. Thus, only flawed delay of treatment was criticized. The arbitration board argued, however, that scientific data concerning the fate of infected tendon grafts do not support the expert opinion and that immediate arthroscopy and antibiotic treatment at least had the potential to influence the course of infection in a positive manner. Evidence clearly shows that survival of an infected tendon graft depends on early diagnosis and emergency treatment rather than just on fate. Due to the fact that, although having in mind the possibility of a knee joint infection, the necessary therapy was delayed for 8 days, the arbitration board considered the described medical malpractice a severe treatment error, leading to reversal of evidence in favour of the patient.

Spätinfektion nach Osteosynthese am oberen Sprunggelenk

A 63-year-old patient suffering from diabetes mellitus and arterial occlusive disease sustained a displaced fracture of the upper ankle joint. The fracture was treated by open reduction and internal fixation (ORIF) but 6 months later a delayed infection developed. Partial implant removal and a single lavage were performed. With persistent signs of infection full implant removal and subsequently debridement and lavage were carried out 3.5 months later followed by arthrodesis of the upper ankle joint. The arbitration board decided that the treatment applied after diagnosing the delayed infection was not sufficient which led to a delay in appropriate treatment. However, whether the arthrodesis of the upper ankle joint could have been prevented could not be proven.

Qualität anästhesiologischer Gutachten bei medizinischen Schadensfällen

Expert opinions have an important place for expert testimony in medical disputes. The report should contain a summary about facts and causality between the damage and the medical treatment in question as well as describe the current medical standard. The fulfillment of scientific criteria was investigated in 179 anesthesiological expert opinions from 150 arbitration cases. Anesthesiological expert reports (2005-2007) of the Arbitration Board of the North German Medical Associations were analyzed in terms of structure, general form of assessment and scientific substantiation of statements. Patient damage was confirmed in 76%, treatment failure in 29% and negligent malpractice in 17% of the reports. In 78% of the reports the facts were presented correctly and in 64% the question was answered whether the incident would have occurred even during adequate and professional action. Conclusive statements about the causality between the damage and the medical treatment in question were available only in 60% of the reports. The study findings suggest that anesthesia expert reports present a high incidence of non-scientific claims. The development of guidelines for expert witnesses by the medical societies is urgently recommended.

Behandlungsfehler bei Armfakturen im Kindesalter

Analysis of complaints concerning 173 cases of fractures and luxations of the upper extremity in children brought before the arbitration board of the North German Medical Associations revealed that these types of injuries carry a high potential for possible errors in treatment. In 110 of these children (63.6%) medical malpractice was confirmed. The elbow region in growing children is particularly susceptible to injury and errors in treatment occur frequently. In the opinion of the arbitration board especially dislocations that had been overlooked in conjunction with Monteggia lesions and incorrectly assessed transcondylar humerus fractures were adjudged as instances of malpractice. The reasons for the medical mistakes observed were inadequate knowledge and experience with the characteristics of injuries to the growing skeleton. Management of such injuries in children should only be entrusted to physicians versed in the special features of this patient group.

A Study on the Recent Amendment to the Arbitration Rulesof the Korean Commercial Arbitration Board

A Study on the Recent Amendment to the Arbitration Rulesof the Korean Commercial Arbitration Board

Schlichtungsverfahren bei Kindern mit Frakturen und Luxationen des Ellenbogengelenks – Erfahrungen der norddeutschen Schlichtungsstelle

Statistics of the arbitration office of the North German Medical Boards show that 30% of all panel proceedings confirm medical malpractices. In panel proceedings concerning the treatment of fractures in children, the percentage rose to 60% with significant differences in the individual fracture localisations. Between the years 2000 and 2010, the arbitration office dealt with 257 panel proceedings regarding the fracture treatment of children. This study evaluates the decisions of 53 proceedings concerning the treatment of fractures and dislocations of the elbow joint. All cases except one concerned the following surgical specialities: 1. orthopaedics/traumatology, n = 14; 2. general surgery, n = 13; 3. paediatric surgery, n = 5. On 7 occasions 2 treatment facilities were involved in the same proceeding. The following types of fractures/dislocations were present (each with the number of proceedings [p] and the confirmed malpractices [m]): fracture of the radial humeral condyle and transcondylar Y-fractures, p = 12, m = 11; fracture of the ulnar epicondyle, p = 2, m = 2; sole dislocation of the radial head as well as in combination with Monteggia lesion, p = 19, m = 17; displaced fracture of the radial head and radial neck, respectively, p = 8, m = 4; fractures of the olecranon, p = 3, m = 2; fracture of the coronoid processus, p = 1, m = 1; dislocations and dislocation fractures of the elbow joint without Monteggia lesion, p = 8, m = 5. 42 of these cases (79 %) confirmed malpractice of which 27 (64%) resulted in permanent restriction of the elbow joint mobility. Due to the diversity of injuries, the types of treatment errors were also very variable. In most cases the treatment errors were initiated through the false interpretation of X-ray findings which resulted in false and inadequate therapy measures, for example, the overlooked and not reduced dislocation of the radial head. Three transcondylar Y-fractures were missed on both the X-ray findings and during the operation. In cases where the dislocation of the radial head was not diagnosed in the first instance but operated on within four months (n = 3), a satisfactory result was still achieved. However, if the operation took place at a later time (in our cases 9 months to 8 years after the injury, n = 14) there was no improvement achieved and in many cases the elbow joint mobility deteriorated significantly. In three cases of dislocation of the elbow joint, an intraarticular entrapment of the disjointed ulnar epicondyle was overlooked and therefore not corrected which resulted in deleterious effects on the joint movement. There were five cases with a dislocation combined with a displaced fracture of the radial neck (Mason IV). This fracture was insufficiently reduced/stabilised on two occasions and in one instance the reconstruction of the disrupted joint ligaments was not carried out which resulted in permanent instability of the elbow joint and subluxation. In five casuistic representations the final decision of the arbitration board on the basis of expert reports is illustrated. From a traumatological point of view, the elbow region of a child constitutes a distinct problem zone due to the rarity and diversity of the fractures and dislocations in this area. Relevant experiences in diagnostics and therapy of injuries in this region cannot always be expected. Every doctor who happens to come across a case in which a child suffers from such injuries should be responsible for the timely referral to a treatment facility that has the relevant experience to treat such cases.

The Revised Rules of International Arbitration of the Korean Commercial Arbitration Board

The Revised Rules of International Arbitration of the Korean Commercial Arbitration Board