Categories Of Disputes Research Articles

Fishing Disputes in the Context of International Maritime Disputes

The relevance of the article is determined by a variety of international disputes in the field of fisheries, which is the main way of extracting food products from the oceans. The article contains the definition of international fishing disputes as a form of international Maritime disputes arising in the extraction of living marine resources and in the management of living resources of the oceans. Special attention is paid to the categories of international fishing disputes that are allocated basing on the analysis of court practice of the International Tribunal for the Law of the Sea and the Permanent Court of Arbitration in fishing disputes. The classification of international fishing disputes allows international judicial bodies to systematize the knowledge concerning the data categories of disputes in question and to apply the knowledge in their jurisprudence.

Interpretation and Application of Article 298 of the Law of the Sea Convention in Recent Annex VII Arbitrations: An Appraisal

ABSTRACTArticle 298 of the UN Convention on the Law of the Sea allows state parties to exclude certain categories of disputes from the compulsory procedures entailing binding decisions. This provision serves as a “safety valve” by excluding sensitive issues mainly related to sovereignty. This article examines the three recent Annex VII Arbitral Awards (the South China Sea Arbitration; the Arctic Sunrise Arbitration; and the Chagos Marine Protected Area Arbitration) that assessed the interpretation and application of Article 298.

PEACEFUL MEANS FOR SETTLEMENT OF INTER-STATE DISPUTES: REFLECTIONS, ADVANTAGES AND DISADVANTAGES

Disputes, tensions and conflicts are present in all spheres of human society, either at the national, regional, or international level. Therefore, international law requires peaceful methods for dispute settlement and somehow it becomes an imperative in international relations. From a legal point of view, the dispute settlement in international law creates an obligation for states to settle their disputes in accordance with the international law by using the peaceful means and mechanisms. They can choose between diplomatic, judicial and institutional means. Such means include legally binding and non-binding mechanisms: negotiation, good offices and conciliation (as diplomatic means and non-binding third party facilitation); intervention of an international or regional organization and its bodies or representatives (as an institutional mechanism), and legally-binding mechanisms such as arbitration and international adjudication (as judicial means). Although there is a specific obligation for the states to settle their disputes through peaceful means, they are also free to choose the most suitable peaceful mechanism for their dispute. The distinction between the diplomatic and judicial means is related to the difference between two categories of disputes: legal and political. The legal disputes are more related to judicial means of settlement, within the international law. Political disputes use diplomatic channels and political principles instead of international law in order to settle disputes. The diplomatic means are characterized by the lack of binding effect to any conclusion and taking into account all relevant circumstances. By their nature they are less ambiguous compared to judicial means. Arbitration as judicial mean is optional, more flexible and adapted to the objectives of the states. Its conclusions have binding effect. The International Court of Justice and its proceedings are also binding, more rigid, less flexible and take only legal aspects as relevant. States are not always willing to make conciliation in terms of dispute settlement, mostly due to national interests and sovereignty. When states need to choose among these various means, they have to take into consideration their mutual relations and the nature of their dispute. Nowadays, inter-states disputes are real problems in maintaining stability and promoting peaceful relations between states. Consequently, the aim of this paper is to identify the peaceful means and delicate techniques known in the international law and to distinguish their advantages and disadvantages and how states can apply them in order to reach an acceptable and reasonable solution and reduce the risk of new disputes and conflicts between them in future.

The Philippine Claim Against China

China was excluded by its Declaration of 2006 from application of unclos compulsory procedures in “all categories of disputes referred to in paragraph 1(a), (b), and (c) of Article 298,” notably “any dispute that necessarily involves the concurrent consideration of any unsettled dispute concerning sovereignty or other rights over continental or insular land territory.” The implications of sovereignty over land territory considered in relation to maritime rights make it extremely difficult to make distinctions isolating the latter from the parent concept of “sovereignty.” The Tribunal, when assuming jurisdiction over the Philippine claim made an admirable effort to do so, and the reader may evaluate its success. China, on the other hand, did not merely “fail to appear” or “fail to present its case,” but chose instead to rely on its exclusionary Declaration of 2006 in publicly denying the competence of an Annex vii Tribunal to assume jurisdiction. Nor was China invited to withdraw its 2006 Declaration or to enter into a special agreement to submit a dispute excluded by its Declaration, as contemplated by paragraph 2 of Article 298. In the author’s view, China’s Declaration of 2006 deprived the Convention’s procedures of the essential element of a State’s consent to jurisdiction.

Assessment of Construction Dispute Resolution in Ethiopian Somali Regional State Road Projects: A Case Study on Road Projects in the Region

The construction industry has been a paradoxical leader in both dispute occurrences and dispute resolution systems for many years. This study assessed the construction dispute resolution mechanism in Ethiopian Somali Region Road Construction Industry. It has identified the causes that lead to construction dispute in the road sector; determined the most frequent causes of the dispute; and analyzed its current dispute resolution mechanisms. Results show to have five major categories of disputes which are design-related, contractor-related, owner related, contract-related, and external factors ranked from first to fifth, respectively. The Dispute Resolution Mechanisms currently used in the road construction industry of the Ethiopian Somali region are an Amicable Settlement (Negotiation), DRE, Arbitration (Litigation), and “others” not disclosed by respondents. ADR is to a certain extent, effectively used in contracts in the construction industry. Negotiation is initially most frequently used in resolving disputes in road construction projects in Somali Region. However, parties cannot resolve the issue through Negotiation thereby resorted to Arbitration (Litigation). Arbitration is the final stage of dispute management in the road construction sector and arbitration proceedings resemble to regular court litigation. Various but specific recommendations were forwarded to major construction stakeholders to minimize or avoid disputes. Such as disputes can be reduced by checking that the contract documents are in place. Avoid making general statements, and instead set out a complete list of specifications, drawings, questions and answers, and others that apply to the project.

Arbitrability of Disputes Related to the Privatization of State-Owned Property in Ukraine

The article is devoted to the analysis of arbitrability of disputes between a privatization body and purchaser arising out of a sale and purchase agreement of a privatization object or relating thereto. Author reached a conclusion that before the Law of Ukraine on Enactment of Some Laws of Ukraine Aimed at the Improvement of Privatization Process dated 16 February 2016 No. 1005-VIII entered into force disputes in relation to alienation to privatization objects could have been referred to international commercial arbitration. Based on the analysis of court practice in relation to sale and purchase agreements which contained arbitration clauses, author reached a conclusion thatsome of the arguments against arbitrability of this category of disputes did not lose their relevance even after the said law entered into force.

Brain death: legal obligations and the courts.

Brain death, or death determined by neurologic criteria, has been legally adopted in all U.S. states for decades. Despite its long-established history, a lack of clear understanding has led to disputes requiring a legal forum for resolution. Recently, physicians and hospitals across the country have been impacted by a growing number of disputes about brain death. The authors offer clinicians a historical perspective on the evolution of brain death as a legal cause of death in the United States. They then review the more common legal categories of disputes encountered, including representative court cases for each. This overview provides physicians with a general legal perspective on brain death so they may better appreciate the pertinent issues if and when later confronted.

Cycles of Creativity. The story of one Mediation program

This essay summarizes reflections offered at the 2014 Edward Kennedy Institute Mediation Conference. Using as an example her community mediation program in Philadelphia, the author outlines the how the cycle of creativity affected the program (and the wider community mediation field) over time—starting with identifying a problem, then experimenting with exciting ideas, improvising, then formalizing, sustaining, and institutionalizing. The author observes that both creativity and formalizing are essential, yet are necessarily in tension. After offering several ways mediators and programs can encourage creativity through co-mediation, mentoring, interacting with other fields, and risking improvisation, the essay concludes that the excitement of creative energy can propel a program and its offshoots for a long time afterward. However creativity is ephemeral and at its heart, mediation is less about fostering creative approaches than about helping parties “be real.” For the next creative cycle, mediators need to be “real” about the causes of community conflicts, and co-create pathways to conflict resolution that people in those communities find effective. The 2014 Edward Kennedy Institute Conference theme of “Creative responses to conflict” prompted me to look again at my youthful experiences in an early community mediation program, with attention to the role of creativity — how it emerges, improvises, formalizes, finds ways to sustain and institutionalize, and appears again. The story may tell us more about the role of creativity in the formation of a new profession than it reveals about creativity in mediation and conflict resolution per se, so I visit that latter question briefly at the end. For our purposes in this essay, “creativity” refers to the process of inventing a significant, original approach to something. Ideally the creators also have the craft skill to bring their idea into the real world. When a big-scale creative idea comes along at a receptive time, it can generate many offspring. The movement to apply “mediation” to whole new categories of disputes was one of those moments. There are several commonly noted characteristics of how creativity unfolds that I will list briefly, then look at how they played out in a community mediation context: • Although we tend to think of creativity as an intuitive and sudden insight—that Eureka! moment—durable ideas are most likely to emerge from sustained practice and study and experimentation. • Within that field of knowledge, focusing on a limited problem, a puzzle, an idea, a specific situation also helps concentrate the creator’s attention. • Creativity often bubbles up at the margins and intersections, when someone deeply familiar with one area encounters practices and knowledge from an • Two other factors encourage creativity. • One is a loose, playful approach, as it helps loosen the mind from habit and judgmental voices. • The other is collaborating and/or competing with other people, either of which can increase social motivation to create something or solve a problem. Teamwork also has the advantage of pulling and together a greater mix of knowledge and therefore the chance of productive cross-fertilization and more careful selection of winning ideas.

The Evolution of International Investment Law and Its Application to the Energy Sector

Foreign investors in the energy sector have long sought to secure guarantees from the host state in order to reduce future risk. The international investment law regime has fundamentally altered the legal framework for investors and host states within the energy sector. This article explores the application of international investment law within the energy sector, describes some common categories of disputes that characterize the energy sector, identifies the main disciplines or standards in investment law, and discusses the remedies available to investors.

Mandatory Mediation: Opportunities and Challenges

This article analyses one of the variations of classic mediation,64 which is mandatory mediation. In foreign countries mandatory mediation is often used as a tool to encourage the use of mediation and to popularize this method of alternative civil dispute resolution. Started in 2005, mediation faces difficulties in Lithuania. Thus, making mediation mandatory at least in certain categories of disputes could give new impetus to the development of mediation in Lithuania. Therefore, the article deals with the concept of mandatory mediation, analyses experience of foreign countries in the field of mandatory mediation, deals with practical problems while implementing mandatory mediation and presents a review of arguments for and against mandatory mediation. On the basis of a study performed, the author of the article submits proposals for the introduction of mandatory mediation in the Lithuanian legal system. In this article mandatory mediation is defined as a form of mediation where the parties are directed to use mediation by judge or by law. Mandatory mediation can also be imposed on the parties by procedural and economic sanctions against parties for the unjustified refusal to use mediation. In all cases, the main condition for the application of mandatory mediation is the right of the parties to the dispute to go to court. Under this condition, mandatory mediation for its expected social and economic benefits is not considered to be an obstacle to access justice. The practice of foreign countries that implemented mandatory mediation shows that drastic imposition of mandatory mediation naturally induces rejection. Thus, consistent, systematic, based on the results of the interim analysis of the gradual introduction of mandatory mediation, starting with certain categories of disputes particularly susceptible to the effects of mediation is necessary. The author of the article proposes to promote mediation in Lithuania by introducing mandatory mediation for at least certain categories of disputes. The introduction of mandatory mediation in Lithuania could be started from the family disputes including interests of children. At a later stage it is possible to decide on the feasibility of application of the mandatory mediation for other categories of disputes, as well (e.g., labour, small sum property disputes, disputes between relatives and neighbours, etc.). In order to encourage not only the parties to use mediation, but also judges to direct parties to mediation, it would be appropriate to introduce mandatory mediation by the law (the Civil Procedure Code of the Republic of Lithuania) that would have an exemption provision to allow a party to petition the court for good cause to be exempt from the referral to mediation.

Is There a Flight from Arbitration?

Reports of dissatisfaction with arbitration are increasingly frequent. A recent article by Eisenberg and Miller suggests that businesses are fleeing arbitration, while [a]necdotal evidence suggests that franchisors are either abandoning arbitration altogether or using more 'carve-out' provisions (exempting specific categories of disputes from the franchise agreement arbitration clause). This paper examines whether the use of arbitration clauses has changed over time - in other words, whether there has been a flight from arbitration. It compares the use of arbitration clauses in franchise agreements from the same franchisors in 1999 and 2007 to see how, if at all, the clauses have changed. We find little evidence of a flight from arbitration by franchisors, at least in the aggregate. The percentage of franchisors using arbitration clauses is almost identical in 2007 as in 1999, although some franchisors have stopped using arbitration while others have started. Likewise, there is little indication that franchisees are fleeing arbitration by avoiding franchisors that use arbitration clauses. As for other terms in arbitration clauses, the most notable change has been the substantial increase in class arbitration waivers (from 50% to over 80% of clauses). With some exceptions, few terms seem to have been modified in response to the risk of court invalidation. Instead, other common changes appear to be designed to hold down costs, such as providing for a sole arbitrator instead of a panel of three arbitrators.

Private Dispute Resolution in the Card Context: Structure, Reputation, and Incentives

Explosive growth in credit, debit, and other card payment systems in recent years has produced a parallel growth in private dispute resolution systems based on the web of contracts entered into by merchants, merchant acquirers, consumers, card issuers, card associations, and transaction processors. These contracts have produced a legal system based on contract and whose enforcement rests primarily on reputational constraints. To cost-effectively resolve disputes, these private legal systems have evolved innovative procedures, including incentive-payments for producing information, rigid deadlines for parties' actions, and the use of the lowest-possible level resources to resolve disputes. This paper describes and analyzes these legal systems and their procedures as a potential model for resolving other categories of disputes.

Expedited Arbitration Rules: Stockholm and WIPO

COMMERCIAL DISPUTES are frequently resolved by arbitration, which is intended to provide a quicker and cheaper way of settling disputes than resorting to litigation. Substantial effort has been devoted to the creation of satisfactory systems of arbitration. Nevertheless, in recent years arbitral proceedings have been criticized for becoming bogged down in costly and time-consuming court-like procedures. In the light of such reactions, new dispute resolution procedures have been attempted. On 1 July 1995, the Arbitration Institute of the Stockholm Chamber of Commerce (SCC) introduced rules providing for a simplified form of arbitral proceedings (‘SCC Expedited Rules’). The purpose of the new SCC regime is to provide an inexpensive and more expeditious means of conflict resolution.1 The World Intellectual Property Organization (WIPO) Arbitration Centre (‘the WIPO Centre’), located in Geneva, administers a number of procedures for the resolution of international commercial disputes, the subject matter of which is intellectual property. On 1 October 1994 the WIPO Arbitration Centre adopted rules (‘WIPO Expedited Rules’) whose objectives are the same as those of the SCC Expedited Rules. Both regimes (together referred to as ‘the Expedited Rules’) are offered as an alternative to the standard arbitration rules of the SCC and the WIPO. Most disputes are submitted for arbitration pursuant to an arbitration clause contained in a contract. The parties concerned would then choose the set of rules they wished to apply by a provision in their contract stating that all or some categories of disputes should be subject to the Expedited Rules; the parties may, of course, agree to submit their dispute to arbitration in accordance with the Expedited Rules once a dispute has arisen. It is worth emphasizing that for the application of either set of Expedited Rules there is no threshold in respect of the sum in dispute. In the …

What Law Governs the Issue of Arbitrability?

ALTHOUGH JUDICIAL power is an essential prerogative of states, the parties may, if they express the wish to do so, give jurisdiction to arbitrators to settle their disputes. But on the other hand, the state retains the power to prohibit settlement of certain categories of disputes outside its courts. It is then claimed that the dispute is not arbitrable: if an arbitration agreement is entered into, it will not be valid. Arbitrability1 is indeed a condition of validity of the arbitration agreement and consequently, of the arbitrators' jurisdiction. The issue of objective arbitrability may arise at various points in the procedure. At each stage, the question arises: What law governs the issue of arbitrability? Let us take a few examples. A French company and an Italian company enter into a trademark licence agreement. A dispute arises which involves the validity of the trademark and arbitrators are appointed. The arbitral...

Can There Be a Principle of Explanation in Common Law Decisions? A Comment on Priest

GEORGE Priest has written an interesting and thought-provoking essay that promises to stimulate a new area of research within the economic analysis of the common law process.' The important question he addresses is whether appellate court decisions are the residual category of disputes that cannot be easily resolved by existing legal precedent. If the answer is yes, then those decisions cannot be explained or rationalized on the basis of an unambiguous legal principle. Priest's analysis is most easily seen in terms of his equation (2). When there is no disagreement with respect to the stakes (J) in a given dispute, it is more likely to be resolved in court the greater the (algebraic) difference between the probability that the plaintiff assigns to a win and the probability that the defendant assigns to a plaintiff-win. This difference, Priest claims, varies positively with the court's difficulty in deciding the case. In hard there are good precedents on both sides and hence predictions of the outcome are unreliable. In particular, if courts decided to apply the efficiency standard they might find it difficult to do so in some circumstances (e.g., when information about relative costs is poor) and hence, in these situations, they would make many errors. Since cases litigated at the appellate level are often of this kind,2 the efficiency standard or any other single principle will not be useful in explaining the decisions. These decisions cannot be viewed as achieving any specific goal because of the court's high error propensity. Priest's argument can be usefully restated in terms of three propositions. (1) Most, or at least very many, decisions arise out of disputes in which the litigants have divergent estimates of the probability of the outcome. (2) These divergent estimates reflect the underlying difficulty of deciding in accordance with a single principle. (3) A high error propensity on the part of

Problems on determining the jurisdiction of claims when appealing against state authorities and local self-government decisions in the land disputes field: genesis, features and notion

The issues of jurisdiction in disputes over appeals against decisions of state authorities and local self-government is one of the reasons for the ineffective implementation of these constitutional norms. The ascertainment of the issue of jurisdiction in a case in this category may be considered by courts of all three tiers and result in the closure of the proceedings in the case. Given that the issue of subject-matter jurisdiction in appealing against decisions of state authorities and local self-government in the field of land relations is poorly researched as a separate category of disputes, this article covers this issue.
 The author identifies three key stages in the formation and development of this group of disputes, which influenced the procedure for determining the subject-matter jurisdiction of disputes over appealing against decisions of state authorities and local self-government in the field of land relations. The first stage is the period of the formation of procedural legislation, allowing to appeal against the decisions and inaction of state authorities. The second stage is the stage of active formation of the practice of litigation over the choice of jurisdiction when appealing against decisions of state authorities and local self-government in the field of land relations. The third stage is the stage of deepening the law enforcement practice of litigation concerning the choice of jurisdiction when appealing against decisions of state authorities and local self-government in the field of land relations.
 The conducted research suggests that each of these stages has its own features, characterizing this group of disputes as a separate category of disputes has the following features:
 
 is formed from a derivative object related to the protection of the subjective land right or the realization of land legal personality;
 is always subject to judicial consideration within the stated claims, related to the protection of the subjective land right or the realization of land legal personality;
 creates independent legal consequences in the form of admission of the case to be considered in substance or revision of the made court decision or court decisions in the case, cancellation of the made court decision or court decisions in the case, and the closure of the proceedings in the case;
 has general and specific rules of application. General rules of application are stipulated by the requirements of the current procedural legislation, and specific rules have been formed by the case law in the judicial review of land disputes;
 the cases of this group at the stage of cassation are considered by the Grand Chamber of the Supreme Court, whose decisions are final and are not subject to appeal.
 
 Thus, disputes concerning the determination of jurisdiction when appealing against decisions of state authorities and local self-government in the field of land relations are a derivative category of disputes, which has its history of formation, forms an independent subject of judicial consideration and is based on the application of general and specific rules determined by, accordingly, the legislation and judicial practice.

Case Concerning Right of Passage over Indian Territory (Portugal v. India). (Preliminary Objections.)

International Court of Justice — Competence of — Article 36 of Statute — Optional Clause — Compatibility of Declaration of Acceptance with — Retention of Power to Withdraw Categories of Disputes from Jurisdiction of Court — Definition of Dispute Through Diplomatic Negotiations — Domestic Jurisdiction of State — Question Falling Within — Date When Dispute Arose — Joining of Preliminary Objections to Merits.

The Mavrommatis Palestine Concessions.

International Law — Sources — Absence of Applicable Rules — Choice of Rules by the Permanent Court of International Justice.League of Nations — Covenant of — Article 15, Paragraph 8 — Jurisdiction of the Council — Compared with Jurisdiction of International Tribunals.Permanent Court of International Justice — Contentious Jurisdiction — Law Applicable — Absence of Applicable Rules.Permanent Court of International Justice — Statute — Adherence to Procedure — Apparent Departure from Previous Decisions — Decision in the Matter of Jurisdiction in Judgment No. 2 Distinguished from Analogous Decision in Advisory Opinion No. 4.390Permanent Court of International Justice — Jurisdiction — Pleas to the Jurisdiction — Procedure — Distinction between (the Court's) Jurisdiction in regard to Limited Categories of Disputes and (the Council's) Jurisdiction under Paragraph 8 of Article 15 of the Covenant of the League of Nations.