Conciliation Procedures Research Articles

A SETTLEMENT AGREEMENT IN ECONOMIC PROCEEDINGS

The article examines a settlement agreement as one of conciliation procedures in economic proceedings. For reconciliation, the parties must take active joint actions to achieve a result. It was revealed that the procedure for the reconciliation of the parties and the content of the settlement agreement are not and cannot be established by the current procedural legislation, since it is actually a negotiation process that is impractical to regulate in detail. However, the draft settlement agreement as a result of joint efforts is submitted to the court for further approval, and approval is not a formal, automatic act of the court. Domestic procedural codes are analyzed and it is proven that the grounds for a judge’s refusal to approve a settlement agreement are clearly established by the procedural law, but are not identical in different laws. It is proposed to supplement Article 192 of the Economic Procedural Code of Ukraine with such reasons for refusing to approve a settlement agreement as "the terms of the agreement do not meet the interests of society" and “there are reasonable grounds to believe that the conclusion of the agreement was not voluntary, or the parties have not reconciled”. The author agrees with the position that the parties to the settlement agreement should reach a compromise on all important substantative legal issues that belong to the subject of the dispute and can be implemented by the participants in the case. On the other hand procedural issues cannot be a part of the settlement agreement. It is proposed to highlight the following positive features of the settlement agreement: 1) the settlement agreement allows the parties to resolve the conflict without a lengthy court process, saving time and resources of business and the judicial system; 2) the settlement agreement gives the parties the opportunity to go beyond the requirements and independently choose the terms of dispute resolution; 3) resolving the dispute through an settlement agreement contributes to maintaining good business relations between the parties; 4) settlement agreements reduce the burden on the judicial system; 5) the use of settlement agreements by Ukrainian business entities increases the competitiveness of the Ukrainian business environment in the world. The task of the court is to prevent abuses in the process of concluding a settlement agreement and the infringement of the interests of the parties as well as other persons.

Legislative regulation of relations social dialogue

The article analyses the Laws of Ukraine in the field of social dialogue relations and explores ways to harmonize and/or improve their provisions, which would enhance the guarantees of interaction and mutual understanding between the parties involved in such dialogue. The main provisions regarding social dialogue, particularly those concerning the resolution of collective labour disputes and labour mediation, should be enshrined in the fundamental regulatory act in the field of labour relations - the Labour Code of Ukraine (or a codified act that may replace it). The article provides a characterization of the Laws of Ukraine that are interconnected with the Law of Ukraine «On Social Dialogue in Ukraine» on issues concerning the subjects of such legal relations, including those that define the participation of executive authorities and local self-government bodies in social dialogue relations, as well as relevant draft laws. It also presents the provisions of the Law of Ukraine «On Trade Unions, Their Rights and Guarantees of Activity» that require harmonization with the fundamental regulatory act on social dialogue, as they limit its scope concerning the participation of trade unions/ their associations in social dialogue relations. It is proposed to address the identified inconsistencies by aligning them with the fundamental legislation on social dialogue. Attention is drawn to the contentious status of local self-government bodies as subjects of social dialogue due to the combination of partnership and accountability. It is noted that the Law of Ukraine «On the Procedure for Resolving Collective Labour Disputes» regulates the stages of resolving collective labour disputes, one of which is conciliation procedures. This procedure corresponds to the forms of social dialogue defined in the Law of Ukraine «On Social Dialogue in Ukraine». Therefore, there is a need to substantively synchronize the legislative rules of conciliation procedures during the resolution of collective labour disputes with the norms of legislation on social dialogue. Arguments are presented that labour mediation is one form of social dialogue: 1) it involves the interaction of parties in an out-of-court, structured procedure aimed at preventing conflicts, conducted through negotiations; 2) the scope of the Law of Ukraine «On Mediation» includes relations related to conducting mediation to prevent potential conflicts (disputes) or to resolve any existing conflicts (disputes), including labour disputes. It is concluded that the Law of Ukraine «On Social Dialogue in Ukraine» should be harmonized with the Law of Ukraine «On Mediation» regarding the definition of forms of social dialogue.

Принцип конфиденциальности в системе принципов гражданского и арбитражного процессов

The article deals with the problem of implementing the principle of confidentiality in the system of fundamental principles of civil and arbitration proceedings. The author proceeds from the universal nature of the principles of the civil process, according to which they must be embodied at each stage and stage of legal proceedings. The principle of publicity of the civil and arbitration process is analyzed, it is given the utmost importance to ensure the “transparency” of justice, the implementation of the request of civil society to participate in the administration of justice. The principle of confidentiality is considered as one of the beginnings of the private law sphere (for example, arbitration), is understood as the antithesis of publicity. The inclusion of the principle of confidentiality in the area of the civil process is associated with the introduction of the institute of judicial conciliation procedure into the procedural area. It is shown that the judicial conciliation procedure is a part of the civil procedural and arbitration procedural forms, due to which the principle of publicity cannot but apply to it. Proposals are made to improve the institution of judicial conciliation in terms of limiting its confidentiality and expanding the legal status of a judicial conciliator.

Mediation and conciliation centers and their impact on resolving legal disputes in UAE “Under Federal Law No. 17 of 2016 and its amendment No. 5 of 2021”

This research endeavors to assess the legal requirements for the operation of mediation and conciliation centers in the UAE based on Federal Law No. 17 of 2016 and its amendment in 2021 No. 5. It is structured into three main sections: the first establishes and defines these centers, the second defines conciliation procedures and the third considers the preceding. The aim is to identify the legal procedures associated with mediation and conciliation centers within the UAE judicial systems and their function in providing solutions for civil and business litigations with the most efficiency and minor financial investments. It also calls for using other forms of conflict adjudication before adopting the legal approach. The conclusions and recommendations indicate the necessity of further improving the Mediation and Conciliation Centers Law due to the necessity of legislative shifts, which would contribute to the UAE’s leading position in legislation related to centers for mediation and conciliation.

Regarding the application of the terms «peace agreement», «аgreement on conciliation», «conciliation statement» in national procedural legislation

This article is devoted to the study of the application of the terms «peace agreement», « аgreement on conciliation «, «conciliation statement» in the procedural legislation of Ukraine. This study was conducted from the point of view of the content of these terms. At the same time, the etymological meaning of each term, its origin and meaning was studied. In addition, the study of the topic was carried out taking into account the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. Thus, in the ECtHR, it is also possible to apply the conciliation procedure through the conclusion of a relevant agreement by the parties to the case. The procedure itself and the document submitted to the court is called «friendly settlement». The use of the same term for the same legal institutions and phenomena is of great importance for legal understanding and law enforcement. In addition, when defining a term, not only the correspondence of the term itself to its meaning is important, but also the emotional coloring. That is why, in the course of the study, it was concluded that the term used in the Civil Procedure Code of Ukraine and the Economic Procedure Code of Ukraine is inappropriate. This is due to the fact that the subject matter of the case in court can only be part of a larger conflict that exists between the parties and will not be exhausted after the court approves the terms of the settlement agreement. And the use of the term «аgreement on conciliation» is considered more appropriate. The prefix «pri-» in the word means approximation, joining, incomplete action or sign. That is, the term «аgreement on conciliation» from the point of view of emotional coloring and meaningful content most corresponds to the tasks of the procedure under study. The application for conciliation, the submission of which is provided for by the Code of Administrative Procedure of Ukraine, also does not correspond to the content of the procedure of conciliation in court through the conclusion of an agreement by the parties to the case. A statement is a type of procedural document in which a party to the proceedings makes a claim or request. In turn, the agreements reached by the parties regarding the subject of the dispute and other procedural issues are recorded in the form of the agreement.

Synergetic Vectors of Development of Individual Forensic Theories in the context of Modern Criminal Proceedings (a Preliminary Aspect)

A rapidly developing society determines the need to adjust well-established approaches to understanding and regulating crime prevention mechanisms. It should be noted that the modern criminal policy of the state is on the verge of systemic changes. Balance of public and private interests; authority and independence of subjects of criminal proceedings; means of combating crime and social control; public and secret methods of exposing criminals; conflict and compromise; defense and prosecution; complex and simplified procedural forms of legal proceedings; inevitability of criminal prosecution and conciliation procedures; verbal and digital technologies in legal proceedings; professional skills and technical means — these are the few systemic formations, the content of which requires a modern rethinking with dew regard to prevailing realities of the functioning of society. And here the key supporting role in the formation of effective technologies for solving the problems of modern criminal proceedings, as a mechanism of complex systemic formations operating in the context of multifactorial law enforcement practice, belongs to criminalistic science. At the same time, an important tool in understanding and modeling promising vectors of the development of a system of private forensic theories is the synergetic approach, which significantly complements the wellestablished structural and systemic method in scientific knowledge. The use of the synergetics methodology makes it possible to identify not only the intrastructural connections of the system of forensic knowledge, but also to assess how such a system as a whole is affected by external (legal, ideological, etc.) factors. And the most important thing is to ensure the harmonious (regarding the changing realities of law enforcement practice) progressive development of individual private forensic theories.

Results of implementation of conciliation procedures in civil proceedings

The overload of courts, as well as the duration of consideration of cases, necessitates the use of alternative dispute resolution measures. This indicates the relevance of improving conciliation procedures in the context of civil proceedings in Kazakhstan. The purpose of the work was to study the specifics of ensuring conciliation procedures in the resolution of civil law disputes. The article used the method of analysis, synthesis, comparison, deduction, generalisation, formal-legal. As a result, the history of the formation of the institute of peaceful settlement of disputes in civil proceedings of the Republic of Kazakhstan was revealed. The system of alternative means of dispute settlement, their advantages, and role in strengthening social relations in the country was expressed. In the work, it was established that the settlement of disputes on the basis of conciliation procedures is consistent with the conceptual approaches to the development of the national legal system in Kazakhstan. It has been established those civil proceedings in Kazakhstan are characterized by simplification and humanisation. As a result of the application of conciliation procedures not only improves the activity of the judicial system, but also increases the level of legal consciousness of the Kazakh people, their trust in the judiciary. Thus, the socio-legal significance of informal and flexible ways of conflict resolution has been proved, which is an important component of civil proceedings in Kazakhstan. In the course of the study, the content of various normative legal acts was studied to reflect the peculiarities of the regulation of the procedure for the settlement of private legal disputes on the basis of conciliation procedures. Particular attention was focused on the provisions of conceptual and strategic documents that enshrine the development of conciliation procedures as one of the key objectives of legal proceedings and the national legal system. The findings of the study can be used in the development of national strategies to enhance the role of judicial mediation in civil proceedings in Kazakhstan

Примирение в условиях цифровизации судебной деятельности

Digitalization of judicial activity is a natural process of modern society. The practical use of information technology in the work of the court has a positive effect on the optimization of legal proceedings. Digitalization of the court’s actions within the framework of the procedural function of facilitating reconciliation of the parties will allow bringing judicial reconciliation, and subsequently all types of conciliation procedures to a new level of their relevance to society. The introduction of information technology in conciliation procedures can be carried out on the basis of the judicial system. The author of the article substantiates that the potential of reconciliation is contained in the qualitative borrowing of the experience of the process of digitalization of the judicial system. The use of electronic document management and notification, online communication and video conferencing serves as an additional condition for the popularization of conciliation procedures.

Conciliation Proceedings in the System of Means of Increasing the Efficiency of Justice

The implementation of a phased reform of the judiciary in recent years has been one of the most important tasks in the development of the rule of law in Russia. The main goal of the ongoing reforms is to strengthen an independent, independent judiciary capable of effectively implementing the function of the administration of justice. In the system of means that ultimately contribute to improving the effectiveness of judicial activity, the author examines the gradually introduced conciliation procedures. Accordingly, the main purpose of this study is to analyze the results of the implementation of conciliation procedures in law enforcement. The article defines the legal regulation of conciliation procedures, the specifics of their application in judicial activity. The results of statistical data on the work of courts to consider civil cases according to the parameters of interest are presented.

Applicability and legal consequences of the criminal conciliation procedure

This paper provides insight into the use and impact of criminal reconciliation as an alternative form of criminal procedure in the modern justice system. By allowing the parties to reach an agreement through negotiation under the supervision of the judiciary, criminal conciliation aims to achieve a speedy resolution of criminal cases, reduce the burden on the courts and repair as much damage as possible to the victims. The article first describes the legal basis of criminal reconciliation and its development in different countries, demonstrating the diversity of this procedure and its adaptability across the globe. Subsequently, the article analyses in detail the conditions and procedures applicable to criminal reconciliation, highlighting the various factors that need to be taken into account in its practical operation, including the nature of the case, the will of the parties, and the possible legal consequences. Through case analyses, it reveals the advantages of criminal reconciliation in dealing with certain types of cases, such as the ability to resolve disputes quickly and reduce litigation costs and time. In addition, the article also discusses the limitations and potential risks of criminal settlements, such as the possibility of compromising the fulfilment of justice and the lack of necessary transparency and oversight in some cases. Finally, the article proposes a series of improvements to the criminal settlement process, including strengthening the oversight mechanisms of the process, ensuring the fairness of settlement agreements, and expanding public awareness and understanding of the process. Through comprehensive analyses and discussions, this article aims to provide legal professionals, scholars, and policymakers with a perspective for an in-depth understanding of criminal reconciliation, and to help them assess and improve existing judicial practices so that criminal reconciliation can not only enhance judicial efficiency, but also operate on the basis of ensuring fairness.

Дискурсы примирения и проблемы институционализации примирительных процедур по уголовным делам

<p style="text-align: justify;">The global trend of development of new approaches in criminal proceedings, as well as the emerging domestic practice of restorative justice in the last two decades set objective prerequisites for the institutionalisation of conciliation procedures in criminal cases in Russian law. However, attempts to legislate them have not yet been successful. The author considers the clash of socio-cultural discourses as a key factor of resistance to innovation. The article analyses the difference between the understanding of reconciliation in the concept of restorative justice and the dominant legal discourse on reconciliation in criminal cases, and considers the main ideas of the draft laws developed by the initiative working group of the Public Centre for Judicial and Legal Reform in 2020 and 2021. It is shown that interpreting the characteristics of restorative justice in terms of unproblematised legal axioms contradicts the proposed initiatives. The identification of the discursive grounds behind the different positions, against the background of increasing recognition of the role of reconciliation procedures, is a prerequisite for improving the conceptual system that corresponds to the objectives of modern humanistic criminal justice.</p>

O procedurze i skutkach wycofania zaświadczenia A1 raz jeszcze. Glosa do wyroku TSUE z 16 listopada 2023 r., C-422/22

ZUS’s withdrawal of the A1 certificate regarding an employee delegated to work in the EU resulted in practical problems related to including this employee in the appropriate social security system of the place of work. As a result, in its jurisprudence the Supreme Court formulated a controversial requirement to precede the withdrawal of the A1 certificate by ZUS by agreeing with the institution of the place of work on retroactive subjection to the applicable legislation. This position, which is assessed critically in the literature, was rejected by the Court of Justice of the EU in its judgment of November 16, 2023, C-422/22. The Court found that Articles 5, 6 and 16 of Regulation (EC) No 987/2009 must be interpreted as meaning that the institution that issued an A1 certificate which, following a review on its own initiative of the evidence on which the issue of that certificate is based, finds that evidence to be incorrect, may withdraw that certificate without first initiating the dialogue and conciliation procedure laid down in Article 76(6) of Regulation (EC) No 883/2004 with the competent institutions of the Member States concerned with a view to determining the national legislation applicable. The subject of the gloss is an approving discussion of this judgement.

International experience in the application of agreements in criminal proceedings

Further study of the institution of “agreements in criminal proceedings” is appropriate taking into account three main factors: analysis of historical experience, generalization of the practice of applying current legislation and study of foreign experience: criminal procedural legislation and the practice of its application. The institution of criminal proceedings based on agreements is a successful “borrowing” of the legislative experience of other states and belongs to special judicial procedures. Perceived positively by society, as the possibility of an agreement between the suspect or the accused and the prosecutor or the victim provided by law has become a common alternative way of resolving criminal legal conflicts. In the legislation of the European Union, the procedures for making a court decision on the basis of a plea agreement are not completely identical to the practice in the legislation of the United States: the initiative of the parties in resolving the issues of prosecution is transformed by the impossibility of changing the accusation by agreement, and the “passive position” of the court in deciding the procedure for resolving the criminal case proceedings is its limited activity. The special procedure for passing a court decision on the basis of a plea agreement has a procedural legal nature, similar to continental conciliation procedures: they are based on the consent of the parties, but are not related to the conclusion of the agreement by the parties as a process of negotiations regarding its terms, formalization of the agreements reached in a certain way. The subject of agreements is agreement with the charges presented, or the punishment proposed by the prosecutor, or the simplification of the court procedure for consideration of criminal proceedings. Under the influence of the European procedural culture and practice, the agreement in the US legislation on the recognition of guilt acquires new characteristics: the court often shows wide boundaries for consideration (discretion) in imposing punishment; takes an active part in the discussion of the terms of the conclusion of the agreement by the parties; as a result of the prosecutor’s unlimited powers to make decisions regarding the conclusion of the agreement, the latter becomes similar not to a bilateral agreement between the accused and the prosecutor after adversarial negotiations, but to a unilateral determination by the prosecutor of the degree of guilt of the accused and the appropriate punishment for him.

The legal policy in fostering the use of alternative dispute resolution procedures

The complications of social relations contribute to the growth of the number of disputes that result from conflict situations. In these conditions, the role of the state’s legal policy, aimed at stimulating the participants of social relations to choose economical, efficient, and prompt methods of conflict resolution, is significantly increasing. Improving the quality of dispute resolution directly correlates with a drop in the number of cases pending before a judge. This is achievable only through the development of the mechanisms of pre-trial dispute resolution and conciliation procedures. This paper aims to study legal issues and perspectives on the development of alternative dispute resolution based on the analysis of the legal policy of the Russian Federation. To achieve the mentioned goal, comparative legal analysis, a systemic approach, and formal-juridical methods were used to show the current developments of the legal policy of the Russian Federation in the sphere of stimulating and incentivizing alternative dispute resolution. Authors concluded that, unlike the domestic legal order, in foreign states, there is not only a formed normative basis for the procedures of alternative dispute resolution but also political acts of stimulating tone, designed to actively involved in these procedures more and more participants of social relations in a state of conflict. It has been established that the legal policy on introducing alternative dispute resolution procedures in foreign legal orders is characterized by a shifted emphasis on family law.

Mediation and judicial conciliation in family disputes in Russia: Issues and perspectives for development

The article considers the factors influencing Russia’s insufficient spread of mediation and judicial conciliation. It is substantiated that eliminating these factors will contribute to the development of conciliation procedures. The article aims to analyze the factors influencing the insufficient spread of mediation and judicial conciliation in Russia and offers ways to overcome them. The authors applied formal legal analysis to investigate the legal regulation of mediation and judicial conciliation. A systemic approach was used to address the mediation and judicial conciliation issues in Russia and offer ways to solve them. The article gives examples from court practice illustrating positive results in the form of concluded amicable and mediation agreements with the court’s assistance in achieving reconciliation by the parties to the dispute and studies the terms of amicable agreements. It also substantiates the ability of family disputes to be resolved by mediation and reveals procedural violations, which courts allow when approving amicable agreements

Conciliation Procedures in the Civil Process: Legislative Innovations and Prospects for Further Development

The paper analyzes the provisions governing conciliation procedures consolidated in the Russian procedural legislation in 2019. The author elucidates the legal nature of alternative dispute resolution in general and conciliation procedures in particular, explains their informal nature and inexpediency of giving them the same strict legal form as procedural actions. The legislative consolidation of conciliation procedures is primarily associated with the need to inform citizens about the possibility of their use and registration of their result. Based on the study of judicial data, the author concludes that, despite a number of positive legislative innovations, the use of conciliation procedures has not fundamentally changed. With this in mind, the author highlights cultural, organizational and economic obstacles that prevent a wider application of conciliation procedures. Based on the results of their analysis, the author proposes three main directions for further legislative developments. The paper pays special attention to the judicial conciliation procedure that appeared in 2019, which has great potential, but requires the creation of appropriate conditions for its application.

Преимущества примирительных процедур для сторон в судебном процессе

Conciliation institutions reduce caseload. Some states also see them as a way to ensure public access to justice and strengthen social peace. This article introduces a systematic approach to conciliation procedures, or pre-court mediation. It describes such concepts as social management system, legal regulation, judicial activity, justice, judicial enforcement, alternative methods of dispute resolution, and conciliation procedures. The research relied on the methods of formal logic, legal system analysis, formal legal method, and functional methods. The author identified a system of social regulation that combines reconciliation and legal procedures, as well as classified domestic conciliation institutions as private, private-public, and public. Institutions of public conciliation appear when private reconciliation integrates with jurisdictional activities. Public principles enter conciliation procedures if the state body, e.g., court, has the right to regulate, organize, or conduct reconciliation, as well as approve its results. Pre-court reconciliation has some advantage for the parties. First, it is effective if both parties sought reconciliation: even if the decision is not ideal, they may still find it satisfactory. Second, mediators are free to employ a wider range of regulators, both legal and non-legal, e.g., morality, religion, traditions, corporate norms, etc. Third, conciliation procedure is much less complex than a trial. Pre-court mediation is beneficial for the society in general and needs to be popularized as an effective de-litigating tool that is profitable for both parties. However, the scope of alternative forms of dispute settlement could be expanded only if the parties understand the personal benefits they get from pre-court mediation.

Alternative forms of resolution of administrative and legal disputes

Alternative forms of administrative-legal dispute resolution are considered in the article based on current legislation. The object of the study is public- legal relations that are formed in the process of resolving administrative-legal disputes. The subject of the research is the theoretical, organizational, legal and applied aspects of public legal regulation of alternative resolution of administrative-legal disputes. The purpose of the research is to build a theoretical model of alternative resolution of legal disputes. The methodological basis is a dialectical method of cognition using special scientific methods. In accordance with a generally systematic approach, comparative-legal, formal-legal methods were used. It is noted that the technology of alternative resolution of a legal dispute can be found out as a specially created and empirically based system of methods and rules of purposeful step-by-step activity in this direction and the very set of alternative forms of dispute resolution with a certain sequence of application. The resolution of administrative and legal disputes by state institutions of non-judicial protection is carried out by state bodies, local self-government bodies and officials whose activities are regulated by national legislation and departmental regulations. Administrative-legal disputes are classified according to the criteria of the bodies that resolve the dispute: those that are resolved in court, administratively, and conciliation procedures. The alternative way of resolving an administrative-legal dispute is proposed to be understood as a procedure for resolving administrative-legal disputes regulated by the norms of administrative and administrative- procedural law, which is not related to the exercise of public-authority powers by entities that are not parties to the dispute. The parties to the dispute may have public-authority powers, and the implementation of alternative resolution of administrative-legal disputes may be an element of administrative competence. Further research will be aimed at determining the possibilities of using digital technologies as an alternative form of administrative dispute resolution.

International Investment Disputes Resolution in the EAEU when Changing the Investor’s Personal Law

The paper identifies regulatory gaps in the Treaty on the Eurasian Economic Union in relation to the status of an investor when changing their personal law after making investments. There are also gaps in the procedural mechanism for organizing and conducting conciliation procedures in accordance with the above agreement on the initiative of an individual — the applicant whose legal interests were violated. Based on the results of a study carried out from the perspective of comparative law and a formal-dogmatic approach, the author proposes solutions to improve the international legal regulation of investment activities within the EAEU on the identified issues in order to create a favorable investment climate for attracting foreign investment to the Russian Federation from partner countries in the EAEU. The theoretical significance of the work lies in the formulation of the author’s definition of the concept of international legal innovations and the designation of their characteristics based on a doctrinal understanding of examples of UNCITRAL rule-making practice.

Судья в отставке как судебный примиритель

The author of the article notes that mediation is the currently relevant judicial conciliation procedure. The paper identifies gaps in the legal regulation of this institution, brings forward proposals for its further improvement. It is noted that a mediator acts as a sort of a filter, verifies the settlement reached with his help as to its legality, absence of any violation of rights of other persons and possibility of approval by court.