Adjudication Of Disputes Research Articles

Sustainable Development as a Wicked Problem in Investment Arbitration

Abstract References to ‘sustainable development’ and ‘sustainability’ can be found in decisions of investment arbitration tribunals and submissions from disputing parties. By relying on the concept of ‘wicked problem’, this article highlights the failure to articulate any clear relevance of sustainable development in the adjudication of investment disputes and structural limitations imposed by investor-State dispute settlement (ISDS). It proceeds in four steps. First, the article defines wicked problems and their distinguishing properties. Second, it shows how tribunals have used sustainable development in a way that evidences these distinguishing properties. Third, in light of submissions from respondent States and claimants, the article shows that ISDS imposes structural limitations on narratives that relate to sustainability and sustainable development. Finally, it examines the discussions on sustainability under the umbrella of the United Nations Commission on International Trade Law Working Group III and stresses the need for a political resolution outside ISDS proceedings.

Assessing the Role and Future of the Tax Court Post-MK Decision No. 26PUU-XXI2023

Taxation, as a fundamental component of the system of cooperation, serves as a financial resource to underpin governmental financing and expenditure while also acting as an instrument for the regulation of social and economic policies aimed at promoting equitable welfare. The process of tax collection occasionally engenders inequities for taxpayers; consequently, Law 14 of 2002 instituted the Tax Court as an autonomous judicial entity designated for the adjudication of tax-related disputes. Notwithstanding its establishment, the Tax Court encounters significant challenges, notably the dualism of authority wherein the Supreme Court provides technical guidance. At the same time, the Ministry of Finance oversees organizational, administrative, and financial directives. In the Constitutional Court's Decision (MK) Number 26/PUU-XXI/2023, the regulation pertaining to the oversight of the Tax Court was deemed inconsistent with Article 24, paragraphs (1) and (2) of the 1945 Constitution, prompting the Constitutional Court to impose a deadline of December 31, 2026, for the consolidation of the Tax Court's guidance authority under the auspices of the Supreme Court. Consequently, this research endeavours to scrutinize the role and prospective trajectory of the Tax Court alongside the measures necessary to effectuate the transfer of guidance authority in alignment with constitutional mandates. Hence, the author has entitled this study "Measuring the Role and Future of the Tax Court after the Constitutional Court Decision Number 26/PUU-XXI/2023." The questions posed for investigation are: What is the Role and Position of the Tax Court as delineated by the Tax Court Law, and what is the Role and Future of the Tax Court subsequent to the Constitutional Court Decision (Number 26/PUU-XXI/2023)? To address these inquiries, the author employs a qualitative writing methodology complemented by a normative legal perspective.

Pushing the bar – elite law firms and the rise of international commercial courts in the world economy

In the last thirty years, international commercial courts (ICCs) have emerged around the world. ICCs offer adjudication in international commercial disputes. They are not creatures of international law – as their name may suggest – but specialized domestic courts embedded in national legal orders. The rise of ICCs is remarkable in that scholars expected commercial arbitration to gradually displace litigation in the twenty first century. What drives the creation of ICCs? Legal research suggests that ICCs are a manifestation of a new era of assertive unilateralism in global governance. Scholars point to states’ geopolitical motives, backlashes against private authority in the form of arbitration, and economic statecraft. Drawing on the New Interdependence Approach, this study argues that most ICCs are the result of policy entrepreneurship of elite law firms in the pursuit of growing the global market for commercial litigation. Depending on the legal-political context, they forge coalitions with domestic judiciaries or political leaders to advance ICC projects. The study highlights deep-rooted changes in the global dispute resolution landscape, the important role of commercial law in International Political Economy (IPE), and points to the mostly overlooked significance of law firms and judiciaries as architects of global economic governance.

Justice of the Peace Courts in the Adjudication of Property Disputes in the Ottoman Countryside (1839–1914)

Abstract This article examines the institutionalization of justice of the peace courts in the 19th-century Ottoman Empire on the one hand, and on the other investigates the adjudication of property disputes in the lowest administrative units (villages and communes), within the context of establishing a regime of individual and exclusive property rights. Such an analysis historicizes the transformation that justice of the peace courts underwent in the 19th century. It therefore seeks to free these courts from being regarded as an ahistorical extrajudicial and/or judicial dispute settlement mechanism (sulh).

Theoretical Evaluation and Application of Case Law Teaching in General Principles of Commercial Law

The General Principles of Commercial Law is a general summary and abstraction of the normative system of commercial law, which is of great guiding significance for the rules of adjudication of disputes in commercial practice in reality, and the lack of general commercial law norms makes the research and teaching of the General Theory of Commercial Law particularly important. The study of general commercial law is undoubtedly of more fundamental significance than the study of specific areas of commercial law. With the development of social economy, commercial law embodies more and more technical and practical, and the cultivation of commercial legal talents is more and more oriented to the employment demand, case study teaching has advantages in the teaching of general commercial law and should be emphasized. In the case teaching of general commercial law, the irrevocability of securities trading results can clearly reflect the style of commercial law to protect the security of transactions. The proportion and priority of case teaching in the teaching of general commercial law should be emphasized.

From Fact to Applicable Law: What Role for the International Climate Change Regime in Investor-State Arbitration?

Abstract While many investor-state dispute settlement (ISDS) proceedings based on international investment agreements have dealt, directly or incidentally, with environmental issues, state measures relating to the mitigation and adaptation to climate change have been subject to a small number of reported cases. This article demonstrates that there is a significant gap between the number of investor-state disputes having a direct relevance with climate change, on the one hand, and the number of such cases that have actually raised climate change as a material legal or factual issue. In addition, arbitral tribunals faced with disputes related to measures or sectors that are of direct relevance to climate action have, to date, virtually never engaged in any sort of substantial analysis of international climate change treaties and related instruments, rules, or practices. Against this backdrop, this article will explore ways for arbitrators and parties to ISDS proceedings to better consider the climate regime — in particular, the Paris Agreement and instruments arising therefrom — in ISDS proceedings beyond its current limited role as an element of context. While the literature has mostly focused on integrating climate change concerns in ISDS, this article goes further by exploring how states’ international climate obligations could play a greater role in the adjudication of investor-state disputes, including by providing states with a justification for implementing more ambitious regulations as well as tribunals with guidance for interpreting substantive obligations in investment treaties.

The International Court of Justice: A Proper Forum for the Balanced Adjudication of Trade-Environment Disputes

The World Trade Organization’s (WTO) Dispute Settlement Body (DSB) sometimes adjudicates cases with environmental undertones while hearing trade disputes. Considering that the DSB is mainly responsible for the application of WTO international trade rules to these cases, it is arguable whether the DSB is the most appropriate adjudicatory forum on cases with environmental undertones. The article analyses four cases decided by the DSB: (1) The United States – Restrictions on Imports of Tuna (Tuna-Dolphin I), (2) the United States – Restrictions on Imports of Tuna (Tuna-Dolphin II), (3) the European Communities – Measures Affecting the Approval and Marketing of Biotech Products (Biotech Product’s case), and (4) the United States – Import Prohibition of Certain Shrimp and Shrimp Products (the US Shrimp case). It also analyses four cases with trade and environment considerations decided by the International Court of Justice (ICJ): (1) Whaling in the Antarctic (Australia v Japan), (2) Gabčíkovo-Nagymaros (Hungary v Slovakia), (3); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)/Construction of a road in Costa Rica along the San Juan River (Nicaragua v Costa Rica); and (4) Pulp Mills on the River Uruguay (Argentina v Uruguay). From the analysis, this article finds that the ICJ, rather than the DSB, would be the appropriate arbiter of trade cases with environmental undertones. This article finds that, unlike the DSB, the ICJ has a history of balanced adjudication of cases with trade-environment conflict and appears a better fit to decide cases with elements of trade and environment. As such, this option would guarantee a more neutral avenue for the adjudication of trade-environment conflicts.

행정구역 획정원리로서의 공유수면 매립지 경계획정 원리에 관한 일고찰

Interest in the reorganization of administrative districts is increasing due to the plan to promote the incorporation of Gimpo-si, Gyeonggi-do into Seoul Special City, triggered by the leader of the ruling party at the time in October 2023. Changes in the metropolitan local governments to which a basic local government belongs may lead to conflicts of interest between metropolitan local governments so it is highly likely that this situation will not be easily resolved depending on the political situation and will ultimately depend on judicial judgment. Under these circumstances, the confirmation of the constitutional discipline related to the delimitation of administrative districts is worth sufficient consideration from a practical aspect beyond simple theoretical interest.
 As part of the basic process for this work, it is meaningful to examine the position of the Constitutional Court on the demarcation of administrative districts for newly reclaimed lands, where multiple decisions were made in the form of competence dispute adjudication, along with the review on the legal system related to administrative district demarcation. In particular, this study reviews the Constitutional Court’s decision[Constitutional Court 2019.4.11. 2015 Heonra 2] which changed the precedent of considering the maritime boundary of public waters as the boundary of the newly reclaimed lands and demands comprehensive consideration of all circumstances based on the principle of equity. Through this study the legitimacy of the Constitutional Court's position of actively considering the purpose of reclamation and the status of the reclamation entity was confirmed, and the issue of jurisdiction over public waters remaining after reclamation and whether acquisition of prescription for the reclaimed land was also reviewed.
 In conclusion, this study can fully accept the Constitutional Court's position of pursuing equity by reviewing all circumstances related to the demarcation of administrative districts for newly reclaimed lands, but it raises some questions about conceptualizing this as a “principle of equity” and confirms that further discussion is necessary.

The legal construction for the International Chamber of Commerce arbitration in resolving corporate conflict

The International Chamber of Commerce (ICC) is a private international non-governmental organization that provides its services to the international trade sectors (Wetter, 1985). Further, the ICC supervises its arm known as the International Court of Arbitration, which is an independent arbitral institution, affiliated with the ICC, which administers arbitration proceedings following the arbitration rules of the ICC but without adjudication of disputes as the adjudication of disputes is the jurisdiction of the arbitral tribunal. Yet, we have two problematic issues that the research treats: the confusion in the nomenclature and competencies between the components and units of the ICC during its practice of arbitration to settle corporate conflicts; while the second issue is that the basic elements of the arbitration process at the ICC based on its arbitration rules is not clear. Hence, the research approached these two issues in a direct presentation of the reality of arbitration at the ICC. The research emphasized the new modifications of the ICC arbitration system that resolve both above problematic issues.

The Application of Customs in Adjudication of Dowries Return Disputes—Analysis Based on 210 Public Judgment Documents in 2024

The Application of Customs in Adjudication of Dowries Return Disputes—Analysis Based on 210 Public Judgment Documents in 2024

대통령 거부권의 헌법적 한계

The presidential veto power to demand reconsideration of a law passed by the National Assembly may be subject to constitutional limits. If such limits exist, debates may arise over their existence, the grounds on which they are based, and the specific nature of these limits. Considering the constitutional position of the president and the form of government, the presidential veto power is constrained by constitutional limits.
 Under the current constitution, the president is a part of the executive branch domestically, adopting a mixed form of government that is primarily presidential but incorporates elements of a parliamentary system. The democratic legitimacy granted to the president as an executive is theoretically equivalent to the democratic legitimacy granted to the legislature, which holds the fundamental legislative power. Even if the president is recognized to have the veto power as a participatory right in the legislative process, such authority cannot infringe upon or exclude the National Assembly’s legislative decision-making power.
 From the perspective of the principle of separation of powers, if the president were granted an unlimited veto power, it could potentially infringe on the judicial power of the Constitutional Court by conferring an abstract normative control authority. The exercise of the president’s veto power should be limited to bills that are clearly unconstitutional, incur substantial costs endangering the soundness of national finances, or are related to the president or his/her family. Beyond constitutional limits, if the presidential veto power is exercised, constitutional sanctions may be necessary through adjudication of power dispute or impeachment trials.

Second Thoughts? The International Adjudication of Environmental Disputes 30 Years Later

Abstract The role of international adjudication with respect to environmental disputes has been a matter of significant debate, particularly since the late 1980s. Scepticism about the creation of an international environmental court, the lack of use of specialised environmental chambers and the rise of non-compliance procedures largely supported the view that international adjudication had a limited role to play in this context. This conventional view is today being reconsidered. This is due in part to the surge in domestic climate litigation but also, as argued in this brief contribution, to the potential of international adjudication to address the challenges that had once supported arguments against it, namely (1) the ambiguity and indeterminacy of substantive provisions in multilateral environmental treaties; (2) States’ own capacity limitations to discharge their duties under such treaties, and (3) the need for treaty regimes to accommodate changing social, economic, political and, of course, environmental circumstances.

Transformation of Intangible Cultural Heritage in the Kenyan Coastal Region: Traditional Healing, Witchcraft and Witch Hunts in a Contemporary Context

The intangible heritage of Coastal Kenya pertains in great part to the Mijikenda people and consists of ceremonies, rituals, beliefs, forms of healing, prayer, and adjudication of disputes, which are subject to various cultural and religious factors that affect their perception and transform them. The younger generation’s perception of them, influenced by modern life’s technologized approach to culture, hugely contributes to such transformations. As a result, cultural roots fall into oblivion, which sometimes has dramatic effects, for example, the abandonment of witch hutching, paradoxically causing negative social effects. Not following traditional practices is not equal to disbelief in witches. Therefore, it often occurs that someone is accused of witchcraft to kill them without any possibility of reconciliation with the community, because the rejection of traditional practices causes the lack of any remediation for an instance of witchcraft, and elicits the easiest solution: the death of the accused. Such events happen to be combined with economic reasons, like the desire of some members of the youngest generation to sell the family land or even the sacred forest, in the care of the elders, who are then usually the ones accused as witches. This kind of cultural knot, appearing in the last 150 years due to interference of various cultures and religions, especially Christianity, requires careful consideration, also given the importance of interfaith dialogue, supported by the Coast Interfaith Council of Clerics Trust (CICC), among others. This investigation on transformation of cultural practices in Coastal Kenya is based on in-depth interviews with representatives of Malidni District Cultural Association (MADCA), field research and conversations with elders, and a review of research materials provided by the National Museums of Kenya Library in Malindi, and the Pwani University Library in Kilifi, Kenya.

Multi‐tiered dispute resolution clauses in engineering contracts: A Jordanian legal perspective

AbstractThis study delves into the intricacies of the multi‐tier dispute resolution clause in engineering contracts, particularly within the Jordanian legal system. The multi‐tier dispute resolution clause has evolved from a traditional arbitration clause into a more comprehensive approach, reflecting the complexities of modern contractual relationships. The study employs a doctrinal or library‐based methodology involving a comprehensive review of relevant legal texts, statutes, regulations, and case law. The multi‐tier dispute resolution clause is defined as a contractual clause that stipulates the existence of different stages, each involving separate procedures, to address disputes and seek to resolve them. The study also examines the mandatory nature of the multi‐tier dispute resolution clause and the procedural defense based on an arbitration clause. The study concludes that following the sequence outlined, the multi‐tier dispute resolution clause should be binding. This necessitates the Jordanian legislator's intervention to establish a legislative framework that empowers decisions made by the Dispute Adjudication Board (DAB) or Dispute Avoidance/Adjudication Board (DAAB) to achieve the goals of multi‐tiered dispute resolution clause. It also calls for an amendment to Article (109) of the Civil Procedure Law, allowing procedural defense based on the Multi‐Tiered Dispute Resolution Clause, not limiting it to the arbitration clause, even if arbitration is not one of its tiers. This power should also extend to amicable settlements to ensure the proper implementation of the steps under the multi‐tiered dispute resolution clause.

Trends in the performance of arms‐length agencies in the Government of Canada

AbstractCanada mirrors developments in most countries with the growth of government agencies created to deliver public goods—whether it is service delivery, adjudication of disputes, regulatory oversight, enforcement activities—purported to benefit from an arms‐length relationship to cabinet. There is a robust comparative literature documenting the “agencification” of the state, yet Canadian studies remain mostly absent. This article draws on the Government of Canada's Public Service Employee Survey (PSES) microdata from 2017, 2011, 2005, and 1999 to test key hypotheses advanced by proponents of agencification, specifically that agencies are more innovative, autonomous, and efficient public organizations. We find that those working in enforcement agencies exhibit few of the purported advantages of agencification. We also observe that in recent years regulatory, adjudicative, and parliamentary agencies consistently surpass conventional department organizations on these metrics. Future research avenues are proposed to explore how governance and oversight reforms may explain this shift.

Judicial Review and the Jordanian Constitutional Court: False Start or Slow Start?

Abstract Judicial review of the constitutionality of legislation has moved in recent decades from being the exception to the rule among Arab states. Not only has it spread, but contests about adjudication of constitutional disputes have become much more prominent and political reform efforts have sometimes included a great emphasis on establishing or strengthening constitutional courts. In Jordan, longstanding calls for a constitutional court were finally met in 2011 and the Jordanian Constitutional Court began operating the following year. This article traces the background to establishing the court and analyzes its structure. It then assesses the Jordanian Constitutional Court in operation, first by examining its short history and then by analyzing why its emergence as a judicial actor has been slow and uneven and how this might be changed.

Determination of the Most Appropriate Alternative Dispute Resolution Methods for Airport Projects: A Fuzzy VIKOR Approach

Being prone to dispute, airport projects involve diverse stakeholders including also national and international aviation authorities, and this complicates the dispute resolution process in these projects. Hence, decision-makers should not entirely rely on standard forms of contracts to settle disputes in airport projects. Instead, these projects necessitate a specific dispute resolution framework that meets their needs. Even though some effort has already been devoted to developing a framework for ADR selection, most of these studies neglect airport projects. Furthermore, existing studies fell short of adopting more advanced techniques such as fuzzy set logic and Fuzzy VlseKriterijumska Optimizacija | Kompromisno Resenje (VIKOR), posing a variety of drawbacks. Thus, this study aims to guide decision-makers by developing a selection framework of Alternative Dispute Resolution (ADR) methods to resolve disputes in airport projects. Firstly, the literature was reviewed comprehensively to reveal the criteria affecting the selection of ADR methods. Next, Focus Group Discussion (FGD) session was conducted with the participation of 17 experts who have diverse experiences in the dispute resolution process in airport projects to omit or validate the detected criteria obtained from the literature review. This was then followed by the Fuzzy VIKOR method to evaluate the importance of each ADR method. In the final step, sensitivity analysis was performed to confirm the reliability of the results. The results confirmed that a plethora of factors governs the ADR selection process, pinpointing the need for a systematic and holistic framework. Secondly, the “Expert Determination” was determined to be the most convenient ADR method for airport projects. The “Expert Determination” was followed by the “Dispute Adjudication Board (DAB)” and “Arbitration”, respectively. Revealing the very first holistic framework concerning ADR selection for airport projects, this study significantly contributes to the dispute resolution domain. Furthermore, this proposed framework is believed to have promising benefits for the decision-makers while drafting the contract clauses in terms of ADR methods in airport projects.

The Long-Term Economic Legacies of Rebel Rule in Civil War: Micro Evidence From Colombia

A growing literature has documented widespread variation in the extent to which insurgents provide public goods, collect taxes, and regulate civilian conduct. This paper offers what is, to our knowledge, the first study of the long-term economic legacies of rebel governance. This effect is theoretically unclear. Rebel governance may generate incentives for households to expand production and accumulate resources. However, rebel rule may be too unstable to maintain such incentives. We explore empirically the effect of rebel rule on households’ economic resilience using a longitudinal dataset for Colombia. Results show a positive relation between wartime rebel rule and the ability of households to cope with weather shocks in the post-war period. Households in regions where armed groups were present but exercised limited or no intervention fare worse. This effect is associated with infrastructure improvement led by armed groups, their intervention in dispute adjudication, and their close interactions with local populations.

MANDATORY BINDING DISPUTE RESOLUTION IN THE BASE EROSION AND PROFIT SHIFTING (BEPS) TWO PILLAR SOLUTION

AbstractBinding taxpayer-initiated international dispute resolution has traditionally played a minor role in the international tax system. Despite being long pursued by corporate interests and increasingly accepted by developed countries, international tax arbitration has remained less developed and less respectful of private interests than investor–State arbitration. The binding multilateral dispute settlement endorsed by over 130 countries as part of the Organisation for Economic Co-operation and Development's Two Pillar Solution to issues raised under Action 1 of the Base Erosion and Profit Shifting (BEPS) project marks a change and is noteworthy at a time when some States are reconsidering their consent to the international adjudication of trade and investment disputes. The design of international dispute settlement in the Two Pillar Solution, and the focus on the protection of multinationals from juridical double taxation, displays little appreciation of the experience with dispute settlement in international trade and investment over the past two decades.

Adjudication and Resolution of Islamic Finance Disputes in Non-Muslim States: An Analysis of Islamic Law With Reference to International Law

Adjudication and Resolution of Islamic Finance Disputes in Non-Muslim States: An Analysis of Islamic Law With Reference to International Law