Disputes In Terms Research Articles

Resolution of Antam Gold Selling and Buying Disputes Reviewed From Economic Analysis of Law Theory

There was an agreement to buy and sell Antam gold between the seller, namely PT Aneka Tambang Tbk, which is a State-Owned Enterprise, and the buyer, namely someone from Surabaya. This agreement has legal consequences for the parties who make it and must be implemented in good faith. As agreed, the buyer has the right to receive Antam gold and is obliged to pay a certain amount of money according to the agreement between the parties. On the other hand, the seller has the right to receive a certain amount of money and is obliged to provide Antam gold by the sale and purchase agreement agreed upon by the parties. In this case, the buyer has paid the amount of money according to the agreed nominal value, but not all of the Antam gold received has been received. The buyer has tried to ask the seller for their rights but they have not been given them. On the other hand, the seller is a State-Owned Enterprise which in essence must not cause state losses. Regarding the resolution of the case, it was carried out through the courts. The question arises of how to resolve the Antam gold buying and selling dispute in terms of economic analysis of law theory. The research method in this research uses a normative legal research method with a case approach. This research uses the theory of Economic Analysis of Law. The results of this research are to find out the resolution of Antam's gold buying and selling dispute through the court, considering the theory of economic analysis of law.

Penyelesaian Sengketa Ekonomi Syariah Ditinjau dari Peraturan Mahkamah Agung Nomor 14 Tahun 2016 dan Hukum Islam

The many problems of sharia economic disputes have not all been resolved because the judges who resolve the problems of sharia economic disputes are not special judges who are capable and certified in handling sharia economic disputes. For this reason, this thesis was created to answer this problem, consisting of two problem formulations, namely: What are the Procedures for Settlement of Sharia Economic Disputes in View of Supreme Court Regulation Number 14 of 2016 and Islamic Law? The type of approach method used is qualitative method or literature study whose research uses written data such as books, journals, papers, as well as decisions of the Supreme Court and laws, or from document to document related to this research. From the results of this study it can be concluded that in the settlement of Islamic economic disputes in terms of Perma No. 14 of 2016 it is carried out in two ways, namely simple lawsuits and ordinary lawsuits while in Islam it is carried out by means of peace, arbitration, Al-Qadha.

Tax Treaty Dispute Resolution Procedures

The subject of the work is a comparative analysis of the OECD approach and the EU approach to the resolution of international tax disputes. The research is conducted on the basis of the provisions of the OECD Model Tax Convention, the OECD Multilateral Tax Convention, the EU Arbitration Convention and the EU Directive. The purpose of the work is to find the most effective mechanism for resolving international tax disputes in terms of ensuring the protection of taxpayers' rights in the dispute resolution procedure. The methodological basis of the work was made up of general scientific (analysis, classification, synthesis, deduction, induction, analogy), private scientific (system method) and special legal (formal legal and comparative legal) methods of scientific research. The scientific novelty of the work suggests the proposal and justification as a way to increase the effectiveness of the resolution of international tax disputes, the use of mediation in a mutually agreeable procedure with the provision of the taxpayer with the possibility of direct participation in the dispute resolution procedure. Based on the results of the study, the author came to the following conclusions. The practice of applying the mutual agreement procedure and arbitration shows that this dispute resolution mechanism has a number of significant drawbacks. In order to improve the efficiency of dispute resolution, the OECD and the EU are striving to develop mandatory arbitration and do not consider non-binding mechanisms, since they do not guarantee an agreement on the dispute. However, mandatory arbitration cannot be considered a universal instrument, since States see it as a threat to sovereignty. The experience of States that actively use mediation to resolve domestic tax disputes shows that mediation can also become an effective mechanism for resolving disputes at the international level, since it allows the parties to consider various aspects of the dispute from different sides. According to the author's position, the shortcomings of mediation outlined in the doctrine can be mitigated by granting the affected taxpayer the right to participate directly in mediation, presenting his position on the case.

Disharmonization in Managing Government Affairs in Batam City, Riau Islands Province

This study aims to find out and explain how the dualism of government affairs management occurs in Batam City, Riau Islands Province and the efforts of the Central Government in overcoming this dualism of authority, as well as formulating an ideal model for managing government affairs in Batam City, Riau Islands Province. This study used a qualitative approach with a descriptive type and in the form of field research (field research). Using management theories in government as well as several other supporting theories in explaining the picture of dualism and overlaps that occur in the management of government affairs in Batam City. The fact that the main problem in government management in Batam City is the occurrence of disputes in terms of authority between the City Government and the Batam Concession Agency such as HPL (Land Management Rights), taxation, licensing, management of state vital assets, tourism and staffing; The efforts of the Central Government in dealing with this problem is to issue Government Regulation Number 62 of 2019 which states that the Mayor of Batam becomes the ex-officio Head of BP Batam with the aim of eliminating disputes over authority that have occurred, but in its journey there are still authorities which are in principle the same but still carried out and issued by the Batam City Government and the Batam Concession Agency. The model produced in this study is the TDM Special Autonomy model, namely Totality, Decentralization, and Monetization as a frame of reference in implementing special autonomy.

An empirical evaluation of the causes leading to binding dispute resolution mechanisms in the Quebec construction industry

Construction disputes may arise from various situations and have varied consequences throughout the project life cycle. Whilst previous studies examined the leading causes of disputes, there is still a lack of understanding of the differences between the various disputes in terms of severity, probable implications, and outcomes. Specifically, once disputes reach a stage where they must be resolved through binding dispute resolution methods (DRMs), little research has been conducted to understand the impact of these DRMs on project outcomes. The research presented in this paper sought to establish which causes of disputes lead to binding DRMs. A sequential exploratory research design was adopted. First, interviews were conducted with nine construction experts in Quebec, Canada, to evaluate the potential of linking specific causes of disputes with the escalation to binding DRMs. The second phase involved collecting and analysing data from 94 participants through a survey. The findings revealed that unforeseen changes, lack of communication, ambiguities in contract documents, design errors, and work progress delays were the most commonly associated causes of reaching binding DRMs. The paper concluded that alternative approaches such as relational contracts, team integration, and innovative technology and communication tools should be considered to be used as preventative measures.

THE COMMISSION ON LABOR DISPUTES FUNCTIONING: CHALLENGES AND PROSPECTS

The article highlights the research issues of the legal status of the commission on labor disputes in terms of the current legislation of Ukraine. The author provides a general description of the commission on labor disputes, its features and functions, investigates the range of issues to be considered by such a commission, and describes the procedure for their consideration. Based on the general characteristics of the legal status of the commission on labor disputes, the author analyzes the challenges facing the commission in modern conditions. The main problems of the commission on labor disputes functioning include: the imperfection of the legal status of it, in particular, the powers of the commission on labor disputes; lack of a parity approach to the formation of the commission on labor disputes, taking into account both the interests of employees and the employer; the imperfection of the procedure for consideration of labor disputes; lack of a clearly defined procedure for appealing the decision of the commission on labor disputes and the liability for failure to establish a commission on labor disputes. Prospects for the commission on labor disputes further functioning as a pre-trial method of protection of labor rights of employees are suggested. The author substantiates the ways to improve the legislation governing the legal status and functioning of the commission on labor disputes. The main directions of improving this commission functioning are: increasing the efficiency of the commission activity, taking into account the interests of employees and employers; development of the commission on labor disputes as a pre-trial body, which must be formed on a parity basis, granting employees and the employer equal participation in resolving labor disputes; determination of the requirements for the commission members (level of education, work experience, specialization, etc.); introduction of a unified system in terms of which the commission on labor disputes could make legal decisions; defining liability for failure to create a commission on labor disputes. The author concludes that if the current legislation of Ukraine is reformed in part of the legal status and functions of the commissions on labor disputes, their activities will become more efficient in modern conditions, and this will promote resolving individual labor disputes and protecting labor rights more effectively.

Preferences for traditional and formal sector justice institutions to address land disputes in rural Mali

Abstract Access to justice is an important issue for people around the world. In many African countries, citizens most typically access justice through customary, community-level institutions. States and international actors, however, are attempting to extend the reach of the formal justice sector in many countries, under the logic that such institutions may provide more equitable access. In Mali, disputes requiring access to justice are common but use of the formal justice system is rare. We conduct a survey experiment among a sample of rural Malians to explore how people think about formal versus customary justice institutions in the context of a land dispute in terms of their responsiveness, fairness, and costliness. In general and in line with responses to descriptive questions, the evidence shows that the group of Malians in our study think that customary institutions, as compared to the formal court system, will be quicker, fairer, and less likely to require payment for the resolution of a land dispute. We find that these perceptions hold among individuals who report having used the formal justice system, who would consider using the formal justice system in the future, and who are most likely to be marginalized from customary justice institutions. Legal reform advocates need to consider these strong preferences for customary justice institutions when thinking about plausible reforms.

ЭВОЛЮЦИЯ МЕХАНИЗМА ИСПОЛНЕНИЯ АЛЬТЕРНАТИВНЫХ НАКАЗАНИЙ В МЕЖДУНАРОДНЫХ СТАНДАРТАХ XXI ВЕКА

The article analyzes the provisions of international standards, namely the Recommendation of the Committee of Ministers on the Council of Europe Probation Rules of 2010 and the European Rules on Community Sanctions and Measures of 2017. The author examines the problems of differentiation and individualization of sentences and analyzes the provisions of international standards on nondiscrimination in the implementation of sanctions. Many factors of non-discrimination that are new to international standards (physical disabilities, ethnic origin, sexual orientation) can cause disputes in terms of the applicability of alternative sentences. Discussing the offender’s “consent” and the prospects for its use, taking into account the right of such an offender to appeal against the decisions and actions of probation officers, the author focuses on the activities of the implementation bodies, including work with victims, prevention of relapse, restorative justice, which is preferred nowadays in the foreign studies, and work with the convict’s family to develop a classification of powers depending on the action and scope of assistance to the offender. Having analyzed the positive and negative legal consequences of the convict’s non-fulfillment or improper fulfillment of the duties or conditions imposed by the competent authority, the author argues that the regulation of a conflict is possible in three ways: by sorting it out urgently at one’s own discretion, through administrative proceedings and in court, with the choice depending on the type of violation. The key aspect of alternative sentences is the effectiveness of their implementation. The article provides a list of such criteria, of which the relapse rate is considered an important one, and discusses the main problems of the “community” sanctions and measures faced by the implementation bodies. It is stated that the development of international standards of alternative sanctions has elaborated the procedure for their implementation, both by complementing the previously existing provisions and by including new ones.

Judicial doctrine of legal consequences in tax disputes

The article considers the analysis of the role of judicial doctrine of legal consequences in tax disputes. Building the rule of law and creating a qualitatively new society in Ukraine has become a task, the formation and implementation of which directly depend on the subjects of power and their coordinated bilateral dialogue with the people as a source of power. At one of these stages of legal development, the Tax Code of Ukraine was adopted, which created the preconditions for the formation of new views of lawyers and judges on the content and form of judicial activity and the use of doctrinal approaches to justice, respectively, and the process of improving legislation, including tax , the components of which must be in accordance with the constitutional principles of building such a state governed by the rule of law, has become continuous and has reached a significant level of transparency. In conclusion, the author notes that in view of our position on the doctrine of legal effect in tax disputes, as a mandatory component of legal regulation or appeal of actions, decisions or inaction of regulatory authorities and their officials, we propose steps out of the "vicious circle" by development of mechanisms for out-of-court settlement of tax disputes in terms of appealing the inclusion of taxpayers in the list of risky, and settlement of tax disputes in general. Undoubtedly, the improvement of legislative regulation on the above issues will increase the quality and efficiency of the mechanism, will protect the rights and legitimate interests of the subjects (participants) in the field of tax relations.

On the question of the political and legal views of the Slavophiles

The article is devoted to the analysis of the political and legal views of the Slavophiles. The question of the inconsistency of their views is raised. The ideological basis of their polemics with Westernizers is revealed. It is concluded that this was an important dispute in terms of determining the vector of Russia’s future development.

Kulturowe aspekty sporu wokół form upamiętnienia KL Plaszow w Krakowie

Cultural Aspects of the Dispute Regarding Forms of Commemoration of KL Plaszow in KrakowThe “Museum – Memorial site KL Plaszow” has been the subject of dispute between the authorities of Krakow and residents of the district since 2013. The conflict concerns the management of land on which the former concentration camp once stretched. Parties to the dispute have different concepts on how to commemorate the site. Differences in their views relate to: a/ forms and scope of area fencing, b/ nature protection, c/ permitted activities and specification of functions of individual parts of the former camp, d/ the positioning of the participants of the conflict, e/ creation of historical narration, f/ economic dimension of the Museum – Memorial site KL Plaszow. The article focuses on analyzing narration among individual parties and presenting the dispute in terms of R. Dahrendorf and L. A. Coser’s social conflict.

Space, Symbols, and Speech in Gurpreet Kaur Bhatti’sBehztiand Its Reception

In December 2004, the staging of Gurpreet Kaur Bhatti’s play Behzti at the Birmingham Repertory Theatre triggered protests by some members of the Sikh community who considered it offensive. By unearthing and exploring tensions in the play’s representation of a Sikh community, this article sheds light on some of the tensions in multicultural Britain in order to complicate and challenge an interpretation of the dispute in terms of a reductive binary of creative freedom versus religious censure and censorship. While, for the liberal secularist critic and proponent of free expression, the explosion of taboos is vital to an expansion of freedom, a hard-line adoption of this position that fails to account for the material specificities of a religious response to a creative work, including the demography of the protestors, can result in a curtailment of the freedom of a religious minority. Reading the play in dialogue with the controversy it generated, this article seeks to ground the outbreak of religious minority offence in its local material conditions and, by doing so, to underline the unequal access to social, cultural, and spatial capital that shaped the controversy. It focuses in particular on religious symbols, space, and speech, exploring how they figure in both the literary and social texts.

Constitutional Justice in Russia: History and Modern Times

The article examines the process of emergence, formation and development of the constitutional justice institution in Russia. It carries out an analysis of organization and activities of the USSR Constitutional Control Committee, the RSFSR Constitutional Court and the Constitutional Court of the Russian Federation. The authors draw a conclusion of the need of conducting constitutional and legal reforms in Russia, introducing amendments and additions to the Constitution of the Russian Federation. In order to increase efficiency of the constitutional jurisdiction, improving the organization and activity of the Constitutional Court of the Russian Federation, the General Prosecutors Office of the Russian Federation, the Investigation Committee of the Russian Federation, the Executive Office of the Human Rights Commissioner in the Russian Federation, the authors offer proposals of introducing amendments and additions to Articles 104, 125, 129 of the Constitution of the Russian Federation and the Federal Constitutional Law of 21.07.1994 № 1-ФКЗ «On Constitutional Court of the Russian Federation» in terms of authorizing the above-mentioned office-holders with the right of legislative initiative and making inquiries to the Constitutional Court of the Russian Federation. In particular, on issues of constitutionality of the laws, normative legal acts of the supreme bodies of the governmental power and office-holders of the Russian Federation and the entities of the Russian Federation; on solvation of disputes in terms of competence between the supreme bodies of the governmental power and office-holders of the Russian Federation and the entities of the Russian Federation; on violence of citizens constitutional rights. The authors also offer to expand the Article 129 of the Constitution of the Russian Federation up to a separate chapter of the Constitution in which to establish the place in the system of the governmental power the designation, system, structure, principles of organization and activity, the authorities of the prosecutors office bodies, including in the sphere of constitutional jurisdiction.

The proper role of policy in private law adjudication

The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and must resolve disputes in terms of community welfare or socio-economic considerations, more recent formalist, corrective justice-based accounts of the private law simply have no room for any policy or instrumental considerations; the private law is concerned only with the balance of justice between the parties to the dispute. To a large extent, the opposing views rest on deeper philosophical premises about the proper role of law and of the courts in society and have arisen in opposition to each other. The opposing camps thus tend to talk past one another in restating their respective views. In seeking to contribute to, and hopefully advance, this debate, we defend the thesis that direct recourse to considerations of the social, moral, or economic impact on society of a particular rule or ruling, as distinct from the policy of a legal rule or policy as the deeper values of society, is inconsistent with the fundamental characteristics and methodology of the private law and that this is not contradicted by the necessary role of final appellate courts in reformulating the law or by the inherently political and instrumental underpinnings of statutory private law.

Biological assessments of multifunctional hydrogel-decorated implantable neural cuff electrode for clinical neurology application

The implantable cuff electrode is an effective neuroprosthetic device in current nerve tissue engineering. However, biocompatibility and stability are still a serious dispute in terms of in vivo function and continuous monitoring. In this regard, assessing the host’s biological response to biomaterials is one of the key factors of chronic implantation. In this article, we analyzed the peripheral nerve specific-biological responses to the application of multi-functional hydrogel-coated electrodes. The surface of the cuff electrode was modified using a multifunctional hydrogel composed of PEG hydrogel, cyclosporin A(CsA)-microsphere(MS) and electrodeposited PEDOT:PSS. Through our approach, we have found that the multifunctional hydrogel coatings improve the neural electrode function, such as peak-to-peak amplitude increase. Additionally, the multifunctional hydrogel coated electrodes exhibited improved biocompatibility, such as reduced apoptotic properties and increased axonal myelination. Furthermore, 12 genes (BDNF, Gfra1, IL-6, Sox 10, S100B, P75NTR, GAP43, MBP, MPZ, NrCAM, NE-FL, CB1) were upregulated at 5 weeks post-implant. Finally, double immunofluorescence revealed the effect of endocannabinoid system on neuroprotective properties and tissue remodeling of peripheral nerves during cuff electrode implantation. These results clearly confirmed that multifunctional hydrogel coatings could improve electrode function and biocompatibility by enhancing neuroprotective properties, which may provide a valuable paradigm for clinical neurology application.

The Interpretation to be accorded to the Term "Benefits" in Section 186(2)(A) of the LRA Continues: Apollo Tyres South Africa (PTY) LIMITED v CCMA (DA1/11) [2013] ZALAC 3

The interpretation to be accorded to the term benefits in section 186(2)(a) of the Labour Relations Act 66 of 1995 (the "LRA") has come before the Courts on several occasions. In terms of section 186(2)(a) of the LRA any unfair act or omission by an employer relating to the provision of benefits to an employee falls within the ambit of an unfair labour practice. In Schoeman v Samsung Electronics SA (Pty) Ltd[1] the Labour Court (the "LC") held that the term benefit could not be interpreted to include remuneration. It stated that a benefit is something extra from remuneration. In Gaylard v Telkom South Africa Ltd[2] the LC endorsed the decision in Samsung and held that if benefits were to be interpreted to include remuneration then this would curtail strike action with regard to issues of remuneration. In Hospersa v Northern Cape Provincial Administration[3] the issue regarding the interpretation of the term benefits did not relate to whether or not it included remuneration but rather to whether it included a hope to create new benefits which were non-existent. The Labour Appeal Court (the "LAC") held that the term benefits refers only to benefits which exist ex contractu or ex lege but does not include a hope to create new benefits. The LAC adopted this approach in order to maintain the separation between a dispute of interest and one of mutual interest, the latter being subject to arbitration whilst the former is subject to the collective bargaining process (strike action).
 
 In Protekon (Pty) Ltd v CCMA[4] the LC disagreed with the reasoning in Samsung and held that the term remuneration as defined in section 213 of the LRA is wide enough to include payment to employees, which may be described as benefits. The LC remarked that the statement in Samsung to the effect that a benefit is something extra from remuneration goes too far. It further remarked that the concern that the right to strike would be curtailed if remuneration were to fall within the ambit of benefits need not persist. It based this statement on the reasoning that if the issue in dispute concerns a demand by employees that certain benefits be granted then this is a matter for the collective bargaining process (strike action) but where the issue in dispute concerns the fairness of the employer’s conduct then this is subject to arbitration.[5]
 
 It is then no surprise that the issue regarding the interpretation of the term benefits once again came before the LAC in Apollo Tyres South Africa (Pty) Limited v CCMA & others.[6] The LAC was tasked with deciding if the term could be interpreted to include a benefit which is to be granted subject to the discretion of the employer upon application by the employee. In deciding this, the LAC overturned the decisions in Samsung and Hospersa and opted to follow the decision in Protekon.
 
 Apollo is worthy of note as it is the latest contribution from the LAC regarding the interpretation of the term benefits and it is of binding force for the Commission for Conciliation Mediation and Arbitration and Labour Courts in terms of the principle of stare decisis. The purpose of this note is threefold. Firstly, the facts, arguments and judgment in Apolloare stated briefly. Secondly, the judgment is critically analysed and commented upon. Thirdly, the note concludes by commenting on the way forward for benefit disputes in terms of section 186(2)(a) of the LRA.
 
 
 
 

Determinants of micro and small enterprises growth in Kenya

PurposeThe purpose of this paper is to investigate the effects of investment climate and firm-specific variables on the growth of micro and small enterprises (MSEs) in Kenya.Design/methodology/approachThe paper utilized a cross-section survey data of 2,536 MSEs in Kenya. Using the sales growth as the dependent variable, the paper tests the hypotheses that investment climate variables – entrepreneur perception of fairness and affordability of the courts in dealing with commercial disputes, access to formal credit, connections to utilities, crime incidences; and firm-specific resources affect MSE growth.FindingsPositive entrepreneur perception of the fairness and affordability of the courts, access to formal credit, connections to utilities, lower incidences of crime, entrepreneur education and experience positively affect MSE growth.Research limitations/implicationsAlthough the context of the study is Kenya, the study has relevance to other developing countries especially Sub-Saharan Africa due to institutional similarities. The paper, however, uses cross-sectional data, which unlike panel data, do not allow for establishing dynamic relationships. This could be a potential area for further research.Originality/valueThe paper is among the first to establish effects of entrepreneur perception on MSE growth with regards the court system in dealing with business disputes in terms of fairness, timeliness, affordability and enforcement. The paper also extends limited extant research on MSE growth constraints with regards to incidences of insecurity, access to bank credit, connections to utilities and internal resources.

Religious Ministers—Working for God or Working for the Church? A Reflection on Universal Church of the Kingdom of God v Myeni and Others

For any party, including a religious minister, a contract of employment is necessary for purposes of establishing an employment relationship in order to be subject to Labour legislation. If no such employment relationship exists, the court will have no jurisdiction to entertain a dispute in terms of Labour law. The right to freedom of religion, as contained in the South African Constitution, allows religious organizations and churches to give meaning to and to define the various positions in the church, including the position of minister according to the tenets of their own religious. The case of Universal Church of the Kingdom of God1 and different views within some of the mainline church denominations in South Africa indicate that there seems to be no general rule as to whether a minister of religion is an employee of the church or not. Different denominations have different teachings and ideologies. Each individual case will therefore be judged on its own merits and facts. The courts are accordingly required to be sensitive to the sui generis nature of churches and should not impose specific legal or labour relationships onto churches if this would conflict with churches’ own religious views.

Sharing Water from Transboundary Rivers: Limits on State Power

Disputes between States of Australia over the sharing of the waters of rivers that flow through or form the boundary between two or more States (‘transboundary rivers’) have frequently been framed in terms of the ‘rights’ of the States. This article seeks to reframe the resolution of these disputes in terms of limits on State legislative and executive power. After reframing the problem in this way, the article first examines the scope of State legislative and executive power and its extraterritorial effect with respect to the regulation of transboundary rivers. Secondly, the article considers inconsistencies between the laws and regulations of two States with respect to transboundary rivers. Finally, constitutional implications and limits on State power are examined, with particular focus on whether there may be scope for the extension of the Melbourne Corporation principle to assist in the resolution of some transboundary river disputes.

Lessons learned from Ontario wind energy disputes

Issues concerning the social acceptance of wind energy are major challenges for policy-makers, communities and wind developers. They also impact the legitimacy of societal decisions to pursue wind energy. Here we set out to identify and assess the factors that lead to wind energy disputes in Ontario, Canada, a region of the world that has experienced a rapid increase in the development of wind energy. Based on our expertise as a group comprising social scientists, a community representative and a wind industry advocate engaged in the Ontario wind energy situation, we explore and suggest recommendations based on four key factors: socially mediated health concerns, the distribution of financial benefits, lack of meaningful engagement and failure to treat landscape concerns seriously. Ontario's recent change from a feed-in-tariff-based renewable electricity procurement process to a competitive bid process, albeit with more attention to community engagement, will only partially address these concerns. Ontario, Canada, has seen a number of policy measures introduced since 2009 to increase wind energy production. This Perspective explores the impacts and implications of those policies on wind energy disputes in terms of health, financial benefit, community engagement and the landscape.