Dispute Resolution Institutions Research Articles

Dispute Resolution in China

Chinese dispute resolution procedures, especially mediation, have long been perhaps the single feature of the Chinese legal system most extensively studied in the West. In part, this is because the Chinese government has permitted the flow abroad of a great deal of informa- tion about dispute resolution institutions other than courts. In the United States in particular, interest in Chinese methods has grown along with the interest in alternative dispute resolution (ADR) in general Even the former Chief Justice of the United States Supreme Court, Warren Burger, has expressed his admiration of Chinese mediation institutions. Just as most of the Western studies on Chinese dispute resolution institutions have concentrated on mediation, so have they also tended to accept that the Chinese procedure translated as “mediation” (tiaojie) is roughly comparable to what we understand by the English term: that is, a procedure whereby a third party attempts to bring disputing parties to a voluntary settlement of their dispute. Both Chinese and Western commentators are usually aware of evidence that mediators often pressure or even coerce parties to accept a suggested settlement, but this phenomenon is seen as aberrational and generally deplorable. The purpose of this article is to suggest that this understanding of Chinese mediation is incomplete. The picture usually painted of mediation is far from wrong – the idea of mediation as the English term is commonly understood is an important strain in Chinese theory and practice, and the principle of voluntariness is constantly stressed both in academic commentary and in legislation. But that strain is only one strain, and it coexists with other strains that pull mediation as practiced in other, more coercive directions. Thus, the standard picture of mediation needs to be enriched by a recognition that some of its elements previously thought aberrational, such as coercion, may in fact be a vital part of a different, competing logic operating within Chinese mediation institutions. Thus, where this article uses “mediation” and cognate terms in reference to Chinese institutions and practices, they should be understood simply as rough-and-ready translations of tiaojie. Whether and to what extent tiaojie is “really” mediation is one of the questions the article aims to explore.

Make an Honorary Board of Election Organizers (DKPP) as a Special Election Justice

General elections (elections) in Indonesia have their own dynamics. Starting from the institutional organizers to the dispute resolution institutions of election results. This can not be separated from every moment of the election, both central and regional (pilkada), which always presents various kinds of claims because of the emergence of fraud and election violations both intentionally and because of mistakes. So far, the official electoral dispute resolution institutions concerning election crimes are in the general court under the Supreme Court. If it concerns the election results in the Constitutional Court, if it concerns the decision of the election organizers in the State Administrative Court. And if it concerns the ethics of the election organizers on the election executive board (DKPP). While the Bawaslu itself according to Law No.7 of 2017 concerning elections resolves disputes over electoral violations outside the criminal aspect. This has caused the ineffectiveness of the electoral court.This study aims to identify, understand and analyze legal certainty and justice in elections, especially DKPP as a special election court. So that the principle of justice in elections is obtained by the public. The research is a normative study using several approaches, namely legislation approach, case approach, and comparative approach. The results of this review revealed that efforts to realize special election justice became important. There is still debate between the choice of submitting a new institution or turning an existing institution into an election justice institution. Likewise, between making the ad hoc or permanent electoral institutions under the Supreme Court still in the study stage. Then it is necessary to redesign the institutions that have the authority to settle the election results and regional elections that must be carried out without creating a new institution but utilizing the existing EMB. Keywords : Elections, Special Election Courts, DKPP. DOI : 10.7176/JLPG/83-10 Publication date :March 31 st 2019

싱가포르의 분쟁해결문화와 ADR제도

Singapore has witnessed rapid economic growths for a couple of decades due to the inward foreign direct investment. To accomplish this purpose, Singapore tries to transform a small island into the international business hub in East Asia. Concomitantly, Singapore government implements strategy to construct this country as the international dispute resolution hub during last couple of decades. In line with this strategy, Singapore has established Singaporian dispute resolution system, such as Singapore court annexed mediation system, Community Resolution Center, Singapore Mediation Center(SMC), Singapore International Mediation Center(SMIC), Singapore International Mediation Institute(SIMI), Singapore International Arbitration Centre(SIAC), and Singapore International Commercial Court(SICC). Furthermore, Singapore provides an unique Arb-Med-Arb service to disputants. The spectrum of dispute resolution institutions indicates that Singapore is expected to implement a vision of multi-door court house in Singapore.

Compelling Parties to Mediate Investor-State Disputes: No Pressure, No Diamonds?

There was nothing preordained about arbitration becoming shorthand for investor-state dispute settlement. The ICSID system was built on the assumption that disputing parties would choose conciliation to settle their disputes. Those expectations went unrealized as arbitration rose to prominence, and since that time institutions, parties, and academics have observed that facilitated negotiation could play a greater role in resolving investor-state disputes. A number of domestic court systems have made mediation part of the fabric of dispute resolution through incentives and compulsions to mediate. Drawing on this experience, this manuscript considers how obstacles to the uptake of investor-state mediation might be overcome through “internal” measures in treaty practice and “external” measures by arbitrators and dispute-resolution institutions. The timing to adopt such measures is opportune. Mediation provisions are increasingly introduced into investment treaties, investor-state mediator trainings are spreading, the Singapore Convention is on the horizon, and recent pronouncements by the IBA and UNCITRAL encourage the use of mediation in place of arbitration to resolve investor-state disputes. Against this backdrop, the manuscript concludes with a package of proposed measures, engaging various stakeholders, that could be adopted to encourage the greater use of mediation and contribute to shifting a paradigm that has historically placed arbitration at the center of the investor-state dispute settlement system.

Sharia Arbitration as an Alternative Settlement of Sharia Banking Disputes

The enactment of Law Number 10 of 1998 concerning Amendments to Law Number 7 of 1992 concerning Banking, became an explicit formal juridical basis for the implementation of the Islamic banking system in Indonesia. These developments should be accompanied by anticipatory steps regarding the problem of settling the dispute. Law Number 30 of 1999 concerning Arbitration and APS (Alternative Dispute Settlement) responds to existing deficiencies by preparing dispute resolution institutions through arbitration. The type of arbitration authorized to settle Islamic banking in Indonesia is Sharia Arbitration so that Sharia Arbitration is the main choice for Sharia Banking business actors. This article will discuss the authority and effectiveness of Sharia Arbitration decisions in resolving Islamic banking disputes in Indonesia. The method used is normative juridical. The study was conducted with 2 (two) stages, namely: library research (library research) and field research (field research). Data collection is done by document study and interview. Data Analysis Method used is descriptive analytical with qualitative normative juridical approach. The results of the study concluded that Sharia Arbitration competencies can resolve sharia banking disputes which are part of the Islamic economy coupled with disputes which according to the law can be held peace.

Dispute Resolution Culture and Institution of Laos in the Perspective of ADR Styles

Dispute Resolution Culture and Institution of Laos in the Perspective of ADR Styles

THE URGENCY OF REVOKING THE PROVISIONS OF THE CONSIGNMENT INSTITUTION AND THE CONSTRUCTION OF ITS REPLACEMENT IDEAL IN LAND ACQUISITION FOR DEVELOPMENT IN THE PUBLIC INTEREST

Consignment is normatively against the principle of land acquisition which states that it’s not allowed to obtain land by any form of coercion by anyone to the right holder to hand the land and or receive compensation they don’t approve. The problem was how to the ideal construction of regulation of consignment which provides justice for public welfare. The research method used is a type of qualitative, the research paradigm is constructivism, the approach used was socio legal study which is a study which reviews law as a social symptom which can be observed in experience as behavioral pattern in the forms of social institutions. The research results were; Consignment is a form of abuse and act against law (onrechtsmatigheids overdaad) done by the government and land procurement committee officials. If this continues in land procurement, it will cause problems which end in conflicts and lengthy disputes, to reconstruct consignment institutions, it’s urgent to (1) revoke article on consignment as the basis of its implementation through legislative review, (2) revitalize land dispute resolution institution through mediation, (3) publish blue print to monitor the government for the success of developments performed fairly.Keywords: Consignment and State Control Right

Introduction to the symposium on the empirics of judicial institutions

AbstractThe article provides an overview on the emergence of dispute resolution institutions in society and market, their pivotal role and their impact on the human activities. It introduces then recent researches conducted by a pool of scholars in order to advance the understanding of modern judicial institutions which represent the aims of this journal issue.

PERAN PENGADILAN NEGERI INDONESIA DALAM PENYELESAIAN SENGKETA TRANSAKSI ELEKTRONIK INTERNASIONAL

Electronic transactions or E-commerce are buying and selling transactions carried out through the internet. As a result of over the internet, the nature of e-commerce can be done without knowing the borders. When a default or fraud occurs in e-commerce conducted by one of the parties who are abroad, it must pay attention to the principle of International Private Law related to the Court forum, Arbitration, or other dispute resolution institutions. That means that it is necessary to pay attention to the basic arrangements for dispute resolution of international business transactions that have been regulated in Indonesia and the authority of the Indonesian District Court in resolving international electronic transaction disputes. In the juridical perspective as the basis for solving electronic transaction cases to be legal strengthening takes a sense of justice so that it can be seen that the basis of international e-commerce arrangements in accordance with Article 18 Paragraph (4) of the ITE Law. District Courts has a role to be the main and complementary institution in dispute resolution international electronic transactions.

TOWARDS AN EFFECTIVE KENYAN LABOUR DISPUTE RESOLUTION SYSTEM: A COMPARISON WITH THE SOUTH AFRICAN LABOUR DISPUTE RESOLUTION SYSTEM

There have been notable concerns in the current dual dispute resolution system in Kenya. The problems include protracted referral timeframes for dismissal disputes, non-regulation of maximum timeframes for the agreed extension after 30 days conciliation period has lapsed, the absence of statutory timeframes for appointing a conciliator/ commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government through the Ministry of Labour. There is still no independent statutory dispute resolution institution as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increase in strikes and lockouts.This article examines the effectiveness of the Kenyan labour dispute resolution system. The article evaluates the provisions of international labour standards relevant to labour dispute resolution. The article illuminates and describes the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. A comparative approach with South Africa is adopted to see how independent institutions, such as the Commission for Conciliation, Mediation and Arbitration, Bargaining Councils and specialised Labour Courts can lead to effective dispute resolution. In view of that, a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study are made. Systematically, the article provides suggestions and possible solutions for a better institutional framework and processes to address them.

Legal Implications of the Establishment of Alternative Institution of Dispute Resolution of Indonesian Banking (LAPSPI) on Sharia Banking Dispute Settlement in Indonesia

Sharia banking is specifically regulated by Law No. 21 on 2008 of Sharia Banking, the provision of Article 55 of the law provides that the resolution of sharia banking disputes shall be conducted by the courts within the scope of religious courts, but does not rule out the existence of other forum authority as agreed by the parties. At the end of 2015, an Alternative Institution of Dispute Resolution of Indonesian Banking (LAPSPI) has been established and registered as a follow-up to the Financial Services Authority Regulation no. 1 / POJK, 07/2014 About the Alternative Dispute Resolution Institution in the Financial Services Sector. It is interesting to be reviewed what the legal implication of LAPSPI's establishment on dispute resolution of sharia banking in Indonesia is. This research was conducted by applying normative juridical approach method with analytical description research specification. Legal implications of LAPSI's establishment are requiring sharia banks to make LAPSPI as the only space and organization recognized in sharia banking external dispute resolution based on LAPSPI article of the association. Keywords: Dispute Settlement, LAPSPI, Sharia Banking.

DISCIPLINARY PROCESSES FOR SOUTH AFRICAN MAGISTRATES: REFLECTIONS ON THE MAGISTRATES ACT 90 OF 1993 AND THE LABOUR RELATIONS ACT 66 OF 1995

An employment relationship creates certain rights and protection for the respective parties concerned. For example, an employee has the right not to be unfairly dismissed or subjected to unfair labour practices in the execution of his or her duties. On the other hand, an employer has the right to lay down rules in order to regulate the conduct required from its employees. The Code of Good Practice recognises this right of the employer: Dismissal , which requires all employers to adopt disciplinary rules that establish the standard of conduct required from employees. If an employee fails to adhere to the required rules or standards, the employer has recourse in the form of discipline. Disciplinary action is usually initiated in response to poor work performance or unwarranted behaviour by workers and is aimed at restraining employees from behaving in a manner that could hamper production and the functioning of the organisation. When an employer exercises the right to discipline, regard must be had to the employee’s right to be treated fairly. It is therefore important that disciplinary procedures should maintain a proper balance between the rights of the respective parties in the disciplining process.The aim of this note is to compare the procedures for disciplining conventional employees in terms of the LRA with the procedures to discipline magistrates in terms of the Magistrates Act. The purpose of the comparison is to evaluate whether the disciplinary regime applicable to magistrates effectively ensures that they are appropriately and timeously disciplined when necessary in order to ensure a well-functioning judiciary. The note will commence with an outline of the legislative and regulatory framework of the respective disciplinary processes. This will be followed by an evaluation of whether the disciplinary regime governing magistrates contributes to a well-functioning judicial system. The note will conclude with recommendations regarding streamlined processes that would provide role players in the judiciary with certainty about the applicable remedies and the appropriate dispute resolution institutions where their disputes may be resolved.

The Public Protector as a Mechanism of Political Accountability: The Extent of its Contribution to the Realisation of the Right to Access Adequate Housing in South Africa

This paper is premised on the concept of political accountability which aims to hold accountable government for its action and or omission. Political accountability encompasses a number of mechanisms such as the judiciary and the ombudsman. Courts have been instrumental in enforcing the realisation of the right to access to adequate housing in South Africa. This paper argues, however, that the judiciary is not the only enforcing avenue because other mechanisms of political accountability may also contribute to the realisation of the right to housing. The paper, therefore, explores the extent of the Public Protector's contribution to the realisation of the right to access to adequate housing. The paper then argues that it is through its functions that the Public Protector exercises its accounting role in the realisation of the right to access to adequate housing. The paper, however, cautions that the Public Protector is not an alternative dispute resolution institution parallel to courts. But that the Public Protector complements the role played by courts by offering another medium through which such right may be realised.

Consumer Dispute Resolution: A Comparative Study between Indonesia and Common Law System Countries

Abstract Since 2001, based on the mandate of Article 49 paragraph (1) of Law no. 8 of 1999 on Consumer Protection, BPSK (Badan Penyelesaian Sengketa Konsumen/Consumer Dispute Resolution Institution) has been established based on Presidential Decree No. 90/2001 on the establishment of BPSK in several cities in Indonesia. In some countries that embrace the Anglo Saxon legal system, consumer dispute cases are resolved by an institution called The Small Claims Court (SCC) and The Small Claims Tribunal (SCT). The difference in settlement through three institutions is that BPSK is a formal institution which resolves small disputes with low-cost, but does not limit the size of the lawsuit filed by consumers. On the other hand, SCT provides clear restrictions on claims that can be filed by consumers. At the completion done by SCC, the assemblies that resolved the case come from active and retired judges, while in BPSK the assemblies come from government, businessman and consumer with different backgrounds.

Reforming the South African Social Security Adjudication System: Innovative Experiences from South African Non-Social Security Jurisdictions

There is currently no uniform social security dispute resolution system in South Africa due to the piecemeal fashion in which schemes were established or protection against individual risks regulated. The result is that each statute provides for its own dispute resolution institution(s) and processes. There are also various gaps and challenges in the current social security dispute resolution systems, some of these relating to the uncoordinated and fragmented nature of the system; inaccessibility of some social security institutions; inappropriateness of some current appeal institutions; the lack of a systematic approach in establishing appeal institutions; a limited scope of jurisdiction and powers of adjudication institutions; inconsistencies in review and/or appeal provisions in various laws; an unavailability of alternative dispute resolution procedures; and an absence of institutional independence of adjudication institutions or forums. The system is therefore in need of reform. In developing an appropriate system, much can be learned from innovative experiences in comparative South African non-social security jurisdictions on the establishment of effective and efficient dispute resolution frameworks. Dispute resolution systems in the labour relations, business competition regulation and consumer protection jurisdictions have been established to realise the constitutional rights of their users (especially the rights of access to justice, to a fair trial and to just administrative action). They thus provide a benchmark for the development of the South African social security dispute resolution system.

The Balance between Investor Protection and the Right to Regulate in Investment Treaties: A Scoping Paper

This scoping paper examines the balance between investor protection and the right to regulate in investment treaties and investment treaty policy. It notes the growing trend to analyse the impact of particular treaty rules rather than treaties as a whole. It also points to the importance of comparative analysis of balancing under other regimes. It then outlines issues in four areas: (i) the types of regulation potentially at issue in investment treaty claims by covered investors; (ii) the types and levels of investor protection; (iii) the degree of impact of treaties on regulation; and (iv) the processes and institutions that may be involved in balancing interests in investor protection and the right to regulate. While the paper recognises that dispute resolution institutions have a significant impact on the balance and the right to regulate, it focuses primarily on substantive issues in light of other ongoing work on dispute settlement.

Kecenderungan Masyarakat Memilih Lembaga Penyelesaian Sengketa Ekonomi Syariah.

The People’s Choice in The Completion of Sharia Economic Dispute. Background research is the fact that lack of sharia economic cases filed and decided by the institution of litigation and non-litigation. This research is exploratory research that uses a qualitative approach to explore facts sharia law in an economic context. Data in the form of a questionnaire/questionnaire is processed only to describe the percentage of sharia economic community propensity choose dispute resolution institutions. This description is preliminary data that drove researchers to explore the points required questions in the interview. Mismatch between quantitative data processed by the facts on the ground shows that people choose a wide selection of sharia economy in resolving disputes.DOI: 10.15408/ajis.v16i2.4457

Formal law and customary change: A lab-in-field experiment in Ethiopia

Do customary courts strategically adapt arbitration outcomes if they face increased competition by the formal law? Through a lab-in-field experiment with villagers and real customary judges in rural Ethiopia, we show that post-arbitration payouts to agents disfavored by the customary system are downwardly biased. Introducing a costly formal law reduces these biases and draws the decisions of customary judges significantly closer to the law. At the same time agents advantaged by the law do not exploit their increased bargaining power. Instead, they make offers that are less advantageous to themselves and, in equilibrium, only a fraction of them make direct use of the formal law. Our results suggest that local customary dispute resolution institutions may have a role to play in shifting preexisting customs toward a desired outcome. In areas where formal legal institutions have limited outreach, the effects of increased competition between formal law and customary legal institutions may rise from changes in the latter, rather than from plaintiffs seeking justice under the rule of law.

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

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

ARBITRASE SEBAGAI LEMBAGA PENYELESAIAN SENGKETA MENURUT UNDANG-UNDANG NO. 30 TAHUN 1999

In case of dispute settlement via the outside court, then offered several alternative dispute resolutions which give the ease with which the process is fast, cheap and resolved as well as possible, one of which uses the process of arbitration. Arbitration is the most interesting option in order to resolve the dispute in accordance with their wishes and needs. So, resolving disputes through arbitration is regulated specifically in Act No. 30/1999 regarding arbitration and alternative dispute resolution. In many civil agreement cases, arbitrate clause widely used as dispute for resolution options. Legal opinion given arbitration institutions are independent, final, and binding. Because of the opinions given will be the part that is inseparable from the agreement staples. Each of the opposite opinion against the opinion of the law means a violation of the Covenant (breach actions of contract-tort). Therefore resistance cannot be made in the form of any remedy. In this paper discusses about the arbitration as dispute resolution institutions according to act No. 30/1999 which include: understanding of arbitration, the arbitral seat as non litigation, pros and cons of arbitration dispute, the kind that become arbitration authority, implementation of the ruling of the arbitration and the strengths of arbitration decision. Kata kunci: Arbitrase, Lembaga Penyelesaian Sengketa, Undang-Undang No. 30 Tahun 1999