Dispute Resolution Mechanisms Research Articles

The enforceability of mediation clauses: A critical analysis of English case law

This article shows that the English case law on the enforceability of mediation clauses presents a number of flaws. First, and most importantly, English courts generally fail to distinguish between the positive and the negative obligations created by such clauses. As a result, they wrongly apply the certainty requirement to the former, rather than the latter, which leads to frequent refusals to enforce mediation clauses in situations where enforcement should be granted. These decisions discourage parties from agreeing to multi-tier dispute resolution clauses providing for preliminary mediation, thus undermining the general policy favouring the use of alternative dispute resolution (ADR) mechanisms. Moreover, judicial discretion in deciding whether to give effect to a valid mediation agreement is unjustified and exercised on the basis of questionable considerations.

Harmonization of Arbitration Laws in some Asian and European Countries

The present paper studies the relationship between domestic and international arbitration laws and the harmonization factor amongst some Asian and European jurisdictions. During the last decades, there has been a significant change and globalization in the world and with the expansion of businesses and trade a better dispute resolution mechanism is required in order to maintain the harmony in international trade. It has become a necessity to balance the domestic arbitration laws with the international ones. This brief paper identifies and comments on some of the areas where differences remain including differences in recognition and enforcement of arbitral awards in various jurisdictions over the public policy defence, and where further examination and research to reach and solve disputes amicably might be useful.

Legal Pollution of Dispute Settlement Results of Regional Head Selection Realizing the Election Justice

The implementation of direct regional head elections in the regions often raises disputes regarding the determination of the results of the vote. Efforts made by candidates who are dissatisfied with this determination are to submit a cancellation to the judicial institution. The update on the system for resolving the election results was carried out by the government to overcome this problem, namely the Government Regulation in Lieu of Law No. 1 of 2014. Problems discussed in this study include: how the dispute resolution mechanism was issued before the regulation, what updates are contained in the regulation how to achieve effective and fair election outcome dispute resolution. This study is a normative legal research that is descriptive in nature using a legal and analytical approach. Based on the results of the study, it can be concluded that the fundamental renewal lies with the institution authorized to handle, namely from the Constitutional Court to the High Court appointed by the Supreme Court. The author recommends that the renewal must be supported by technical regulations to ensure effectiveness and fulfill a sense of justice. Based on this research, the results show that the dynamics of the shifting of dispute resolution authority over the election results are influenced by the decision of the MK opened legally policy and the background of certain events. Namely: the problem of bribery that ensnares the judge, decisions that are considered controversial, case accumulation, and unpreparedness of institutional structure and infrastructure. Regarding the threshold requirements as a condition for receiving a dispute over a dispute over the results of a regional election, it has not yet supported the fulfillment of electoral / election justice. Because it has the potential to ignore aspects of substantive justice, mainly because it does not make the facts of the violations structured, systematic and massive (TSM) as a variable in examining cases. This neglect is not in line with one of the universally adopted principles of law and justice, which states that no one can benefit from irregularities and violations committed by himself and no one may be harmed by irregularities and violations committed by others (nullus / nemo commodum capere potes de injuria sua propria).

ANALISIS YURIDIS PENYELESAIAN SENGKETA KEPALA DESA YANG MENDAPAT SUARA SAMA DI DESA MASBAGIK SELATAN KABUPATEN LOMBOK TIMUR

The purpose of this research is to find out how the dispute resolution mechanism of the election results for the Head of South Masbagik Village, East Lombok Regency is based on the Laws and Regulations. Knowing how the legal considerations in Decision Number: 08 / G / 2018 / PTUN.Mtr and PTUN Surabaya Decision Number: 173 / B / 2018 / PT.TUN.SBY are in accordance with statutory regulations in resolving the same vote dispute. This study the authors use the Normative research method, with an approach method using library legal materials in other words, library research (Library Reaserch). This study the authors used a normative research method, with an approach method using library law materials, in other words, library research (Library Reaserch). The method of collecting legal materials used is documentation study, namely by recording information from legal materials related to dispute resolution mechanisms based on statutory regulations, as well as those obtained from other sources, either expert opinion, research results or journals.

The Role of Alternative Dipute Resolution in Solving Electorate Disputes: A Case Study of Electoral Justice in Kenya

Finding ways to resolve electoral disputes is alternatively finding means to achieving electoral justice. The inception of the Kenyan Constitution and legislations thereafter brought with it a framework for resolving disputes effectively. Articles 47 on fair administrative justice, 48 on access to justice and 87 on electoral disputes and in finality 159(2) provide the basis of alternative dispute resolution (ADR) being inclusive of electoral dispute resolution mechanisms. These ADR mechanisms include mediation, arbitration, negotiation, conciliation and adjudication.

Chieftaincy Act and Succession Disputes Resolution: A Panacea for National Security?

The chieftaincy institution is a revered institution and as such attempts have been made to maintain its sanctity. However, over the years, the institution has been fraught with disputes thereby bringing its image into disrepute. The chieftaincy Act, 759 (2008) was enacted by the parliament of Ghana to regulate the institution. The Act has made provisions for the resolution of disputes that have attended the institution. This article is an attempt to assess the effectiveness of the Act on the dispute resolution mechanisms of the judicial committees of the Houses of Chiefs. Using interview and textual analysis as its main instruments, the article looks at the role of the Judicial Committees of the Houses of Chiefs in dealing with the numerous succession disputes that has bedeviled the institution. The article will assess the methods the Committee uses in handling cases that come before it and how parties to the succession disputes collaborate with the Committee to dispense with the case. The article argues that if the Judicial Committee is well resourced, it will be in a position to help deal with chieftaincy succession disputes expeditiously. This would reduce the incidents of open conflicts resulting in deaths and destructions of properties thereby threatening national security. Keywords: chieftaincy, succession disputes, national security, houses of chiefs, arbitration

The Authority To Resolve Disputes For The Election Of Village Head In The Indonesian Area

The Village Head Dispute Resolution Mechanism should be regulated in detail and clearly in the norms that apply as law, which should also contain provisions regarding the Village Head dispute resolution mechanism, because these provisions are very important, where each region is required to make a Regional Regulation, related to the issue of the settlement of the village head election, which regulates the election of the village head, including providing arrangements for the settlement of village head election disputes. The Regional Regulation is the juridical basis used by the Head of government at the regional level, namely the Regent and Deputy Regent. This research is a nomative law research in which the approach used is the library or statutory approach through a study of the decisions on the results of the dispute over the village picades. The technique of collecting legal materials is carried out by means of library research. The analysis of legal materials is carried out in a qualitative deductive manner so that a conclusion can be drawn according to the needs of what has been studied. What has been researched is the regent's responsibility as a regional head which is carried out in accordance with the Regional Regulation to form an Election Committee, a Sub-District Supervisory Committee, a District Research Committee, and a Dispute Resolution Team formed directly by the East Lombok Regent. The pattern of village head election dispute resolution carried out by the local government is through deliberation with the roles of negotiator, mediator and conciliator.

Research on Dispute Settlement Mechanism of Economic and Trade Cooperation Between China, Mongolia and Russia

The dispute resolution mechanism of economic and trade cooperation between China, Mongolia and Russia is a kind of dispute resolution mechanism specially used to solve the disputes of economic and trade cooperation between China, Mongolia and Russia. It is not only has the practical necessity, but also has the political and legal feasibility. The main problems of the dispute resolution mechanism are that the dispute resolution methods are too scattered, the dispute resolution basis is too old, and the cohesion and effectiveness of the dispute resolution methods are poor. Under the guidance of the concept of "coordinated development, win-win and mutual benefit, fair procedure, inclusiveness and harmony", it is reasonable to build a dispute resolution mechanism of economic and trade cooperation between China, Mongolia and Russia, which covers the way of political diplomacy and judicial characteristics. Specifically, the dispute resolution mechanism needs to establish special dispute resolution institutions, unified applicable rules, diversified dispute resolution procedures and sound supporting systems.

PERLINDUNGAN HUKUM TERHADAP KONSUMEN PENGOBATAN TERAPI BEKAM DI WILAYAH BOGOR

The objectives of this study are: 1) To determine and analyze the legal protection of consumers from traditional medicine with the method of cupping treatment in the Regency and City of Bogor. 2) To find out and analyze the responsibilities of cupping treatment businesses in Bogor Regency and City towards consumers who have suffered losses. The research method used in this study is a normative juridical research that uses a qualitative approach. The results of this study are: 1) Protection of cupping treatment consumers in Bogor Regency and Bogor City, in dispute resolution can be done through a mechanism that has been regulated in the Consumer Protection Law, namely through a dispute resolution mechanism in court or outside the court. 2) The responsibility of the cupping treatment business actors to consumers who are harmed can be accountable for their actions both civil and criminal. This is aimed at increasing the bargaining position of consumers in making transactions with business actors, so that they are not treated arbitrarily because there is a law that regulates it.Keywords: Legal Protection; Consumer; Traditional Treatment.

Developing a Framework for Integrating Arbitration Into Nigeria’s Banking Sector

Given the evolution of the Nigerian market post the 2005 Bank Consolidation Era, and the 2008 Financial Crisis, there have been some calls for arbitrating banking disputes. This call is yet to be totally embraced because of inherent parties’ bias for referring banking disputes to litigation forum. Similarly, the banking sector, in recent years, witnessed an abysmally low volume of Alternative Dispute Resolution (ADR) mechanisms. However, with the development of the E-Payment Arbitration Framework by the Central Bank of Nigeria (CBN), arbitration appears to be getting deserved recognition by the regulator. Also, the various Multi-Door Courthouses can develop a system that can resolve banking disputes using their existing procedural framework while we await holistic statutory provisions on the subject matter.

Prospects for Using the Arbitration for Resolving the Disputes Arising Out of Administrative Contracts

The use of arbitration as an alternative dispute resolution mechanism in the modern legal environment is in- creasing in civil-legal disputes. Although in 2001, the Council of Europe recommended using alternative dispute resolution mechanisms in administrative disputes, up to date, arbitration and other alternative dispute resolution mechanisms have not gained popularity in administrative disputes. Given its nature, arbitration is the closest to the judicial mechanism among the alternative dispute resolution methods. Although the use of arbitration as a dispute resolution mechanism in administrative disputes is not recognized by the legislation of Georgia, considering the types of administrative disputes, it is possible to use arbitration dispute resolution mechanisms in certain categories of administrative disputes. It is important to note that defining an alternative dispute resolution mechanism against the background of the overwhelmed courts and delayed justice and establishing new mechanisms may be successful and promising in the context of a justice rapid response. Accordingly, taking into account the legislation of Georgia, the analysis of practice, and the application of civil standards to administrative contracts, the aim of the study is to consider the possibility of using the arbitration mechanism in disputes arising out of administrative contracts. In this regard, the subject matter of the study is the essence of the administrative contracts and arbitration mechanism, the analysis of Georgian legislation is presented, and the possibility, purpose, and perspective of the use of arbitration for resolving the disputes of administrative contracts are summarized.

THE PHILOSOPHICAL BASIS OF THE COMPETENCE TO ADJUDICATE BANKRUPTCY CASES INVOLVING AN ARBITRATION CLAUSE

This research stems from the conflict of competence between Commercial Court and Arbitration in a bankruptcy case involving an arbitration clause. This occurs when parties make an agreement including arbitration as a mechanism of dispute resolution. Nevertheless, when a dispute occurs, one of the parties file a bankruptcy petition to Commercial Court as contained in Article 303 of the Bankruptcy Law. Meanwhile, according to Article 3 and 11 of the Arbitration Law, agreements containing arbitration clause as a mean of dispute resolution provides absolute competence, which is consistent with the pacta sunt servanda principle outlined by Article 1338 of the Civil Code. This raises the question of whether Article 303 of the Bankruptcy Law is inconsistent with pacta sunt servanda or to the arbitration clause as the agreed mechanism of dispute resolution by the parties, because the substance of legal norms has philosophical basis. This research uses normative juridical approach which examines legal materials through the study of documents. The research show that Commercial Court is an extra ordinary court which settle bankruptcy filed to the court. Therefore, the competence cannot be set aside by arbitration in the sense of its legal position and capacity as extra judicial even though it originates from an agreement containing arbitration clause. The philosophical basis that can be applied in the conflict of law refers to the principles governing legislation, namely lex specialis derogat legi generalis, lex posterior derogat legi priori, and integration principles of Article 303 of the Bankruptcy Law.

Could traditional dispute resolution mechanisms be the solution in post-colonial developing countries – particularly in Africa?

This paper deals with the possible role that traditional dispute resolution mechanisms can play in reducing the burden of too much litigation in post-colonial countries – particularly in Africa. The importance of such mechanisms has been recognized by the United Nations and by the constitutions and laws of many African countries. The paper addresses the issue of the effect a paucity of lawyers in African countries might have on the litigation in such countries. The approach and methods of traditional dispute resolution in Africa are discussed and the question raised whether such traditional dispute resolution mechanisms can be integrated into the Western approach to dispute resolution in order to reduce litigation. The challenges facing such integration are also addressed. The article concludes that traditional methods of dispute resolution are already reducing the burden of too much litigation, but further research using statistical and empirical data should be undertaken to substantiate this.

LOS RETOS A LOS QUE HA DE ENFRENTARSE LA CORTE INTERNACIONAL DE JUSTICIA

En este artículo se identifican algunos de los desafíos a los que ha de enfrentarse la CorteInternacional de Justicia en el septuagésimo quinto aniversario de su sesión inaugural. A lolargo de estos años, la Corte se ha consolidado como un mecanismo eficaz de solución decontroversias internacionales, sin embargo, pasados estos tres cuartos de siglo, ha llegado elmomento de identificar cuales son los aspectos que deberían actualizarse para que continuaramanteniendo su utilidad a lo largo del siglo XXI. La sociedad internacional ha evolucionadomucho desde que la Corte comenzó a funcionar, por lo que considero llegado el momento deplantearse sus fortalezas y debilidades con el propósito de reforzar las primeras y subsanar lassegundas con el único objetivo de adaptar este mecanismo de solución de controversias a losretos que habrá de abordar en el futuro próximo.

Complaints and their Redressal : A Study on the Indian Banking System

With more and more people coming under the gamut of financial inclusion, banking transactions have increased manifold. Banks are also striving hard to introduce innovative deliverables to lure and retain their customers on one hand and to reduce cost and increase profit on the other hand. As the Indian banking sector is trying to match its technical and manpower capabilities to meet new challenges, complaints from customers are bound to increase. This has made customer happiness a major concern in the banking sector. Thus, the grievance redressal mechanism has become an important component of banking operations. Taking note of such a scenario, the Banking Ombudsman Scheme was brought to light by the Reserve Bank of India in the year 1995. This scheme acts as the grievance redressal mechanism at the highest level which is parallel to the Alternate Dispute Resolution Mechanism. An effort was made in this paper to analyze the efficacy of this scheme over the years. Various parameters were studied with the help of trend analysis to conclude the findings. Findings of 10-year data showed that this scheme worked effectively for the urban and metropolitan customers, but is yet to achieve the desired results for rural and semi-urban customers. Among the categories of banks, foreign banks were found to be doing good in keeping their customers satisfied. The analysis also concluded that mainly retail customers have used this scheme to resolve their issues.

Administrative risks challenging the adoption of smart contracts in construction projects

PurposeAs a remedy to usually voluminous, complicated and not easily readable construction contracts, smart contracts can be considered as an effective and alternative solution. However, the construction industry is merely known as a frontrunner for fast adoption of recent technological advancements. Numerous administrative risks challenge construction companies to implement smart contracts. To highlight this issue, this study aims to assess the administrative risks of smart contract adoption in construction projects.Design/methodology/approachA literature survey is conducted to specify administrative risks of smart contracts followed by a pilot study to ensure that the framework is suitable to the research question. The criteria weights are calculated through the fuzzy analytical hierarchy process method, followed by a sensitivity analysis based on degree of fuzziness, which supports the robustness of the developed hierarchy and stability of the results. Then, a focus group discussion (FGD) is performed to discuss the mitigation strategies for the top-level risks in each risk category.FindingsThe final framework consists of 27 sub-criteria, which are categorized under five main criteria, namely, contractual, cultural, managerial, planning and relational. The findings show that (1) regulation change, (2) lack of a driving force, (3) works not accounted in planning, (4) shortcomings of current legal arrangements and (5) lack of dispute resolution mechanism are the top five risks challenging the adoption of smart contracts in construction projects. Risk mitigation strategies based on FGD show that improvements for the semi-automated smart contract drafting are considered more practicable compared to full automation.Originality/valueThe literature is limited in terms of the adoption of smart contracts, while the topic is receiving more attention recently. To support easy prevalence of smart contracts, this study attempts the most challenging aspects of smart contract adoption.

La controversia por el vertedero de residuos en la Cordillera de los Andes. Un estudio de caso acerca de la responsabilidad internacional por daño transfronterizo

El artículo analiza la controversia entre Argentina y Chile, con motivo del descubrimiento de un vertedero de residuos en la Cordillera de los Andes, originado por la actividad de una empresa minera chilena, que arrojaba el material en desuso en el territorio argentino. El conflicto es estudiado a la luz de las reglas en materia de responsabilidad internacional y teniendo en cuenta los mecanismos de solución de disputas a los que recurren los Estados ante un hecho de contaminación transfronteriza.

Dispute Resolution for Islamic Banks in Indonesia

The rapid growth of Islamic banking and finance industry demanded an improvement in term of standards, frameworks, policy, technologies, resources, and guidelines in order to go beyond without compromising the core values of Islam itself. In the context of legal framework of Islamic banking and finance, it is most likely this industry needs to be highly regulated in order to avoid manipulation and abuse by the irresponsible parties. One of the crucial issue in the area of Islamic Banks in Indonesia is regarding about the dispute resolution mechanism for Islamic Banks. Based on Indonesian positive law, there are two alternative dispute resolution mechanisms that can be exercised by parties to settle disputes in cases involving Islamic Financial Institutions (IFIs) namely through litigation or non-litigation. Litigation comes under the jurisdiction of the Religious Court. Researcher in this study are look deeper into the dispute resolution mechanism for Islamic Banks in Indonesia, as well as going through some decided cases. And based on the study done, it was found that alternative dispute resolution mechanism is more effective to resolve Islamic Banks dispute rather than litigation. In the future, researchers may conduct more research to examine deeper about the dispute resolution mechanism for the whole Islamic Economics and Finance in Indonesia. Moreover, researchers need to look at the regulators' and legislators’ perception towards dispute resolution and legal environment.

The Land of Painted Bones: Warfare, Trauma, and History in Papua New Guinea’s Hela Province

ABSTRACT This paper is an analysis of organised armed conflict, as occurs among the Huli speaking population of Papua New Guinea’s Hela Province. I argue that Huli warfare is viewed from a Huli perspective in historical terms, and that Huli wars are fundamentally fought over the control and authority over the historical narrative, and therefore the control and authority over resources into the future. Most importantly warfare is understood as an undesirable and avoidable failure of dispute resolution mechanisms. I also argue against the common view that pre-colonial warfare was conducted according to rules that prevented the more egregious acts that occur today, especially when it comes to the killing of women. Warfare needs to be understood in terms of trauma, and the consequences of its lived experience. Finally, the link between warfare and the presence of extractive industry is in the historical agency of that industry, and persistent and erroneous views about tribal warfare serve to deny that link.

Effectiveness of Shari'ah Economic and Business Dispute Resolution through Arbitration and Alternative Dispute Resolution (ADR)

In this paper, we will discuss a little about the effectiveness of sharia economic and business dispute resolution through Arbitration and alternative dispute resolution (ADR). So that it can be described how the dispute resolution mechanism in a civil relationship between one party and another, of course, sometimes does not work as expected. This problem will be examined using a research method with a qualitative approach, namely a research process and an understanding based on on a methodology that investigates a social phenomenon and human problems. Regarding the dispute resolution process in the economy and business of sharia Arbitration is a method of dispute resolution that can be chosen by parties who have problems or disputes. In the settlement of disputes in the court there is a tiered procedure, in the district court, high level, the Constitutional Court, PK etc., while in arbitration there are stages. Apart from that, if the decisions are different, an appeal is still possible in court if no agreement is reached, however in arbitration it is final and binding (final and binding). Advantages The arbitration procedure is carried out closed, not open to the public (confidential), not too formalistic as is the case in court. The parties may choose a person who is trusted to be the arbitrator. The aim of arbitration and alternative dispute resolution outside the court is the same as through court channels, namely to uphold justice. The only difference is that the court is a State Court, which is general in nature. Arbitration is a commercial business court or commercial court.