Dispute Resolution Process Research Articles

The Constitutionality of Customary Courts in Dispute Resolution for Indigenous Communities in Tana Toraja Regency

This research encapsulates an attempt to thoroughly investigate and analyze the constitutionality of customary justice in the context of dispute resolution among indigenous peoples, with particular emphasis on the ways in which disputes are resolved through customary justice institutions in Tana Toraja Regency. The research method applied was a combination of a normative (doctrinal) legal research approach relating to legal theory and doctrine, and an empirical (non-doctrinal) legal research approach focusing on practical experience and field observations. The findings of this study underscore the importance of considering the political context of law in evaluating the constitutionality of customary justice, given that the system is faced with a range of complex challenges. In practice, the dispute resolution process through customary justice in Tana Toraja Regency is organized by a reconciliatory judge, who is tasked with facilitating the process of deliberation between the disputing parties with the aim of reaching a mutually acceptable agreement or decision. Recommendations from this study highlight the need for legislative efforts to formulate clearer laws and regulations regarding the role and procedures of customary justice in resolving disputes in indigenous communities. There is also a need for local policies that support the role of conciliatory judges in the customary justice system in Tana Toraja. This research not only provides a deeper understanding of customary justice practices, but also provides a foundation for improved policies and better legal practices in the future, which can strengthen the protection of indigenous peoples’ rights and support sustainable and inclusive development.

Suggestions Regarding the WTO Dispute Settlement Mechanism in Strengthening Multilateralism

Amid the outbreak of the US-China trade war from March 22, 2018, to July 6, 2018, the United States government announced trade enforcement actions against China. This was based on an investigation conducted following Section 301 of US Trade Law. Responding to the announcement, the Chinese government retorted with claims of possible countermeasures against the US, citing the Foreign Trade Law of China. At the beginning 74 days of the trade war, the US and China filed three motions for negotiations with the WTO Settlement Body over intellectual property and tariff issues before the US imposed an additional import tariff on China officially. From the start to now, the United States and China have filed eight consultations with the WTO dispute settlement body (DSB). However, no applications have yet provided effective legal support to resolve the trade dispute between these two nations or succeeded to uphold multilateralism. This reflects the weakness of the WTO Settlement Mechanism in upholding multilateralism. With analysis and comparison of the occurrence of the US-China trade war and the eight cases brought by China and the US to the WTO DSB during the trade war easily, two shortcomings of the WTO dispute resolution process in upholding multilateralism and the reasons for them are revealed. Based on this, relevant solutions are proposed.

Assessing the Effectiveness of the Village Court (VC) System in Promoting Access to Justice: A Case Study of Two Selected Villages in Noakhali, Bangladesh

This study aimed to assess the effectiveness of the Village Court (VC) system in promoting access to justice in rural Bangladesh. The formal legal system in Bangladesh is expensive and time-consuming, making it difficult for underprivileged rural people to access justice. The VC system is a combination of formal and informal dispute resolution processes and has been initiated by the government to address the demand for access to justice for rural people. However, several obstacles have hampered the efficacy of the VC system, making it impossible to acquire public satisfaction in the justice process. This case study examines the effectiveness of the village court system in promoting access to justice in two selected villages in Noakhali district, Bangladesh. The study evaluates various factors that impact the success of the village court system, such as policies, procedures, acts, rules, oversight mechanisms, legal awareness, and resources available to Union Parishad officials and community members. The findings suggest that while the village court system is functional in some areas, it heavily relies on government-supported projects and is largely ineffective outside of these areas. The study provides recommendations for improving the effectiveness of the village court system, including necessary amendments to the village court act/rules, proper government monitoring and supervision, improved financial and human resources for the Union Parishad, and greater accountability and competency of all stakeholders. By addressing these issues, the village court system could become a vital tool for promoting access to justice in rural Bangladesh.

ARBITRATION AT MUSLIM RELIGIOUS COMMITTEE COUNCILS IN SOUTHERN THAILAND

This paper analyses the function of arbitration at Patani Muslim Religious Committee Council (PMRCC) and offers mediation mechanisms as an alternative way of solving the matrimonial disputes among the Muslims in the Malay-Muslims majority areas. Conceptually, dispute resolution is being recognized as an effective way in the field of adjudication in Islamic law. Although there have been attempts to implement dispute resolution mechanisms in the Muslim Religious Committee Councils (MRCCs), no attempt so far has been made to upgrade them. To a large extent, dispute resolution has been implemented gradually since the beginning of the establishment of the councils. This paper intends to investigate the current trend and the future direction for the implementation of dispute resolution in PMRCC by exploring the available alternatives to the continued pursuit of the process of dispute resolution in PMRCC while at the same time strengthening the existing structures. Finally, the author will provide some suggestions as to how dispute resolution in PMRCC might operate. The author will also highlight the strength and weaknesses of arbitration under Thai civil law with a view toward a better legal provision for arbitration.

Alternative Dispute Resolution (ADR): A Suitable Broad Based Dispute Resolution Model in Nigeria; Challenges and Prospects.

Purpose: Due to the flaws in the traditional judicial system, the use of Alternative Dispute Resolution (ADR) methods is gaining popularity among scholars and lawyers around the world. Most scholarly articles have examined the inherent advantages of Alternative Dispute Resolution (ADR) techniques over the traditional judicial processes for resolving different types of conflict. Despite the increasing frequency and classification of conflicts in Nigeria, little research has been conducted on the reasons for, and barriers to, disputants' use of alternative dispute resolution (ADR) systems as viable options. Given the complexity of the nature and structure of disputes in Nigeria, this research delves into the factors that push and pull litigants into the use of Alternative Dispute Resolution (ADR).
 Methodology: This study utilized an explanatory research approach to investigate the many distinctive kinds of conflicts and match them with the most relevant ADR procedures. In particular, property disputes, family conflicts, and business disagreements were investigated. 
 Findings: According to the findings, Alternative Dispute resolution (ADR) may lead to a considerable reduction in the amount of time and expense of the dispensation of justice that addresses unfairness in the system of criminal justice administration, ultimately resulting in positive social change.
 Contributions to Theory, Policy and Practice: The study concludes that Alternative Dispute Resolution (ADR) processes have significant potentials for handling the growing number of disputes. However, it is necessary to address their shortcomings as well as facilitate collaboration between the practitioners and the regular courts. It would improve social stability and guarantee satisfaction for the perpetrator, the victim, the community, and society as a whole if this were done. The study recommended, among other things, that the general public and litigants be educated on the inherent advantages of Alternative Dispute Resolution (ADR) in the resolution of conflicts.

The use of technology in dispute resolution; A framework for the study of ODR

During the Covid-19 Pandemic, the term “Online Dispute Resolution” has become a buzzword to indicate dispute resolution procedures that variously employ Information and Communication Technology. Against this backdrop, doubts arise regarding the function and degree of involvement of technology necessary to label certain dispute resolution processes as ODR. Scholars and regulators across the world have provided several definitions of ODR so as to include a wide range of dispute resolution procedures. While examining different doctrinal orientations and approaches of international ODR institutions, this contribution will propose a definition of ODR, outline a theoretical framework for the systemic study of ODR processes, and identify areas of interest for future research.

The Role of NGOs in Conflict Management

The changing environment of war and conflicts has exacerbated the need for non-governmental organizations (NGOs) to intervene and play a key role in resolving conflicts and restoring civil society. NGOs are organizations that operate independently of any government and they are responsible for addressing social and political issues. Their role to resolve conflicts has emerged as an additional, yet essential part of the entire procedure of dispute management. This paper examines the place of NGOs in the global environment as well as the more specialized way in which they are involved in the dispute resolution process. It involves the theoretical part and the practical application of dispute management from NGOs in case studies and more specifically Bosnia, Georgia and Afghanistan, examining their degree of success in each of these cases.

BAWASLU ELECTRONIC ADJUDICATION: THE FUTURE OF INDONESIA’S ELECTION PROCESS DISPUTE RESOLUTION

The Electronic Adjudication System is a system that can provide an effective, efficient and contextual dispute resolution process with the times. In 2024, Indonesia will hold general elections and simultaneous regional head elections which are scheduled almost simultaneously. Bawaslu as an election law enforcement agency is certainly not enough just to prepare human resources, but infrastructure and methods of examination are also important things to be addressed. This research examines, how is the utilization of the electronic system in resolving adjudication disputes in Bawaslu from an ius constitutum perspective? How is the utilization of the electronic system in resolving adjudication disputes in Bawaslu from the ius constituendum perspective? This research is normative research, using a statutory approach, conceptual approach and case approach. It is concluded that: first, the use of electronic systems under Bawaslu has in principle been implemented but is still limited to receiving dispute requests. Second, E-Ajudication is enforced by developing the SIPS system along with putting the legality of its use in the provisions of Article 468 of the Election Law and Article 25 of Perbawaslu Dispute Resolution. Then with the enactment of E-adjudication, evidence in the form of electronic documents becomes the main evidence in the settlement of nomination disputes.

Decoding a construction organisation's tendency to litigate: an understanding through financial statements

PurposeDespite the availability of amicable means to resolve construction disputes, litigation remains a mainstream dispute resolution process in some countries. This tendency to litigate (TTL) calls for research to develop appropriate precautions to encourage stakeholders to resolve most commercial disputes through alternate dispute resolution (ADR) techniques. While a claimant's TTL arise from the individual, project and organisation preferences, this study, which can benefit both potential claimants and employers by saving time and money on litigation, identifies a bidder's financial parameters that may increase its litigation propensities, as a first step towards aiding employers to incorporate precautions to discourage such tendencies.Design/methodology/approachAfter the literature review, the theoretical construct proposed by Rachlinski's “framing theory of litigation” (based on Kahneman and Tversky's Prospects Theory) is used to explain organisation-level litigation decision-making. The study sources data from the financial statements of Indian construction/real estate firms, followed by panel regression analysis to test the theoretical construct's validity.FindingsThe results show that the TTL (risk-seeking behaviour) generally increases with a lower value of sales, higher assets and profitability. Interestingly, organisation-level cash flow shows an insignificant influence on litigation tendencies.Practical implicationsKnowing which financial parameters may increase litigation tendencies could help employers evaluate a bidder's propensity to litigate project disputes.Originality/valueResearchers use financial statements to explore correlations among financial variables. However, in the construction context, there are no empirical studies with data from construction firms to understand potential litigation expenses compared to specific financial ratios.

ROLE OF ADR IN RESOLVING DISPUTES OF INDIAN INFRASTRUCTURE SECTOR

In this decade, Government of India has taken up infrastructure developments of huge magnitude under Public-Private Participation (PPP) in the areas like irrigation, roads, ports, and power projects, which need abundant private sector investments. Development of infrastructure in a country like India involves large number of projects being carried out across the country amidst various economic, political, social & climatic conditions, and challenges. Many of these projects have often suffered cost and time delays due to disputes over land acquisition, grants for environmental and forest clearance, and other approval. Disputes arising in the Infrastructure Sector been a toll on the overall growth and development of Indian infrastructure projects resulting in either delayed completion or abandoning the project itself. Many foreign companies are willing to invest and set up joint venture projects in India but they apprehend that in case of any dispute the Indian courts would take long to decide the claim which in turn will lead to increase in overall cost of the project. Thus, it can be said that slow dispute resolution process prevailing in the country is keeping the foreign investment at bay. The shortcomings of civil or commercial litigation have come to the forefront in the developing nations in the contemporary period which has necessitated the rise of alternate dispute resolution mechanisms all over the world. It is necessary to cut down the demand for adjudication, through arbitration and other ADR mechanisms. DR provisions in the ‘Project Concession Agreement’ may not be sufficient to manage the evolving dispute that is expected to be encountered at different stages of the project. This paper explores the various dimensions of disputes arising out of infrastructure construction industry and their possibility of being resolved amicably by alternate modes of dispute resolution. This paper tries to clarified the critical issues affecting current infrastructure PPP practice, thereby enhancing infrastructure PPP practitioners understanding of potential barriers to successful infrastructure PPP in Dispute Resolution.

THE ROLE OF THE DISTRICT GOVERNMENT INTEGRATED TEAM IN RESOLVING LAND CONFLICTS BETWEEN CORPORATIONS VS SUKU ANAK DALAM

This study aimed to determine the role and mechanism of the integrated Team in Batang Hari Regency in resolving land conflicts between PT.Berkat Sawit Utama with the 113 Anak Dalam Tribe in Bungku Village, Batang Hari Regency. The role of the Batang Hari Regency Integrated Team is regulated in the Batang Hari Regency Regional Regulation Number 72 of 2022 concerning the establishment of an Integrated Team for Social Conflict Resolution at the Batang Hari Regency Level in 2022, which is regulated in Permendagri No. 42 of 2015 concerning Implementation of Coordination of Handling Social Conflicts. This research method is empirical juridical because it uses secondary data as supporting data and primary data collected through literature and field research. Based on the results of the study, it can be concluded that the Batang Hari District Integrated Team in resolving land conflicts between PT.Berkat Sawit Utama with the SAD 113 group, namely by facilitating, mediating, and maximizing the dispute resolution process through the establishment of the Batang Hari Regent's Decree Number 72 of 2022 concerning the establishment of an Integrated Team for handling social conflict at the Batang Hari Regency level in 2022. This integrated Team carried out the settlement, considered ineffective for both parties, where the conflict that should have been resolved became hampered and prevented both parties from obtaining legal certainty regarding this land dispute. Therefore, it is necessary for a party that has higher authority than the district government, which has limitations because of the regional autonomy system, to participate in settling land dispute cases

Incorporating machine learning in dispute resolution and settlement process for financial fraud

Incorporating machine learning in dispute resolution and settlement process for financial fraud

The Concept of Ṣulḥ and Mediation in Marriage Conflict Resolution in Religious Courts: A Comparative Study between Contemporary Indonesian Family Law and Classical Islamic Law

Mediation as a dispute resolution process outside the courtroom has been used by the Religious Courts. Its juridical basis is based on Indonesian Supreme Court Regulations Number 2 of 2003 and Number 1 of 2008 concerning Mediation Procedures in Courts. Meanwhile, in the classical Islamic legal tradition, marital conflicts are resolved by a third party outside the courtroom which is referred to as ṣulḥ, namely efforts to reconcile through a process of taḥkīm or arbitration. Based on this, this study answers the question whether the Religious Courts in Indonesia fully use the concept of ṣulḥ as a process of resolving marital conflicts as depicted in the classical Islamic legal tradition. This study concludes that the Religious Courts in Indonesia do not fully use the concept of ṣulḥ as a process of resolving marital conflicts as depicted in the classical Islamic legal tradition. This is because the concept of ṣulḥ in Islamic law uses the taḥkīm (ḥakam) mechanism. The concept of ḥakam originating from the classical Islamic legal tradition and mediation originating from the contemporary national legal tradition actually both have substantial differences in terms of concept and implementation in the Religious Courts. The difference in concept is due to differences in sources, authorities, and procedures. However, there are similarities between the two, which lie in the involvement of someone who plays a role in resolving disputes and conflicts in court.

Pre-Action Protocols and Pre-Action Dispute Resolution Processes

This article explores the role of ‘alternative’ dispute resolution in the context of the publication of Part 1 of the Civil Justice Council (CJC) Review of Pre-Action Protocols, to which the author contributed. The relationship between the CJC Report and the Master of the Rolls’ vision for the future of digital justice are considered as are the most salient details of the Report’s proposals, not least mandating dispute resolution engagement, digitalizing portals to manage pre-action steps and gather rich data, and a process for raising alleged failures to comply. The article concludes with consideration of further improvements which the use of technology and rich data may bring, on the near, medium and far horizons.
 Keywords: alternative dispute resolution; ADR; mediation; early neutral evaluation; ENE; negotiation; pre-action protocol; settlement; artificial intelligence; AI; funnel; digital pathfinder; deep learning; reinforcement; sanctions; non-compliance; rich data.

Critical Issues Affecting Dispute Resolution Practice in Infrastructure Public–Private Partnerships

Infrastructure public–private partnership (PPP) projects across the world have suffered early termination, premature change of ownership, cost and time overruns, among others, often resulting from a number of issues some of which are related to poorly managed dispute. Despite this, literature revealed that no process-centric attempt had been made to highlight the critical issues affecting dispute resolution (DR) in infrastructure PPPs. Through event sequence analysis (ESA) of 158 data sources (including 63 journal articles), this study examined the critical issues affecting infrastructure PPP DR practice, with the motivation of unveiling areas of potential improvement to the DR practice. Among other findings, the multiple roles of the public partner in the DR process were found to result in ambiguity on who was responsible for overseeing their actions. Relatedly, the effectiveness of dispute boards was on some occasions undermined when they were assigned multiple functions. Besides this study adding to the theoretical body of knowledge through application of ESA in infrastructure PPP DR research, it clarified the critical issues affecting current infrastructure PPP DR practice, thereby enhancing infrastructure PPP practitioners’ understanding of potential barriers to successful infrastructure PPP DR. Although the researchers acknowledge the plausibility of an in-depth investigation into ways in which the critical issues in DR practice can be addressed, the main focus of this study was to provide clarity on the critical issues affecting DR in infrastructure PPPs. A separate study focusing on improvements to DR in infrastructure PPPs is recommended.

Identification of Dispute Sources in the Construction Industry via Court Files

Contracting parties generally tend to resolve their disputes through the litigation process. The lengthy litigation process reduces the belief among the parties that the disputes are resolved peacefully, and this destabilizes the sustainable structure of the construction industry where disputes are very common. Determining the most common sources of disputes in construction lawsuits is very important in terms of taking necessary precautions beforehand. Additionally, increasing the competency levels of construction and judicial actors regarding construction processes is extremely important in terms of making the judicial process more efficient and faster. Therefore, this study aims to reveal the most frequent dispute sources in the construction industry, the competency levels of judicial actors including expert witnesses and the average duration of the construction-related litigation process for the superior courts. Hence, 346 construction-related lawsuits conducted between 2018 and 2021 were examined via content analysis to classify the common themes. Lawsuits were investigated via the official websites of Courts of Cassation and National Judicial Network Information System (UYAP). Next, the frequency analysis was conducted to detect the significance of each theme via SPSS software. It is highly believed that this study will enable the decision-makers to take necessary precautions before the dispute occurs as well as improve the dispute resolution process in the construction industry. Projects related to superstructure works constituted the majority of the disputes ending up with the judicial process. Additionally, the majority of the disputes detected from lawsuits resulted from “Debit and Credit” related issues. Moreover, the litigation process was also detected as a very lengthy process. Furthermore, it is detected that majority of the lawsuits were rejected by the Courts of Cassation due to inadequacies of the competency levels of the judicial actors.

College Athlete NIL Activities and Institutional Agreements at a Crossroads: An Analysis of the Regulatory Landscape and “Conflict Language” in State NIL Legislation

State legislation paved the way for college athletes to begin monetizing their name, image, and likeness (NIL) through commercial activities as of July 2021. However, the statutory language utilized in state NIL legislation provides an inconsistent regulatory framework for college athletes as they seek to navigate the NIL landscape. Therefore, the purpose of this study was to conduct a comparative legal analysis of state NIL legislation to determine how these statutes restrain college athlete NIL activities that conflict with institutional agreements, limit NIL activities during official team activities, and establish enforcement or dispute resolution processes for asserted conflicts. We analyzed 26 state NIL statutes containing specific conflict language and found three areas of significant variation between states: the regulatory framework used to define contractual restraints; the definition and treatment of contract types subject to potential conflicts with NIL activities; and the requirements placed upon an institution when a contractual dispute arises. We discuss these areas of discrepancy between state NIL legislations and offer recommendations for legislatures focused on creating an NIL environment for college athletes with minimal restraints.

Investigating The Jurisprudential Aspects Of ADR

A formal set of guidelines for human conduct is known as the law. Law can be used to govern society. The law has two parts: a descriptive aspect and a philosophical aspect. The philosophical side of the law is covered in jurisprudence. The practise of law is prevalent everywhere. All societies share some commonalities in their jurisprudence, Law (as an institution) is one of several social and political institutions created for conflict settlement. Private parties started looking for novel techniques to speed up the resolution of cases. ADR serves as an alternative to traditional court procedures for resolving disputes. There are two methods for resolving disputes. They are An alternative dispute resolution process and The conventional approach of litigation. Justice has been prioritized by many thinkers, including Plato, above all other moral principles. Overall, justice is a moral principle, but it can take many different forms. Examples include 1. Substantive Justice, 2. Formal Justice, and 3. Legal Justice. The Indian justice system is in a sad state despite being one of the oldest in the world. Indian courts are overburdened with protracted unresolved cases. ADR has developed to strengthen the sense of justice in society because these things are unachievable without it. The aforementioned school of thought has some drawbacks. The main one is that it defines law as a command, regardless of other social structures or institutions. One manifestation of society that was created to address social demands is the law and institutions relating to alternative dispute settlement processes. Artificial intelligence is progressing at an incredibly fast rate. The social, economic, cultural, and political spheres of existence will drastically shift as a result of these advancements. AI systems are starting to appear in ADR processes. Such systems have both advantages and problems. The law ought to be written to take future demands into account.

UNCLOS 1982 Analysis Regarding Problems of State Jurisdiction and Law Enforcement on Foreign Flag Ships

International Law of the Sea are legal principles governing the rights and authorities of a country over sea areas under its national jurisdiction (national jurisdiction). International Law has reign most interactions between States in the sea. The practice of illegal transshipment is a serious issue as it falls within both theft mode and smuggling through the transfer of cargo from one ship to another that occurs at sea. Including a crime which committed in the territory of one state but involving parties from another state or more. Law enforcement is a major concern when an offence of some kind of illegal transshipment occurs. The study aims to determine the jurisdiction of states in enforcing laws including in criminal matters that occurred over its sea where the country has sovereign rights, especially when the involvement of 3rd states party in the law enforcement on a ship which not entered into its territory, yet indicately committed a violation of the law in some states water area, this paper also study how the responsibility of 3rd states party towards of flag states of ships who feel harmed. This article was written using normative research methods with a statutory. Historical and conceptual approach explaining efforts from international organizations in resolving the issues of accountability of countries involved in the problem of Illegal Transshipment at sea in the 1982 UNCLOS perspective especially the process of law enforcement and dispute resolution by the International Tribunal for the Law of The Sea (ITLOS).

The Use of Mediation as Alternative Property Dispute Resolution

Property disputes cannot be avoided in the present era, this is due to various primary needs that are very high in today's times for example the number of land plots is limited in the development of home property. This demands improvements in the field of arrangement and use of property for the welfare of the community and especially its legal certainty. For this reason, various efforts are made by the government to seek the settlement of property disputes quickly to avoid the buildup of property disputes, which can harm the community, for example, property cannot be used because the land is in dispute. Basically, the choice of dispute resolution can be done with 2 (two) processes. The process of dispute resolution through litigation in court and non-litigation, as the initial stage of settlement, this paper has highlighted the settlement of property disputes in the initial residence using mediation as an alternative dispute resolution in property disputes with a voluntary mediation scheme. Keywords: Alternative Dispute Resolution, Voluntary Mediation, Ownership Rights