Dispute Resolution Process Research Articles

THE EVOLVING LANDSCAPE OF INVESTOR PROTECTION: BALANCING STATE SOVEREIGNTY AND INVESTOR RIGHTS IN THE 21ST CENTURY

The evolving landscape of investor protection in the 21st century requires a delicate balance between safeguarding investor rights and preserving state sovereignty. As global investments expand, investors seek legal assurances to protect their assets, while states must retain the ability to regulate in the public interest, addressing economic, social, and environmental challenges. This tension has sparked debates about the role of investor-state dispute settlement (ISDS) mechanisms and the need for reform. By modernizing investment treaties and dispute resolution processes, the international community can create a more equitable system that fosters both investment and sustainable development, ensuring mutual benefits for investors and states alike.

EFFECTIVENESS OF BUSINESS DISPUTE RESOLUTION THROUGH MEDIATION IN INDONESIA

This study investigates the effectiveness of mediation as a mechanism for resolving business disputes in Indonesia, focusing on its procedural efficiency and impact on the relationships between disputing parties. Employing a qualitative research approach with descriptive normative analysis, the research highlights the legal foundations of mediation established by laws such as Law No. 30 of 1999 and Supreme Court Regulation No. 1 of 2016, which mandate mediation prior to litigation. The findings reveal that while mediation presents significant benefits, including faster resolution times and cost savings, its effectiveness is contingent on several factors: public awareness, the quality of mediators, and the parties' willingness to engage collaboratively. The study emphasizes the importance of confidentiality, neutrality, and mutual interest as key principles in ensuring a fair mediation process. Despite the challenges faced, such as a preference for litigation and uncertainties regarding the enforcement of mediated agreements, the research indicates that mediation has the potential to enhance business relationships and streamline dispute resolution processes. The insights gleaned from this study not only contribute to the understanding of mediation within the Indonesian legal context but also offer valuable lessons for other jurisdictions aiming to develop their alternative dispute resolution frameworks.

Adaptive strategies for investor-state arbitration: A framework for emerging economies to safeguard national interests and attract investment

In the realm of international investment, Investor-State Arbitration (ISA) plays a crucial role in resolving disputes between investors and states. Emerging economies often face unique challenges in this context, balancing the need to attract foreign investment with the imperative to safeguard national interests. This review presents a framework for adaptive strategies designed to help emerging economies navigate the complexities of ISA while optimizing both investment attraction and national protection. The framework emphasizes a dual approach: enhancing the attractiveness of a country for foreign investors and fortifying mechanisms to protect national interests. Key components of the framework include the development of robust legal and regulatory environments that align with international standards while accommodating national priorities, and the adoption of transparent and equitable dispute resolution processes. The framework advocates for the integration of tailored dispute resolution clauses in investment treaties that consider the specific needs and vulnerabilities of emerging economies. Additionally, it recommends the establishment of dedicated institutions and expertise to manage ISA effectively, ensuring that states are well-prepared to address and resolve disputes. Emphasis is placed on proactive engagement in treaty negotiations, leveraging strategic partnerships, and fostering dialogue with investors to create a balanced and mutually beneficial investment climate. The review also highlights the importance of continuous review and adaptation of legal frameworks to respond to evolving global standards and investment trends. By implementing these adaptive strategies, emerging economies can enhance their attractiveness as investment destinations while safeguarding their sovereignty and national interests. The proposed framework provides a comprehensive approach to managing ISA, balancing the imperative of attracting investment with the need to protect national resources and regulatory autonomy.

Contractual challenges in renewable energy projects: The role of ADR in managing risks and disputes

Renewable energy projects are increasingly pivotal in the global transition to sustainable energy systems. However, these projects face unique contractual challenges that can lead to disputes and risks, impacting project timelines and costs. This paper explores the critical role of Alternative Dispute Resolution (ADR) mechanisms in managing and mitigating these challenges. The study highlights common contractual issues encountered in renewable energy projects, including ambiguities in contract terms, scope changes, and performance obligations. It examines how ADR methods, such as mediation, arbitration, and adjudication, offer effective solutions for resolving disputes and minimizing disruptions. By analyzing case studies and industry practices, the paper demonstrates the efficacy of ADR in addressing specific issues such as delays, cost overruns, and compliance failures. The findings underscore the importance of incorporating ADR clauses into contract frameworks to enhance dispute resolution processes and risk management strategies. The paper concludes with recommendations for integrating ADR into contractual agreements and emphasizes the need for stakeholders to proactively address potential disputes to ensure project success.

BUILDING TRUST THROUGH CONTRACT: A LEGAL PROTECTION EFFORT FOR SERVICE PROVIDERS AND USERS IN THE DIGITAL ERA

This study investigates the effectiveness of mediation as a mechanism for resolving business disputes in Indonesia, focusing on its procedural efficiency and impact on the relationships between disputing parties. Employing a qualitative research approach with descriptive normative analysis, the research highlights the legal foundations of mediation established by laws such as Law No. 30 of 1999 and Supreme Court Regulation No. 1 of 2016, which mandate mediation prior to litigation. The findings reveal that while mediation presents significant benefits, including faster resolution times and cost savings, its effectiveness is contingent on several factors: public awareness, the quality of mediators, and the parties' willingness to engage collaboratively. The study emphasizes the importance of confidentiality, neutrality, and mutual interest as key principles in ensuring a fair mediation process. Despite the challenges faced, such as a preference for litigation and uncertainties regarding the enforcement of mediated agreements, the research indicates that mediation has the potential to enhance business relationships and streamline dispute resolution processes. The insights gleaned from this study not only contribute to the understanding of mediation within the Indonesian legal context but also offer valuable lessons for other jurisdictions aiming to develop their alternative dispute resolution frameworks.

Empirical Legal Analysis of Land Rights Dispute Resolution between Indigenous Communities and Mandalika Special Economic Zone Development Companies

This study aims to analyze the implementation of the settlement of land rights disputes between indigenous peoples and special economic zone development companies. Mandalika, as well as factors that influence the resolution of land rights disputes between indigenous peoples and Special Economic Zone development companies. Mandalika. Using empirical legal research methods. The results of this study indicate that the settlement process in the dispute resolution process, there are 2 dispute resolution processes, namely: Settlement through Non-Litigation and Litigation. Settlement of disputes outside the court or known as Alternative Dispute Resolution can be achieved through Arbitration, Mediation, Conciliation, Minitrial, Summary Jury Trial, and Settlement Conference. While the settlement through litigation on customary land as a dispute resolution between parties is carried out through examination before a judge in a court institution, this is because the development of the era towards the needs of the community for justice and welfare is increasing. Factors that influence the settlement of disputes over land rights between customary law communities and the Mandalika special economic zone development company, namely: legal factors and intervention of the authorities, cultural factors, socio-economic factors, and factors of third party involvement. In the dispute resolution process, the community emphasizes more on settlement through non-litigation, namely mediation.

Factors Militating against the Efficacy of the Mutual Agreement Procedure: A Comparison between South Africa, Kenya, Uganda and Ghana

The effective resolution of transfer pricing disputes has been identified as one of the primary challenges to eliminate double taxation and/or double non-taxation as well as to enhance the free flow of trade and investment. This article investigates the unique challenges faced by selected African countries, including South Africa, Kenya, Uganda and Ghana, which militate against the use of the mutual agreement procedure (MAP) as a preferred Organisation for Economic Co-operation and Development (OECD) transfer pricing dispute resolution mechanism. The research used a qualitative legal review of existing literature in the selected regimes by comparing the domestic tax law framework in these countries. Transfer pricing manipulation is a significant source of illicit financial flows of capital as identified in the research by Global Financial Integrity on Africa, which drew from Ghana, Kenya and Uganda as case studies. South Africa and Kenya are considered as the gateways to Africa with many multinational enterprises (MNEs) taking residence in them before expanding to the rest of Africa. The article focuses specifically on a number of guidelines that should be in place for the effective use of the MAP in the resolution of tax treaty disputes. It also demonstrates how the absence of guidelines, or the lack of clarity thereof, discourages both taxpayers and revenue authorities from effectively using the MAP to resolve transfer pricing disputes. The absence of guidelines has resulted in many aggrieved taxpayers opting to approach the courts as opposed to using the MAP as a mechanism to resolve tax treaty disputes. Furthermore, it highlights the importance of how resolved transfer pricing disputes eliminates double taxation. The article recommends that the same benefits enjoyed under the domestic dispute resolution process be incorporated into the MAP. It also makes recommendations on how jurisdictions with a low tax treaty network can address this challenge to enable them to effectively use the MAP as a tax treaty dispute resolution.

The Impact Of Using Technology And Innovation In Law Enforcement In The Era Of Digitalization

In an era of rapid digitalization, technology and innovation have fundamentally transformed the landscape of law enforcement. This article examines the profound impact of information technology on various aspects of law enforcement in the digital age. It offers a comprehensive review of how technology has reshaped evidence collection, surveillance, rule enforcement, and dispute resolution processes. Additionally, the article discusses the challenges and opportunities the legal system faces in adapting to these technological advancements. Utilizing a literature review methodology, the research analyzes case studies and conceptual frameworks to provide a deeper understanding of how technology enhances the effectiveness and efficiency of law enforcement while considering its broader implications for justice and human rights. Furthermore, this study lays the groundwork for future research, encouraging further empirical exploration of these critical issues. This research examines the impact of technology on the accessibility of justice, highlighting both its potential to democratize legal services and the challenges it poses, such as privacy concerns and security risks. By exploring these dynamics, the study lays the groundwork for future research on the evolving role of technology in law enforcement and legal systems.

Social justice for peace: towards the complementarity of criminal justice systems-The case of the San communities of the Northern Cape Province of South Africa

ABSTRACT Originating from the need for the recognition of social justice for communities living in remote areas and in conditions characterised by unequal power relationships, fear and exclusion. This article addresses the question ‘How can the complementarity of the criminal justice system of South Africa in partnership with communities, with specific reference to the San communities of the Northern Cape Province of South Africa, achieve social justice?’. The authors argue that social justice for communities such as the San communities of South Africa, could be achieved by means of a triangulation that involves mutual respect for the dignity of the person; applying the principles of human rights to all people; and the complementarity of dispute resolution processes which are acknowledged by the communities. After offering a theoretical and philosophical framework, the specific case study of the San is discussed to elucidate how the criminal justice system in partnership with communities, can achieve complementarity of justice systems towards social justice in society at large. This complementarity is relevant in highlighting access to justice and the implementation of dispute resolution processes that accounts for the rights, human dignity, culture and integrity of the participants.

Evaluating Industrial Dispute Resolution Methods: A Case Study of Bangladesh

Currently, parties involved in the process of industrial dispute resolution prefer alternative dispute resolution (ADR) to the adversarial process which requires an evaluation of ADR to infer how effective it is. Theoretically, the concept of ADR has been originated from the theory of conflict resolution management. Even though ADR has been implemented largely by apparel firms, studies to assess the effectiveness of ADR are scant. To assess the effectiveness of ADR as an industrial dispute resolution method (DRM), the study evaluated seven hypotheses using the Chi-square test and Cramer’s V. Data were gathered from both employers and employees of apparel factories in Bangladesh using two different sets of survey questionnaires. The results showed that employees are more familiar with ADR processes if the companies are run for a long time. It has also been found that the presence of a labor union has been determined to be crucial in the selection of DRMs and workers advocate more for ADR than formal adjudication machinery. The findings of the research are expected to contribute to the dispute resolution process since this study attempted to explore the perceptions of both employees and employers which is instrumental to the amicable settlement of disputes by applying ADR.

Penyelesaian Sengketa Terhadap Hak Guna Bangunan Atas Tanah Milik Orang Lain

The purpose of writing this article is to explain the issues that often arise in conflicts over building use rights over private property rights. The abstract talks about efforts to resolve disputes. The National Land Agency (BPN) offers non-litigation through mediation services or through other dispute resolution channels. Land ownership is the main issue in the dispute resolution process. Land ownership certificates are a strong source of evidence, but can be revoked if the opposing party has stronger proof of ownership.

Towards Achieving Substantive Justice: The Importance of Extending the Time Limit for Resolving Presidential Election Disputes

Presidential election dispute resolution (PHPU) is complicated because its scope covers the entire territory of Indonesia and its application to Indonesian citizens in various parts of the world. The PHPU dispute resolution process must also guarantee maximum protection of constitutional rights. This research uses normative research methods using secondary data sources. This aims to assess the urgency of extending the deadline for resolving presidential election disputes, which is currently 14 working days from the date of submission. Research sculpture approach and conceptual approach. These findings illustrate the need for changes to legislation to extend the time limit for resolving PHPU disputes beyond the existing 14-day limit. In practice, this time period does not provide maximum opportunity for the presentation of evidence. Historical analysis shows that from the 2004 presidential election to 2024, not a single PHPU demand has been granted, mainly because the demand cannot be proven. The author emphasizes that a time limit that is too early does not guarantee substantive justice, which includes not only fair and accurate decision-making, so rational considerations are needed that produce rational and logical decisions and a process that allows each party to present their arguments comprehensively and obtain fair treatment in the judicial process.

Dispute Resolution over Music Performance Contract Cancellation Due to the Effects of Controversial Actions

This research aims to analyze the category of music performance contract cancellations due to controversial actions and the forms of non-litigation dispute resolution between the event organizer and 1975. This study combines normative and empirical research methods. Subsequently, the collected data were analyzed qualitatively to describe the problem and address the research purposes. The results show that the controversial actions of The 1975 vocalist in Malaysia, leading to the cancellation of their performance at “We the Fest 2023” in Jakarta, constitute a breach of contract. This cancellation not only reveals the direct impact on the event but also highlights the importance of clauses in contracts that specifically regulate public behavior and the potential consequences of such behavior, both legally and ethically. Furthermore, the dispute resolution between the Event Organizer and The 1975 following the cancellation of their performance was achieved through negotiation. The dispute resolution process between the two parties was effective and took only two days, demonstrating that negotiation is a quick and efficient non-litigious method. Therefore, it is recommended that event organizers and artists, singers, or bands include and clarify clauses in performance contracts related to public behavior and its potential consequences. These clauses should detail the fines or legal consequences that may arise from controversial actions that could negatively affect the execution of the contract or the reputation of the involved parties. Additionally, Event Organizers are advised to set behavior standards that band personnel must adhere to while on stage, thereby minimizing the risk of future music performance cancellations. Lastly, both Event Organizers and music bands should prioritize non-litigation as the initial step before pursuing litigation, as negotiation has proven efficient and effective in resolving disputes arising from breaches of contract due to controversial actions.

The British Courts and Compulsory ADR—How Did That Happen?

On 29 November 2023, the Court of Appeal held in James Churchill v Merthyr Tydfil County Borough Council, that the courts of England and Wales are entitled lawfully to order parties to engage in non-court-based dispute resolution processes. This important decision should not come as a surprise. This article will argue by reference to case law, judicial commentary and the Civil Procedure Rules (CPR) that this decision is the most recent expression of an impulse the courts have long maintained: that a case can be dealt with justly by moving (by various means) litigants away from the judgment seat to one of negotiated, consensual outcomes. The decision corrects an anomaly within the CPR that obliges parties to further the overriding objective by considering alternative dispute resolution but deprives the court of a particular remedy to enforce that obligation. This article will trace the roots of the Court of Appeal decision and identify to what extent it is the natural progression in judicial thinking, and it truly breaks new ground. Keywords: ADR; justice; civil justice; court reforms; overriding objective; Halsey; CPR; Churchill v Merthyr Tydfil; Article 6; arbitration agreements.

ONLINE DISPUTE RESOLUTION: A MODERN ART OF ADJUDICATION

Online dispute resolution is basically a technique where disputes of the physical world and disputes of cyberspace can be solved in a better way, whether the dispute resolution procedure is completely online or partly online. But here the first question is; what are the areas where online dispute resolution processes may be helpful to solve disputes? And the second question is whether it is suitable to a particular environment? Basically, it is mooted by various jurists that e-commerce is the suitable place where online dispute resolution can help to provide justice to the community. But this is not a complete statement and the importance of online dispute resolution processes is much more than this fact. Number of other areas have been identified by various writers and practice in different countries shows the use of ODR in different fields. Online dispute resolution, similarly as ADR, is a range of processes and forms. ODR emphasized on how to do, rather than what to do? In future, most dispute resolution processes will likely migrate to online processes, and ODR will be useful to almost every type of dispute.

Institutionalization of Islam and Adat: The Legal System of Hak Langgeih in Aceh

This study aims to discuss the institutionalization of custom and Islam in the Fatwa of Aceh’s Ulama Consultative Council (MPU). Local genius and adat have recently emerged as essential role of the legal pluralism discourse in the age of globalization. This fatwa was issued in an effort to preserve Muslim land and property ownership in Aceh, Indonesia, after the tsunami. The effort has its dynamics, considering the existence and control of property by non-Muslims. The problem in this study is how the dynamics of the legal system, encompassing legal substance, legal structure, and legal culture, interact with the institutionalization of legal rights in Aceh's MPU Fatwa. This research is socio-legal research. The results of this study indicate that adherence to adat, mediated by ‘hak mieung’, has placed adat structures as dispute resolution processes. Legal culture is of greater significance than legal structure and substance in the institutionalization of hak langgeih in Aceh.

Authority of the National Land Agency in Resolving Land Disputes Overlapping Certificates of Ownership

The resolution of land disputes carried out by the National Land Agency is a new breakthrough in order to avoid the accumulation of cases in the judiciary, especially the State Administrative Court. This research aims to examine and analyze the process of resolving land disputes over overlapping property rights certificates carried out by the National Land Agency and to understand and analyze the form of authority of the National Land Agency in resolving land disputes over overlapping property rights certificates. The research method is normative juridical. The type of data used is secondary data. Data analysis techniques using deductive reasoning presented descriptively. From the research results, it can be stated that the land dispute resolution process in relation to certificate cancellation can be carried out through the State Administrative Court and outside the court. Settlement of disputes outside of court, in this case the cancellation authority is given to BPN which can be divided into two, namely through the authority of the ministry and outside the authority of the ministry. Meanwhile, BPN's form of authority in resolving land disputes can be in the form of attribution authority and delegation authority.

Cross-Border Trade Disputes: A Comparative Analysis of Indonesia and Australia

This comparative analysis delves into the intricate landscape of cross-border trade disputes, focusing on Indonesia and Australia. As two significant players in the global trade arena, understanding their dispute resolution mechanisms is crucial for fostering bilateral and multilateral trade relationships. The study examines the legal frameworks, institutional mechanisms, and cultural factors influencing trade dispute resolution in both countries. Indonesia's approach may reflect its unique socio-political context, while Australia's system could showcase its commitment to transparency and adherence to international trade norms. Key aspects explored include the role of governmental bodies, such as trade ministries and dispute settlement panels, as well as the utilization of alternative dispute resolution methods like arbitration and mediation. Moreover, the analysis delves into the effectiveness and efficiency of these mechanisms in resolving disputes promptly while maintaining fairness and equity for all parties involved. Comparisons are drawn between Indonesia and Australia in terms of legal precedents, enforcement mechanisms, and the level of stakeholder engagement in the dispute resolution process. Additionally, cultural nuances and historical contexts are considered to understand how these factors shape the negotiation and resolution of trade conflicts. By synthesizing these insights, the study aims to provide policymakers, trade practitioners, and academics with a comprehensive understanding of the strengths and weaknesses of each country's approach to cross-border trade dispute resolution. Ultimately, it seeks to contribute to the development of best practices and strategies for enhancing trade relations and promoting economic cooperation between Indonesia and Australia, as well as other nations globally.

Can Artificial Intelligence and Modern Technologies Address the Common Issues of Consumer Online Dispute Resolution in the EU?

The article examines the current status of Online Dispute Resolution (ODR) in the European Union, explicitly evaluating its advantages and disadvantages. In addition to examining the evolution of the ODR mechanisms, the author sheds light on the challenges encountered in their implementation, such as concerns about trust, transparency, and accessibility. Moreover, this analysis investigated the potential implications of artificial intelligence and contemporary technologies on the transformation of the EU’s consumer ODR framework. The ADR/ODR system of the EU has been subject to criticism for several weaknesses, including inconsistent implementation, insufficient supervision, and the lack of mandatory participation for traders. The lack of a specialised supervisory mechanism has also led to shortcomings in the oversight process. The Directive does not impose a requirement for traders to participate in ADR procedures; nevertheless, there exists significant heterogeneity in the regulations that govern these procedures. The lack of binding enforcement for final decisions arises from the requirement of Member States to agree upon and acknowledge the mechanisms for recognition and implementation. The EU ODR Platform operates as a mechanism for referring cases to ADR bodies. Nevertheless, the entity in question does not actively participate in the resolution of disputes based on their substantive merits, and its jurisdiction is primarily limited to smaller entities. Artificial intelligence (AI) has the potential to enhance transparency, objectivity, and legitimacy within online dispute resolution systems, thereby potentially giving rise to a two-tier system. The author suggests that in order to bring about significant legislative changes, it is necessary to incorporate certain provisions. These provisions should mandate the enforcement of decisions made in alternative dispute resolution (ADR) processes for consumers and also facilitate the seamless integration of artificial intelligence (AI) into this system. Otherwise, it is unlikely that AI will substantially impact the efficiency and effectiveness of the EU ADR/ODR system, as its primary challenges are rooted in areas beyond the scope of AI, such as the enforcement of decisions.

Exploring the Effectiveness of Mediation in Resolving Disputes in the Indonesian Administrative Court

This study analyzes mediation in administrative dispute resolution in Indonesian Administrative Courts. The settlement of administrative disputes through mediation is not recognized in the Administrative Court procedural law. Mediation in the dispute resolution process in Administrative Courts is still a matter of debate. One of the parties to the dispute is a public body or official who is included in the realm of public law, so that mediation is not possible. The execution of Administrative Court decisions that have permanent legal force does not guarantee justice and legal certainty. This research aims to analyze the development and implementation of mediation in settlement of public disputes in Administrative Courts. The research method used is doctrinal research or library research with secondary data sources in the form of legislation on Administrative Courts, Supreme Court regulations on mediation, and scientific journals of research results. The results showed that mediation in public dispute resolution is used as an alternative to dispute resolution and has long been applied in several countries. Mediation in administrative dispute resolution can be carried out in two ways. First, mediation can be carried out outside the Administrative Court, and then the lawsuit is revoked. Second, mediation can be carried out through Court-connected mediation in the Administrative Court. There is a need to develop and strengthen the application of Court-connected mediation for administrative dispute resolution from the aspects of procedural law and Administrative Court resources that support the mediation process.