Dispute Settlement Research Articles

Taking the Fact/Law Distinction Not Too Seriously: the Status of Domestic Law within International Litigation

Abstract The article uses legal theory relating to the traditional distinction between fact and law in order to shed light on the procedural consequences of the consideration that domestic law is a fact in international law. The analysis first relies on formalism, and on the legal syllogism doctrine more specifically, to show that domestic law cannot be, in most cases, anything else than a fact in international legal reasoning. It then draws attention to a constructivist approach to facts according to which domestic law is subject to assessment and interpretation as any other fact is in the judicial process. It paves the way to understanding that the distinction between fact and law for the purposes of the scope of review in the WTO dispute settlement system, as in other appellate systems, is purely functional and must not be taken too seriously, contrary to what is suggested by some analyses of the practice.

THE SIGNIFICANCE OF THE LAW ON AMICABLE RESOLUTION OF LABOR DISPUTES AND THE REVIEW OF THE PRACTICE THUS FAR

During the work process, numerous instances of dispute regarding the positions of the employees, or the interpersonal relations between them or between them and their employer may arise. In addition to the traditional judicial method of labor dispute resolution, it is necessary to develop independent and impartial negotiation mechanisms between the parties in the area of individual and collective labor disputes. In Serbia, these are certainly the arbitration settlement of individual and collective labor disputes, and conciliation as a method of resolving collective labor disputes within and through the Republic Agency for Peaceful Settlement of Labor Disputes. There are many benefits to peaceful labor dispute settlement. The goal of supplementary procedures, i.e. procedures for peaceful labor dispute resolution, is to relieve the traditional judicial approach and direct it to the procedures where a judicial settlement of the dispute is truly necessary. Besides the concept, advantages and characteristics of the amicable labor dispute settlement procedures, certain types of these procedures such as mediation, conciliation and arbitration are also analyzed in the theoretical section of this paper, as well as the most important provisions of the Employment Act and the Law on Amicable Resolution of Labor Disputes. In the research section of this paper, the practice of the Republic Agency for Peaceful Settlement of Labor Disputes in the procedures of amicable labor dispute settlement, both for the territory of the Republic of Serbia and the territory of the City of Novi Sad, is analyzed. The primary research data source was the official data of the Republic Agency for Peaceful Settlement of Labor Disputes. The paper is methodologically based on a theoretical analysis of relevant contemporary theoretical views, a normative analysis of legislative sources, and a quantitative analysis of statistical indicators in the domain of the research subject.

Everlasting divorce? The temporal scope of the UK Withdrawal Agreement

The purpose of this article is to examine and to provide a tentative temporal scope of the UK Withdrawal Agreement with a focus on the maximal time limits for its application. It begins with an analysis of the nature of the agreement and its impact on the temporal scope. Subsequently, a temporal scope is explored with respect to the core provisions of the agreement (citizens’ rights, financial settlement, various separation provisions, and dispute settlement) and the three protocols addressing the situation in Ireland/Northern Ireland, Gibraltar and the Sovereign Base Areas in Cyprus. The focus is laid on determining the approximate time limits for the application of both the core provisions and the protocols. Their temporal scope is derived from their nature and an appropriate explanation to this effect is provided.

Trust as a key element in family mediation during divorce: strategies, practices (supervision experience with the use of neural networks)

The article summarises the experiment on building confidence in the procedure of family mediation – peaceful resolution of family disputes through introduction of the technology of the first outreach meeting. The article analyses the statistics of marriage and family relations, the number of divorces in Russia, Moscow, in the world for 5 years, also during the COVID-19 pandemic. In addition, the work examines the statistics of enforcement proceedings on family relations and the order of communication for several years as well as sociological studies of 2022–2023. The results of experimental supervision using technologies of two neural networks are presented. The peculiarities of family mediation as the most effective non-judicial way of resolving family disputes are studied. It is shown that the achievement of the result, peaceful settlement of family disputes, was facilitated by the experimental development and implementation of a new procedure for Russia – first outreach meeting. It was performed by the Centre for mediation and socio-legal assistance, jointly with the Departments of Social Protection of population of Moscow. The first results are presented: 98 % of efficiency, almost all couples gave their consent to mediation, and the first mediations were successfully conducted. Some of the main reasons for low prevalence of pre-trial settlement of family conflicts were revealed: the normative non-mandatory nature of family mediation for couples with minor children when filing for divorce and lack of awareness of couples about advantages and benefits of resorting to family mediation. The research presents arguments proving that the first outreach meeting is a successful strategy of trust building and the first step to mediation and to preservation of family, family identity, spiritual values for their further transmission to the next generation in the continuous chain of socio-cultural identity

Reconciling International Climate Law and the Energy Charter Treaty through the Use of Integrative Interpretation in Arbitration

The conflicting objectives of the Energy Charter Treaty’s (ECT) protection of fossil fuel investments and climate change mitigation can reveal themselves in investor state dispute settlement (ISDS). As neither the modernization nor the termination of the ECT is likely, ECT arbitration will continue to exist. This article, therefore, examines the reconciling potential of integrative interpretation in climate relevant ECT arbitrations. An integrative interpretation is not only prescribed by the international rules of treaty interpretation, but can also be found in the practice of international dispute settlement. However, international climate law has not yet been taken into account by a single ECT tribunal. Although some hurdles and uncertainties remain in practice, examples of extraneous treaty use, as well as the reasoning of the judgments of recent climate litigation, show that ECT ISDS has the potential to reconcile climate change and energy investment interests in the future.

Enforcement of Multilateral Trade Regulation by Non-State Actors – Desirable and Feasible?

Abstract Since its inception, the inter-state dispute settlement system of the World Trade Organisation has generally been praised for effectively protecting the rule of law in international trade relations. While the relatively recent dismantling of this system does not necessarily mean the end of the WTO nor of the binding nature of its rules, the current crisis may be a good opportunity to reconsider the role of the rule of law in international trade relations and the ways in which it could further be accommodated. One suggestion, occasionally raised in the past, would be strengthening the enforcement of WTO rules by opening it to private action, either before national courts or through international adjudication. After all, the latter has been widely available to foreign investors covered by thousands of international investment agreements in force for decades. This contribution recalls the reasons behind the current lack of private enforcement of WTO law and argues that developments in international trade relations and experiences with investor-state dispute settlement are likely to work against rather than in favor of its introduction in the foreseeable future. Increased transparency and institutionalisation of non-state actors’ role in trade enforcement is therefore recommended instead.

Reforms on the WTO Dispute Settlement System from the Perspective of the Appellate Body

Reforms on the WTO Dispute Settlement System from the Perspective of the Appellate Body

Juridical Review of Elections Dispute Settlement in Indonesia

The research on “Juridical Review of Election Dispute Resolution in Indonesia” aims to describe the mechanism of election dispute resolution in Indonesia, and analyze the current weaknesses of election dispute resolution in Indonesia. This is a normative legal research, which examines laws and regulations in an Indonesian legal system that are coherent with written legal values, especially those related to election dispute resolution in Indonesia. The results of the study state that election settlement mechanisms are important to protect the rights of citizens and help determine whether elections are truly a reflection of the will of their citizens, as well as for elections to be considered credible, voters and election contestants must have access to effective election dispute resolution mechanisms. independent, fair, accessible and effective. Weaknesses in the settlement of election disputes that have been carried out so far have not fulfilled a sense of justice because dispute resolution is carried out through the Constitutional Court based on Article 24 C paragraph (1) of the 1945 Constitution, whose authority is then elaborated in Article 10 paragraph (1) of Law (UU) Number 24 2003 concerning the Constitutional Court as amended by Law Number 8 of 2011 (UU MK). Dispute resolution through the Constitutional Court in Jakarta is felt to be very burdensome for election participants because it is not in accordance with the principle of a cheap, fast and efficient trial. Election dispute settlement, which has been carried out for a maximum of 7 (seven) days, begins with the stages of receiving reports, researching, clarifying, conducting studies, and making decisions. The very limited completion time, which is a maximum of 7 (seven) days, can create a sense of injustice for justice seekers, because this short process can lead to haste in the examination which in turn creates a feeling of insecurity.

Involvement of National Courts in the Recognition of Investor-state Dispute Settlement Awards--A Comparative Analysis of ICSID and UNCITRAL

Involvement of National Courts in the Recognition of Investor-state Dispute Settlement Awards--A Comparative Analysis of ICSID and UNCITRAL

Current Issues of The Utilization of Online Dispute Resolution As A Method For International Trade Dispute Settlement

The transformation of international trade from conventional to digital impacts several things, including resolving international trade disputes. In order to realize an efficient and effective dispute resolution process, many countries have implemented ODR to settle international trade disputes. This study aims to analyze the implementation of ODR in various countries and examine issues with unclear guidelines based on international law. This research observes the development of ODR in Indonesia and the urgency for its implementation in Indonesia. The research is normative juridical, with a statutory and comparative approach. The results obtained in this study are model law arrangements relating to the standardization of ODR Providers aimed to protect the personal data of the parties, unification of ODR dispute resolution clauses, and formulation of national legal instruments to create legal certainty regarding ODR, including ODR proceedings, permits, and monitoring, as well as recognition and execution process of electronic ODR decisions.

EU resilience in investment protection: a case for revisiting and reinforcing the loyalty principle in EU external relations

Abstract This article explores the concept of European Union (EU) resilience in the area of investment protection and Investor–State dispute settlement. The article adopts a functional approach to investment protection and suggests that reforming dispute settlement procedures in line with current Commission initiatives is key to promoting open strategic autonomy for the EU. Support for those initiatives is however weak, also among EU Member States. It is argued that EU resilience requires new tools for more unity and coherence in external EU action, both generally and for the reform of Investor–State dispute settlement in particular. The tool devised here is an increased loyalty standard coupled with a justification test, based on both a modernized comprehensive reading of loyalty obligations in primary law and the effectiveness principle and rationale as applied in case law. The novel approach promises significantly better results in terms of commanding coherence in external action while fully respecting the principle of conferred powers. It challenges traditional power dynamics, but incorporates a bold vision for external EU action that is truly autonomous and assertive.

Analyzing MT Arman 11 Case: Dispute Settlement in Seizure of Ship's Action under International Law

Analyzing MT Arman 11 Case: Dispute Settlement in Seizure of Ship's Action under International Law

Regional Imaginations of Peace: The Work of the Rio Committee and the Antecedents of the Pact of Bogota (1942–1947)

Abstract This contribution re-describes the work of the Rio Committee in international law concerning dispute settlement in the Americas between 1942 and 1947. The work of the Rio Committee constitutes a crucial doctrinal and institutional experience that underpins the fundamental transformations experienced in Pan-Americanism considering the meeting of the Ninth International Conference of American States in Bogota, Colombia, in 1948, which led to the creation of the Organization of the American States. As an antecedent to the adoption of the Pact of Bogota in 1948, the doctrinal work of the Rio Committee and its draft treaties allow for a substantive interrogation of the complex relationship between regionalism and universalism in international law. More specifically, this article assesses the ways in which mechanisms of peaceful settlement of disputes in the Americas were accommodated under the universal legal framework of the United Nations, opening space for regional cooperation to continue evolving in the continent.

Prospects of the Development of Online Settlement of Disputes Including the Ones over Land Law Matters

Prospects of the Development of Online Settlement of Disputes Including the Ones over Land Law Matters

Параллельное судопроизводство в международном инвестиционном праве

This article is devoted to the legal problems arising in connection with the conduct of parallel proceedings in cases related to the protection of foreign investments before two bodies: international investment arbitration and the WTO Dispute Settlement Body. The objective of this paper is to investigate the possibility of simultaneous consideration of a dispute in international investment arbitration and the WTO Dispute Settlement Body, as well as analyze consequential risks. The author concludes that this phenomenon is dangerous for international law, as it not only destabilizes the international legal order in the field of investment, but also does not meet the needs of the foreign investor.

Impacts of deep trade agreements on trade and welfare – An application to China joining the RCEP and CPTPP

Using a quantitative trade model, this paper evaluates the trade and welfare effects of deep trade agreements in an application to China joining the RCEP and CPTPP. By feeding trade cost shocks from the changes in RTA deepness into the model, we find substantial gains from incorporating legal enforceability and dispute settlement provisions in both agreements. With the CPTPP being deeper than the RCEP, our counterfactual exercise of China joining the CPTPP shows that 69% of its welfare gains come from deepening RCEP provisions to the CPTPP level. For the RCEP members, the gains from deepening non-tariff-related core provisions are quantitatively important.

Is Compulsory Jurisdiction Under UNCLOS Part XV Expanding? A Critical Review of the Claims

A recent criticism of international courts and tribunals that have seized jurisdiction under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS or the Convention), is that they have attempted to expand their jurisdiction beyond the limits conferred by the Convention. This article calls such criticisms into question. Most of all, this article raises doubts over what exactly “expansion” of jurisdiction means. Although many scholars claim that Part XV tribunals “expand” their jurisdiction, none of them clearly defines the meaning of such “expansion.” In addition, their arguments focus solely on a few widely known and controversial cases. Lastly, in focusing on and arguing solely about the expansion of jurisdiction, they run the risk of oversimplifying the overall contributions of Part XV tribunals to Part XV rules on dispute settlement procedures, meaning that other points that merit further study remain less noticed. The aim of this article is to reassess the recent criticisms of the expansion of compulsory jurisdiction under UNCLOS Part XV. This will complement existing scholarly works and provide the opportunity to investigate a different perspective when appraising judicial practice concerning the exercise of compulsory jurisdiction under UNCLOS Part XV.

A framework of African Continental Free Trade Area dispute settlement mechanism: legal challenges

Abstract African countries have recently signed an ambitious and progressive trade pact titled the African Continental Free Trade Area (AfCFTA) agreement. The agreement establishes a free trade area, which also includes a dispute settlement mechanism (DSM). African countries further agreed on the Protocol on Rules and Procedures on the Settlement of Disputes to establish and regulate the process of the DSM. The Dispute Settlement Body formally launched its business on 26 April 2021. The Agreement and the Protocol are the first of the kind in the continent and are on the verge of implementation. Given that, the article examines the AfCFTA Agreement and the Protocol on Rules and Procedures on the Settlement of Disputes. Accordingly, the article finds that the Agreement and the Protocol involve some legal challenges that will constrain the efficacy of the DSM in the continent.

From Confrontation To Coexistence: An Appeal Opt-Out Arrangement As An Inclusive Approach To Revive The WTO Dispute Settlement System?

Resolving the crisis in the dispute settlement system is a priority issue for the reform of the World Trade Organization (WTO), and Members have made sustained efforts in this regard. Since the Twelfth Ministerial Conference (MC12), discussions on the dispute settlement system have entered a new phase, focusing on facilitator-organized meetings and proposals from Members. The reform negotiations have made some progress, but still face a number of significant challenges, in particular with regard to the appellate procedures. It is highly uncertain whether a comprehensive solution can be reached by 2024 as mandated by the MC12. Taking into account the different positions of Members and the imminent approach of the Thirteenth Ministerial Conference (MC13), this paper recommends that Members show more pragmatism and flexibility, puts forward a compromise proposal to establish a multilateral arrangement that would allow Members to opt out of the appellate review process under the Understanding on Rules and Procedures Governing the Settlement of Disputes ( DSU), and argues that this could be conducive to restoring a fully and well-functioning dispute settlement system. WTO, Appellate Body Crisis, Dispute Settlement Reform, Opt-out Arrangement

Article: A Case Note on the ICSID Tribunal’s Decision in Hydro and Others v. Albania: Indirect Expropriation and Proportionality

This case note delves into the complexities of balancing state regulatory authority and investor protections in the context of indirect expropriation, as exemplified in Hydro and Others v. Albania. The commentary scrutinizes the inherent structural bias of the Tribunal, which favoured the sole effects doctrine over the police powers doctrine, thereby slanting the scale towards investor interests. This focus often leaves states defending not just the merits of their regulations but also the extent to which these regulations impact the investor, shifting the tribunal’s attention from regulatory intent to merely quantifying investor detriment. Building on the notion of managerialism, the note argues that this bias makes it challenging for the Tribunal to shift away from its initial pro-investor stance. To restore balance, the commentary advocates for a framework guided by the police powers doctrine, enriched by the principle of proportionality. The note concludes by discussing the ramifications of continued bias, including the erosion of the regime’s legitimacy, evidenced by several countries, including Albania, reconsidering or severing their affiliations with the International Centre for Settlement of Investment Dispute (ICSID), thus signaling an urgent need for recalibration to preserve the legitimacy of the international arbitration regime. Indirect Expropriation, Legitimacy Crisis in Investment Arbitration, Sole Effects Doctrine, Police Powers Doctrine, Structural Bias, Principle of Proportionality, Host State Sovereignty, Investor Protection, Balkans in International Investment Arbitration, Managerialism