Dispute Settlement Research Articles

Inter-State Communications before UN Human Rights Treaty Bodies: Testing the Waters for Collective Communications

Abstract The awakening of inter-state communications with the first ever three cases before the Committee on the Elimination of Racial Discrimination in 2018 has inspired new avenues of research about their potential and shortfalls. This article opens a new line of exploration, considering the mechanism’s potential as an avenue for collective action at a time when many States are responding to violations of international law, even when not directly affected by those violations. Those responses have included massive third-party interventions (Ukraine v Russia), and the initiation of proceedings before the icj by States not directly injured (The Gambia v Myanmar, Canada and the Netherlands v Syrian Arab Republic, South Africa v Israel). This article argues that enabling collective inter-state communications before UN treaty bodies could strengthen the mechanism as an avenue for treaty compliance and the protection of human rights, and for amplifying sovereign voices as part of peaceful dispute settlement processes.

The Lebanon-Israel 2022 Maritime Boundary Agreement

Abstract After over a decade of dispute settlement efforts, Israel and Lebanon reached an agreement to establish their common maritime boundary in October 2022. This agreement is a pioneering achievement in the region. It is the first maritime boundary agreement reached between two States that do not have diplomatic relations. The agreement solidifies the trend towards pursuing maritime delimitation and related arrangements over seabed resources in the Eastern Mediterranean Sea. This article analyses the legal nature and content of the Lebanon-Israel 2022 maritime boundary agreement and its implications for the tripoint delimitation of the overlapping maritime areas between Cyprus, Lebanon, and Israel.

Understanding mediation as an out-of-judicial procedure for the settlement of civil-legal and labor disputes

Understanding mediation as an out-of-judicial procedure for the settlement of civil-legal and labor disputes

Analysis of Dispute over Authority to Conduct Journalist Competency Tests Following Constitutional Court’s Decision No. 38/PUU/XIX/2021

This study discusses a dispute between the Press Council (DP) and the National Board for Profession Certification (BNSP) over the authority to conduct journalist competency tests (UKW) using Hans Kelsen’s and Hans Kaviasky’s Theory of Hierarchy of Law. This research was conducted through a qualitative approach using a normative judicial method in analyzing the Constitutional Court’s Decision No.38/PPU-XIX/2021 concerning the authority to conduct journalist competency tests. Secondary data of this research was obtained through literature and document studies. This research found that there has been no final clarification on the settlement of the legal dispute between DP and BNSP over the authority to conduct journalist competency tests following the Constitutional Court’s Decision No. 38/PPU-XIX/2021 rejecting in full the applicants’ plea. The legal implication of the decision is that both DP and BNSP can continue to conduct journalist competency tests respectively.

The 2022 ICSID Arbitration Rules: Modernizing International Investment Dispute Resolution

Abstract The new Arbitration Rules of the International Center for Settlement of Investment Disputes (ICSID), which came into force on July 1, 2022, replace the previous version in force since 2006. These rules seek to make the ICSID arbitration process more efficient and responsive, while maintaining the high standards that have made ICSID a respected forum for resolving investment disputes. The new rules reflect changes in international investment law and policy over the past decade, and also aim to address shortcomings of the previous system, such as lack of transparency and efficiency. New provisions have been introduced to simplify and speed up arbitration procedures, provide greater transparency, increase the legitimacy of arbitration processes and expand access to them. The new rules reflect the expectations of ICSID and its members for more efficient and transparent resolution of investment disputes and should facilitate the further growth of international investment and trade, as well as the resolution of disputes arising in connection with these processes.

Justifying the accusation

Abstract Accusations of trolling (deceiving participants about one’s communicative intention, conducted for amusement, Dynel 2016; Hardaker 2013) and bad faith (dishonestly denying a speaker’s committing meaning, de Saussure and Oswald 2009; Oswald 2022) abound in digitally mediated communication. The labels chosen by posters significantly impact the outcome of discussions, as accusations of trolling tend to result in more abrupt settlements of disputes compared to accusations of bad faith. However, proving these deceptive activities can be challenging for posters. As a result, they often substantiate the “bad faith” label by mentioning in their accusations what they perceive as strategies indicating their interlocutors’ bad faith. In this paper, I examine 161 accusations of trolling and bad faith gathered from a forum. The analysis draws on Hardaker’s (2010, 2013) research and proposes a comparison of the strategies mentioned in these accusations. The aim is to describe the ways in which posters justify the label they opt for when confronted with deceptive activities.

SIMPLIFICATION OF TRADEMARK DISPUTE RESOLUTION BETWEEN STATE ADMINISTRATIVE COURTS AND COMMERCIAL COURTS IN ACHIEVING JUSTICE

<table border="0" cellspacing="0" cellpadding="0"><tbody><tr><td valign="top" width="388"><p class="TableParagraph"><em>Trademarks are valuable assets for businesses that are legally protected, yet trademark disputes involving various parties often occur. The settlement of trademark disputes in Indonesia involves two different judicial institutions, namely the State Administrative Court (PTUN) and the Commercial Court, which have the potential to cause disparities in decisions, necessitating simplification efforts to achieve legal certainty and justice. The purpose of this study is to identify the problems that arise in the settlement of trademark disputes between the PTUN and the Commercial Court that hinder the realization of legal certainty and justice, as well as to formulate simplification efforts that can be carried out to achieve legal certainty and justice in the settlement of these trademark disputes. This research uses a normative legal research method with a statutory and conceptual approach, as well as using primary, secondary, and tertiary legal materials collected through literature and document studies. The data analysis technique used is a qualitative analysis of the legal materials obtained systematically and logically to answer the problem formulation and produce recommendations for simplifying dispute resolution. The research results explain that the main problem in the settlement of trademark disputes between the PTUN and the Commercial Court that hinders the realization of legal certainty and justice is the potential for different or contradictory decisions from the two judicial institutions in the same trademark case. This is due to the unclear division of authority, as well as the absence of clear rules regarding the authority of each judicial institution in handling trademark disputes. To achieve legal certainty and justice, efforts that can be made include revising the Trademark Law to clarify the authority of the judicial institutions, regulating alternative dispute resolution mechanisms, increasing coordination and synergy between relevant institutions, increasing the capacity of judges, and establishing an independent and integrated special trademark court.</em><em></em></p></td></tr></tbody></table>

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.

Politics Legal Regulation of the Supreme Court of the Republic of Indonesia (Perma Ri) Number 2 of 2019 as a Guideline for Suits for Unlawful Acts Against Government Agencies And/Or Officials

The Supreme Court has issued PERMA No. 2 of 2019 concerning Guidelines for Settlement of Disputes on Government Actions and the Authority to Adjudicate Unlawful Acts by Government Agencies and/or Officials (Onrechmatige Overheidsdaad), with the aim of being a guideline in terms of the authority to adjudicate onrechtmatige overheidsdaad cases, as well as as statutory provisions and regulations in terms of governance method of resolving disputes regarding unlawful acts committed by government agencies or government officials, which has now become the absolute authority of the State Administrative Court (PERATUN). Regarding Legal Politics, the issuance of PERMA No. 2 of 2019 is important to study and research, because it has created a new "legal situation" and "legal consequences", namely regarding the authority to adjudicate overheidsdaad cases that are onrechtmatige, as well as regarding legal provisions regarding dispute resolution procedures against the government. From this research it can be concluded that with the enactment of PERMA Regulation No. 2 of 2019, cases of unlawful acts by government agencies and/or officials, which previously fell under the authority of the general judiciary to be examined and tried in the District Court, but are now expressly regulated. Becomes the authority of PERATUN and is tried at the State Administrative Court, so its implementation actually still requires improvements, so that in the future it can be implemented even better.

Right to Sue (Citizen Law Suit) Air Pollution as an Alternative Dispute Settlement

A good and healthy environment is a human right of every Indonesian citizen. The mandate of the 1945 Constitution is not obtained by citizens as they should. The proof is that high air pollution, such as air quality in some areas, causes environmental damage. As for the negative impact of air pollution, in addition to material losses, it also causes immaterial losses in poor air quality. Facing the occurrence of environmental damage due to air pollution in the city of Jakarta, citizens have the right to sue the government as state administrators who have neglected to protect the rights of their citizens, as regulated in Article 91 paragraph (1) and (2) of Law no. 32 of 2009. The results of this study are that the Citizen Lawsuit lawsuit becomes a forum for the community if they experience losses due to pollution and environmental damage. This Citizen Lawsuit lawsuit only asks for accountability for Government policies that result in losses for citizens, such as the lawsuit filed by the Optimistic Capital Coalition on Number 374/Pdt.G/2019/Pn.Jkt.Pst which was received by the Panel of Judges in 2021.

Mediation as an effective way to settle economic disputes: Current experience and prospects for development

The mediation procedure is considered the most effective method of settling business conflicts in the system of alternative ways of dispute resolution through the prism of fundamental principles. The article reveals the advantages of settling cross-border economic disputes through mediation, including out-of-court procedures. The article examines doctrinal approaches to the mediation procedure, analyses the main problems of its unpopularity in the country and suggests ways to improve it and popularize it in Russian society through amendments to the mediation legislation, such as the legislative establishment of the term “mediation” and a uniform approach to the mediation procedure itself, including the requirements to the mediator’s identity and responsibility, as well as the exclusion from the legislation of the possibility of conducting mediation on a non-professional basis. The author pays special attention to the role of the judicial community in the development of mediation in the settlement of disputes in court.

The Integration of the Western Balkans Into the EU

Abstract This article examines the intricacies of European integration for Western Balkan countries, exploring the unique challenges each state confronts on its path to EU membership. It delves into the political, legal, and diplomatic reforms required, emphasizing the pivotal role these play in aligning with EU standards. Bosnia and Herzegovina, North Macedonia, Serbia, Montenegro, and Kosovo are analyzed in terms of their distinct obstacles, such as internal political stability, judiciary reforms, dispute resolution with neighbors, and anti-corruption efforts. For instance, North Macedonia’s settlement of a historical name dispute with Greece underscores the importance of diplomacy in the region. Serbia’s bid for membership is complicated by the necessity to normalize relations with Kosovo amidst internal and external tensions. Montenegro’s recent political transitions illustrate its dedication to democratic principles and Euro-Atlantic alliances as it pursues EU accession. Kosovo’s journey is marked by its unique international recognition issues and the implications of recent EU sanctions following ethnic conflicts. The article argues that while progress has been made, the EU accession journey for these nations will require sustained commitment, comprehensive reforms, and adept negotiation to surmount the hurdles ahead. It is through such concerted efforts that the Western Balkan countries can advance towards achieving their EU membership goals, with the collective process shaping the region’s European perspective and integration.

The history of the establishment of organs for fact-finding in the resolution of international disputes

The paper traces the historical background of the formation and development of the institution of international fact-finding. As a result of the progressive development of international law, the institution of international investigation emerged at the turn of the 19th and 20th centuries, first receiving its international legal consolidation in the Hague Convention on the peaceful settlement of international disputes of 1899. The history of establishing fact-finding bodies by states, which acted as parties to disputes based on factual issues, both at the universal and regional levels, is examined. The practice of resorting to investigation procedures within international intergovernmental organizations such as the League of Nations, the UN, ILO, ICAO, the World Bank, the EU, and others is considered. In the modern period of international law, the fact-finding procedure has gained quite extensive use and is implemented in a more primitive form, especially within the activities of the United Nations. The UN establishes international commissions (composed mainly of individuals who are not citizens of the parties to the dispute or participants in the situation) authorized, as often happens, not only to establish facts (conduct investigations) but also endowed with broad competence to provide conclusions on legal issues and recommendations for dispute resolution or situation. The UN also uses the international investigation procedure in conjunction with other international mechanisms for dispute resolution. Referring to international bodies for fact-finding, as one of the means of peaceful settlement of international disputes, was first provided for by the Hague Conventions on the peaceful settlement of international disputes of 1899 and 1907. Therefore, the existence of various nature international investigating commissions - from "pure" fact-finding in the Tigre case to investigations regarding the Red Cross and the Letellier and Moffitt case, which were close to arbitration.

Regional Head Discretion Against Disharmony Between the Head of Service and the Regional Secretary in Cianjur Regency: reviewed from Law No. 30 of 2014 concerning Regional Government

The legal authority given to public officials is the responsibility of the position as the head of the Regional apparatus to provide appropriate legal information. The purpose of this study is to understand the regulations related to the Discretion of the Regional Head of Cianjur Regency so as to create a harmonious, clean and free government from all forms of corruption. Normative Juridical is the chosen research method, through a field approach and analyzed based on theory and comparative. The results of this study conclude that Law No. 30 of 2014 on Local Government explains how to use common sense, the concept of the right to reason as a middle ground between the weaknesses of the legal system and legal opportunities. As a state that adheres to the doctrine of the welfare state, the rule of law can play the highest role in protecting people's welfare. As the Local Government Law does not specifically regulate the settlement of disputes between public officials, mediation is the main way to unify perceptions based on Law No. 8 of 2003 concerning Guidelines for Regional Apparatus Organization whose task is to support the leadership of local government through policies and the main task of assisting Regional Heads in managing local government infrastructure, finance, equipment and facilities. The general principle of good governance so that in rational decision making as a responsibility of the position and personal responsibility.

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.

What to do With Cross-Border Environmental Pollution: Legislative Aspects

Abstract – Environmental torts and possibility of trans-border dispute settlement thereof has gained significant prominence in the recent years. Cases such as Urgenda foundation v the State of the Netherlends, Milieudefensie et al. v. Royal Dutch Shell plc., ClientEarth v. Enea, Neubauer et al. v. Germany demonstrate that environmental tort cases can be brought by stakeholders globally rather than relying on involvement of a relevant national responsible authority. EU climate policy of decreasing GHG emissions and the ambitious target of reaching climate neutrality by 2050 has resulted in a rapid development of environmental law. Thus, environmental regulation is becoming increasingly complex and possible breaches may cause serious legal consequences affecting everyone not just selected individuals or states. These developments could possibly lead to a necessity of a forum or rules where any natural person or an NGO could bring a claim against a state or multinational corporation which engages in illegal activities causing harm the environment on a global scale. Using litigation as a tool to empower society to stand against environmental wrongdoers may serve as a deterring factor to maintain order when it comes to environmental regulation. While such reasoning may seem farfetched and extreme, nevertheless it still raises a question of current regulation on determination of jurisdiction and the applicable law and whether it would be possible to benefit from developing these rules. By engaging in a systematic literature analysis identifying the relevant terms, the research shall explore the basic principles of private international law in relation to assigning jurisdiction and determining applicable law in claims concerning environmental torts. The research shall develop a methodology with the aim of covering and identifying a wider range of problems related to the determination of jurisdiction and application of law in cross-border environmental tort claims. Some of the main issues concern the determination of defendants in cases involving multinational corporations, multi-claimant cases, and the compensation of indirect damages. An exploration of material aspects in the developments of the current EU regulation and guidelines shall be analysed in conjunction with the aforementioned notion. The result of the study not only will reflect the specifics of the application of the Brussels Ibis Regulation and Rome II regulation in cross-border environmental torts, but also how the EU environmental regulation could potentially promote corporate responsibility and environmental protection. Thus, developing research on interaction between private international law and environmental law. Keywords - environmental tort, SEG emissions, jurisdiction, applicable law, cross-border pollution

Actual Problems of Application of Insurance Legislation in the Cassation Practice of the Supreme Court of the Russian Federation

The article deals with law enforcement acts in an extremely relevant and conflicting sphere of public relations: in the field of insurance. The main categories of such cases are highlighted, both in property insurance and in personal insurance. The practice of consideration by the Supreme Court of the Russian Federation of disputes in the field of insurance is analyzed, the conclusion is made about the high importance of the acts of the Supreme Court of the Russian Federation on the settlement of insurance disputes in order to achieve uniformity of judicial practice, introducing certainty in the application of insurance legislation, ensuring a balance of interests of the parties to the insurance contract.

The Construction of the RCEP Investment Dispute Settlement Mechanism: Currentcy, Dilemmas and Solutions

The signing of RCEP signifies the official launch of the world’s largest and most promising free trade area in terms of population, playing a positive role in promoting regional trade, investment, and economic growth. Currently, based on the resurgence of neo-Calvinism, legitimacy crises in ISDS mechanisms, and the absence of ISDS mechanisms in RCEP, member countries are beginning to reexamine the RCEP investment dispute settlement mechanism. Overall, the RCEP investment dispute settlement mechanism fails to effectively balance the interests of host countries and investors. Therefore, based on comparative analysis of existing investment dispute settlement mechanisms, it may be advisable to explore establishing a new ISDS mechanism for RCEP that integrates both preventive measures and back-end mechanisms.

Study on the Legal Regime of Energy Corridor Governance under the "Belt and Road" Initiative

The "Belt and Road" is closely linked to the concept of a community of shared destiny, and involves political, economic, cultural, energy and other aspects of cooperation between China and the countries and regions along the route, of which energy cooperation is an important part of the "Belt and Road", and energy corridors are the focus of sustainable cooperation in the energy sector. Energy cooperation is an important part of the "Belt and Road", and energy corridors are the focus of sustainable energy cooperation. The energy corridors of the "Belt and Road" are cross-border energy transport corridors, which face greater risks due to their long mileage, large-scale investment and long cycle. However, there is no unified international energy organisation, and international energy laws and regulations are scattered in various international treaties, which makes the system confusing and fragmented, and fails to meet the needs of energy corridor governance in the context of the "Belt and Road" initiative. This paper gives relevant suggestions on the improvement of the legal system for the governance of international energy cooperation corridors in the context of the "Belt and Road" Initiative from four aspects: improving the legal basis, clarifying the main body of responsibilities, clarifying the jurisdiction, and improving the dispute settlement mechanism. It provides theoretical support for the improvement of the legal system of energy corridor governance in the context of the "Belt and Road" initiative, and promotes the construction of the "Belt and Road" regional energy community of destiny.

Making Something Out of (Almost) Nothing?

Abstract With an ever-increasing number of reports denouncing systematic mistreatments against Uyghurs and other Muslim ethnic minorities detained in Xinjiang ‘re-education’ camps, the time is ripe for the international community to explore possible judicial and quasi-judicial avenues to hold China to account. Excluding from the present analysis unilateral sanctions, as well as possible investigations and proceedings before international criminal tribunals, this article focuses on the role of inter-State human rights communications in securing justice. Given China’s enduring reluctance to engage in dispute settlement mechanisms – particularly by formulating reservations to compromissory clauses enshrined in human rights treaties –, the quest for accountability poses significant challenges. By broadening the inquiry to alternative avenues, such as the inter-State quasi-judicial communication procedure under both the icerd and the ilo’s Constitution, as well as addressing the feasibility of requesting an icj’s advisory opinion as an inter-State case in disguise, it is still possible to envisage narrow pathways that might be worth pursuing.