Economic Disputes Research Articles

On reforms of economic judiciary in the light of new concepts

The article examines the problems of reforming the judicial system, taking into account the «Concept of reforming the judicial system with the aim of improving access to justice», presented in July 2023 by the Research Service of the Verkhovna Rada of Ukraine. Positive expectations from the liquidation of commercial courts of first and second instance are denied. It is emphasized that the introduction of sections for consideration of economic disputes at local courts will lead to the degradation of judicial standards demonstrated by economic courts, including compliance with procedural terms.The possibility of solving the problem of excessive burden on local courts by increasing the burden on specialized judges, which will only lead to a decrease in the quality of justice in economic litigation, has been refuted. More reasonable measures to simplify court procedures and promote out-of-court resolution of legal conflicts, as well as to fill the numerous vacancies of local court judges, are justified.Solving the problems of the judiciary is connected with overcoming the shortcomings of the procedural codes and anti-corruption policy of the state, and not with the structuring of judicial bodies.The priority objects of judicial reform have been identified: restoration of public trust in the judicial branch of government, compliance with the deadlines for consideration of cases in the system of general and administrative courts, compliance with the principles of independence of judges from state bodies, proper financing of the court apparatus and decent remuneration for the work of assistant judges and secretaries, prevention of groundless lawsuits and self-limitation of state bodies in violating the rights of private individuals, prevention of abuse of state bodies in appealing court decisions, introduction of a mechanism for mass mediation, insufficient stimulation of alternative dispute resolution methods capable of reducing the number of court cases.It is proposed to use the experience of international commercial arbitration in the improvement of economic justice.

The Politics and Economics of Brazilian Competition Law

Against the renewed international debate on the relationship between competition law and wider social and economic goals, this paper examines the underpinnings of Brazilian competition law. It describes the evolution of the law against the backdrop of the wider transformations in capitalism, and reveals how legal, political, and economic disputes – both domestically and internationally – have shaped its design and implementation. The paper argues that while the foundation of modern Brazilian competition law can be found in a progressive Constitution and in principles that guide the economic order towards the promotion of substantive justice, competition enforcement and scholarship in Brazil have been gradually decoupled from the promotion of socioeconomic rights. This insulation of Brazilian competition practice from wider socio-political concerns was deeply influenced by the epistemological assumptions and the economic methodology of the Chicago School, that have directed competition – in the US and in other jurisdictions – towards formalist notions of efficiency.

Bilateral Conflict: An Experimental Study of Strategic Effectiveness and Equilibrium

AbstractBilateral conflict involves an attacker with several alternative attack methods and a defender who can take various actions to better respond to different types of attack. These situations have wide applicability to political, legal, and economic disputes, but they are particularly challenging to study empirically because the payoffs are unknown. Moreover, each party has an incentive to behave unpredictably, so theoretical predictions are stochastic. This article reports results of an experiment where the details of the environment are tightly controlled. The results sharply contradict the Nash equilibrium predictions about how the two parties’ choice frequencies change in response to the relative effectiveness of alternative attack strategies. In contrast, nonparametric quantal response equilibrium predictions match the observed treatment effects. Estimation of the experimentally controlled payoff parameters across treatments accurately recovers the true values of those parameters with the logit quantal response equilibrium model but not with the Nash equilibrium model.

SETTLEMENT OF SHARIA ECONOMIC LEGAL DISPUTES INDONESIA'S POSITIVE LEGAL PERSPECTIVE

This study discusses sharia economic law, where currently economic growth has developed greatly in accordance with the current era, so that people also find it difficult to solve Islamic economic problems. The focus of the problem in this study is how to solve economic problems in sharia economic law from the perspective of Indonesian positive law? The purpose of this study is to find out how to solve economic problems using the classical tradition. The type of research used is library research using a juridical approach. And research results This found that in finish problem economic dispute sharia perspective Indonesia's positive law can be pursued in several ways, namely peace and Alternative Dispute Resolution (ADR) and arbitration (tahkim).

PENYELESAIAN SENGKETA EKONOMI SYARIAH WANPRESTARSI SECARA NON LITIGASI BAIK YANG DIATUR HUKUM POSITIF, HUKUM ISLAM DAN HUKUM ADAT

This research is motivated by the birth of Law No. 3 of 2006 on the amendment of Law No. 7 of 1989 on religious courts that have added authority to the religious courts in the field of sharia economics. Researchers want to know what are the ways to resolve economic disputes Sharia default in non-litigation both regulated punishable poitif, Islamic law and customary law. This research is a type of literature study or in the world of law is called juridical-normative legal research. This study shows that alternative dispute resolution with non-litigation model has several types and parts, including positive law such as Alternative Dispute Resolution, arbitration, and settlement of Sharia economic disputes through consumer institutions. Among them is the religion of peace and Justice.

Penyelesaian Sengketa Ekonomi Syariah Ditinjau dari Peraturan Mahkamah Agung Nomor 14 Tahun 2016 dan Hukum Islam

The many problems of sharia economic disputes have not all been resolved because the judges who resolve the problems of sharia economic disputes are not special judges who are capable and certified in handling sharia economic disputes. For this reason, this thesis was created to answer this problem, consisting of two problem formulations, namely: What are the Procedures for Settlement of Sharia Economic Disputes in View of Supreme Court Regulation Number 14 of 2016 and Islamic Law? The type of approach method used is qualitative method or literature study whose research uses written data such as books, journals, papers, as well as decisions of the Supreme Court and laws, or from document to document related to this research. From the results of this study it can be concluded that in the settlement of Islamic economic disputes in terms of Perma No. 14 of 2016 it is carried out in two ways, namely simple lawsuits and ordinary lawsuits while in Islam it is carried out by means of peace, arbitration, Al-Qadha.

Принципы договорного права в современных условиях цифровизации общества (на примере судебной практики США)

The article is devoted to the role of the principles of contract law in the cases arises from economic disputes in connection with the use of current digital technologies by the parties of the contract. Based on the analysis of different US court decisions, the author makes several scientific proposals. The most fundamental of them is that the digitalisation of society and the emergence of new relationships does not prevent the application of the principles of contract law. At the same time, the principles might be filled with special content and understanding. In such circumstances, the interpretation of the principles of contract law is essentially vital. There is a good example of the successful attempt of this type of interpretation. Having examined the interface and design of the corresponding online platform, the court of the USA determined the fact of consent to the terms of the user agreement according to the principle contractual freedom. It is a very useful approach for the Russian practice as well. Based on the principles of contract law, the US courts formulate the substantive part of the decision. Furthermore, they do creatively approach the establishment of a model for regulating emerging relations in the digital economy. The creatively approach of courts should not be useful in Russia according to the traditions of the continental system of law. However, it should be used by the legislative power. In order to establish an affective regulatory model, it is necessary to take into account not only economic feasibility and technical features. First of all, we have to rely on the principles of law. Unfortunately, it is not always obvious in Russia.

Добросовестность при исполнении контрагентом договорных обязательств, на примере договора НИОКР

The postulate embedded in the civil legislation – good faith in actions – as a parameter that models the behavior of participants in civil turnover stimulates the development of behavior in which none of the participants in the obligation can take advantage of deliberately maneuvering in a situation of regulatory gaps. Representing an evaluation category without clear criteria, the content of the principle of good faith is formed under the influence of legal doctrine and law enforcement practice. In the conditions of a legal gap in regulating the time of an R&D contract performance and the acceptance of the result of the work performed, the customer’s bad faith, expressed in delaying the acceptance of the work, or the refusal of the results on far-fetched pretexts, is not uncommon. The purpose of the research is to study the legislative and law enforcement aspects of the customer’s unfair behavior in R&D contracts at the time of their execution, as well as to develop proposals for improving civil legislation. Methods. The methodological framework for the research is a set of methods of scientific cognition, among which the main ones are analysis, synthesis, generalization, and comparative jurisprudence. Results. In the activities of companies related to the performance of work under R&D contracts, the problem of the customer’s bad faith at the time of contract execution and the acceptance of the work performed belongs to the category of urgent, as numerous judicial practices abound. Proactive, preventive measures on the part of the contractor, expressed in a more detailed elaboration of the terms of the contract, do not have a positive effect and are not a guarantee of the contractor’s security. The author analyzes the current judicial practice on economic disputes for the possibility of applying the rules on the analogy of the law in the conditions of the gap in the civil legislation on the unilateral signing of the act (Chapter 37 of the Civil Code of the Russian Federation). Currently, there are two polar approaches in the legal realization sphere: 1) the rule on signing an unilateral act as a highly specialized one can be applied exclusively in the form of a construction contract (negative approach); 2) following the principles of fairness and reasonableness enables the contractor under an R&D contract to apply the provisions of Article 753 of the Civil Code of the Russian Federation to protect his interests (positive approach). Conclusions. The existing legislative gap in the formation of diametrically opposite ways of resolving judicial conflicts and the duality of judicial practice should be resolved exclusively at the legislative level by amending Paragraph 1 of Chapter 37 of the Civil Code of the Russian Federation. In particular, Paragraph 2 of Article 720 of the Civil Code of the Russian Federation should be supplemented with the following content: “The submission of the working results by the contractor and its acceptance by the customer are executed by an act signed by both parties. If one of the parties refuses to sign the act, a note about it is made therein, and the act is signed by the other party.”

Conscientiousness and reasonableness in resolving the issue of releasing a citizen from debts in the bankruptcy procedure (statement of the problem)

The article is devoted to finding an answer to the question of what criteria of good faith and reasonableness the behavior of a citizen-debtor must meet in order for him to be released from fulfilling his obligations upon completion of the consumer bankruptcy procedure. The article attempts to answer questions about what conscientiousness and reasonableness are; whether there are clear standards for recognizing a debtor in good faith in a consumer bankruptcy proceeding; what problems does law enforcement practice face after the formulation by the Supreme Court of the Russian Federation of the position that the unreasonableness of the debtor does not mean his bad faith in resolving the issue of releasing him from debts upon completion of the bankruptcy procedure, expressed in the Ruling of the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation dated 06/03/2019 № 305-ES18-26429 in case № A41-20557/2016. In particular, the author analyzes extremely topical issues related to the release of a citizen debtor from debts arising from a guarantee for business loans, as well as an assessment of the purpose of attracting credit funds as a tool for analyzing the debtor's good faith.

Sharia Economic Dispute Settlement at the Bengkulu Religious Court Case Study Case Decision Number 0161/Pdt.G/2017/PA.Bn

The purpose of this study is to examine the answers to problems regarding the settlement of sharia economic disputes in the bengkulu religious court case study case decision number: 0161/Pdt.G/2017/PA.Bn. This research is motivated by the increase in sharia economic growth today so that many sharia institutions have been born in Indonesia. Along with the development of Islamic financial institutions in Indonesia, there will be a tangent point with the judicial world, especially religious courts. The tangent point is in terms of dispute resolution, namely when there is a dispute between a shari'ah financial institution and its customers. The type of research used in this study is sociological or empirical legal research. Sociological or empirical legal research is legal research that obtains primary data and secondary data. The researcher found that juridically the decision number: 0161/Pdt.G/2017/PA.BN was in accordance with the legal procedures (procedural law) applicable in a religious court. In this regard, this study found an example of a case between a shari'ah financial institution and its customers that was disputed at the Bengkulu Religious Court with Case Number: 0161/Pdt.G/2017/PA.Bn.

Rule Of Reason dan Perse Ilegal dalam Penyelesaian Sengketa Ekonomi Syariah Perspektif Hukum pada Koperasi Syariah di Indonesia

This research aims to analyze the resolution of Sharia economic disputes in Sharia cooperatives using a contemporary Islamic legal approach, specifically through the Rule of Reason and Per Se Illegal approaches. The research method employed is a qualitative approach with a case study of several Sharia cooperatives in Indonesia. Data were obtained through in-depth interviews with relevant parties and analysis of documents related to the resolution of Sharia economic disputes. The findings indicate that common dispute resolution mechanisms used by Sharia cooperatives include consultation, mediation, and arbitration, with the Rule of Reason and Per Se Illegal principles serving as the legal analysis foundation. The Sharia Supervisory Board plays a significant role in ensuring compliance with Sharia principles in dispute resolution. However, there are some gaps in the implementation of dispute resolution, particularly in the application of fairness and balance principles. These gaps highlight the need for improvements and enhancements in the implementation of Sharia economic dispute resolution in Sharia cooperatives, taking into account the Rule of Reason and Per Se Illegal principles. This research provides insights into the practices and implementation of Sharia economic dispute resolution relevant to the needs and context of Sharia cooperatives in Indonesia, with a focus on the Rule of Reason and Per Se Illegal approaches in legal analysis. The research findings can serve as a basis for more effective policy-making in enhancing the resolution of Sharia economic disputes in Sharia cooperatives, considering contemporary Islamic legal aspects.

Seat of arbitration: problematic issues of theory and practice

The effectiveness of arbitration, as well as its attractiveness for disputing parties, depends more on the existing and developed legislative framework of the convention (ratification of numerous multilateral international legal instruments) and national arbitration legislation. It is the combination of these sources that guarantees the procedural autonomy of the arbitration, while significantly reducing the interference of national courts, In addition to the existence of mandatory and optional rules for the provision of such assistance in arbitration.
 Unfortunately, such a legal framework for the consideration of foreign economic disputes by international commercial arbitration may be too complex and even sometimes unclear and problematic. However, this ambiguity in the interpretation and understanding of the law of international commercial arbitration can be addressed by paying sufficient attention to the definitional apparatus, the assessment of the development and improvement of international and national regulationslegal acts that gradually depart from archaic approaches to the definition of regulatory law through more effective analysis.
 Thus, in this article special attention is paid to theoretical and applied problematic issues of determination of «seat of arbitration». Due to clear inconsistencies and uncertainty in the national legislation and enforcement activities of many countries regarding the place of arbitration, this leads to numerous «procedural traps» in considering applications for recognition and enforcement of the award of international commercial arbitration.
 The author pays special attention to the analysis of the legislative regulation of the place of arbitration in Ukraine. And, from the perspective of the jurisprudence of the European Court of Human Rights and the Supreme Court, conclusions are drawn regarding the corresponding contradictions in the definitional apparatus.

Investigating the implementation and performance of architecture in zero energy buildings in order to producing passive energy

Challenges in recent decades for humans and the rapidly changing planet. The increase in pollution and difficult access to energy despite the problems of war and political and economic disputes between countries and the rapid decrease in the amount of energy in the world, which with this growth rate, is a tangible danger for the whole world. It prompted scientists to look for new methods of energy production and consumption. In this article, we are looking for a topic of such projects, which are called zero energy buildings. As it is understood from the name of this project, the result of all energy consumption and production in these buildings must be zero or the energy production of the building should be more than its consumption, which is the concept of energy related to all the energy in the building such as thermal, electrical and ... which should be considered in the initial calculations and construction. For this purpose, this research, which is a descriptive analytical research, was conducted using library resources and electronic books and articles. We will review the execution and performance of architecture in zero energy building and concepts related to passive energy and building orientation for energy production, architectural components and materials of zero energy building, review the economic approach and leading challenges, construction and operation in connection with zero energy building. The results obtained from this research, zero energy buildings are faced with upcoming challenges such as technical knowledge, efficient and trained staff, and existing laws and regulations. Accordingly, the need to reduce energy consumption and optimize it is felt more and more. Zero energy buildings are the best solution to moderate energy consumption in housing. But reaching this goal has basic and fundamental needs that must be met.

Reconstructing Economic Self-Determination from the Third World Approach to International Law

International Law governing the relationship between states has been considered failed in reformatting the principle of economic self-determination (ESD) as a continual link of political self-determination in the post decolonisation era. Such situation has placed the principle to be a vague concept in terms of its meaning and application in current international law. Such situation has contributed to continual economic dependency of the Third World (TW) states on the first world as considered the more developed states. TW states face difficulty to develop their argument to demonstrate people national interest in current international economic context. Having utilised doctrinal and TWAIL approach, this paper argues that there has been a potential meaning of ESD which can be developed from fragmentation of documents in international law, particularly in the United Nations General Assembly Resolutions (UNGA resolutions), the Law of State Succession and the International Human Rights law. This meaning then shapes the fragmented sources to be a principle for TW to be used in their international economic relation, particularly in settling economic dispute relations with Western states.

Kompetensi Hakim dalam Gugatan Sederhana Sengketa Ekonomi Syariah di Pengadilan Agama Bantul

This study examines the competence of judges in simple lawsuits for sharia economic disputes at the Bantul Religious Court (Decision Study Number 2/Pdt.G.S/2019/PA.Btl). The focus of the research is the opportunity for disputes over objects that serve as collateral in multiservice ijarah financing agreements. The purpose of this study is to determine the competence or authority of judges regarding these sharia economic disputes. The research method used is a normative juridical research type, in which research is aimed at written regulations or legal materials in the form of court decisions, namely decision Number 2/Pdt.G.S/2018/PA.Btl. Sources of data in the form of decisions, laws and PERMA are outlined in the form of narrative descriptions, not transformed into numbers. Then analyzed deductively in accordance with the theoretical framework used. The results of this study are the defendant's guarantee cannot be executed because it is a land dispute and the judge is not authorized to examine and adjudicate the dispute, because land disputes cannot be resolved through a simple lawsuit. So that the case was crossed out from the case register at the Bantul Religious Court and could be re-registered to be resolved through an ordinary procedural lawsuit.

КОНКУРЕНЦИЯ ЕВРОПЕЙСКОЙ И БРИТАНСКОЙ ЮРИСДИКЦИЙ В УСЛОВИЯХ BREXIT

One of the features of the modern model of interaction between legal systems is the competition between national jurisdictions. The states use different methods to improve the efficiency of their courts in order to make their jurisdictions more attractive. The competition between jurisdictions is actively influenced by political processes. A striking example of the impact of politics on jurisdictional issues is Brexit. This article aims to consider the topical issues caused by the UK's exit from the single legal space of the EU in terms of the functioning of the civil justice system, the consequences of these processes for the mechanisms of choice of jurisdiction. Using the comparative legal method, this article explores the consequences of Brexit for Russian companies and Russia’s jurisdiction, including in connection with: a) the continuing practice of dispute resolution between Russian companies or Russian businessmen in London; b) the new conditions of competition between British and European, especially French, courts for attraction to their jurisdictions; c) the need for dispute resolution on a number of pressing issues, including those caused by the complicated geopolitical situation. The materials used include UK and European legal literature, the reports of the Council of the European Commission for the Efficiency of Justice and expert opinions of Russian and European lawyers. The conclusions include practical recommendations on how to improve the competitiveness of Russia’s jurisdiction and protect Russia's interests in the legal sphere. This article highlights the need to develop cooperation between the Russian court system and courts of the EAEU and EAEU countries, to create a system of economic dispute resolution courts, which would foster the transfer of important civil cases to the Russian jurisdiction or the jurisdiction of the EAEU.

Johan Pyre: ein Kaufmann und sein Handelsbuch im spätmittelalterlichen Danzig. Darstellung und Edition

This two-part work publishes for the first time the account book of the Hanse merchant Johan Pyre, a native of Danzig (Gdańsk) who traded in diverse wares with peers spanning northern Europe from King’s Lynn to Novgorod between 1421 and 1455. Orłowska’s impressive and expertly presented edition is accompanied by a substantial 448-page analysis of Pyre’s account book that not only sheds new light on commercial activity in the late medieval Baltic and North Sea, but also offers fresh insights into the credit mechanisms, trading conventions and accounting methods that underpinned the international trading networks in which Pyre played an active part for over three decades. What makes Pyre’s book especially valuable is that he traded at a challenging time, both for the Hanse and for his home city, offering a window on how periods of warfare and diplomatic crisis could influence, disrupt or divert international commercial activity. During Pyre’s lifetime the Hanse fought sporadically with Denmark between 1426 and 1441, and long-running diplomatic and economic disputes with Russian rulers could worsen unpredictably, such as in the mid-1420s when the grand duke of Novgorod imprisoned 150 Hanse merchants. At the same time, Danzig, perhaps the most important city in Prussia, witnessed a gradual deterioration of the Teutonic Order’s rule throughout the region in the early and middle decades of the fifteenth century that eventually culminated in the outbreak of the Thirteen Years War in 1454. As Orłowska shows, however, these regional and international political and diplomatic shocks did not prevent Pyre trading in wax, salt, iron, furs and clothing, among many other wares, with partners across the North Sea and Baltic world. As she also emphasizes, the political and diplomatic tension between the city of Danzig and the leadership of the Teutonic Order was not necessarily reflected in Pyre’s everyday life. Pyre’s account book records how he engaged in business with a range of individual officers from the Order and was even allowed on occasion to trade in Baltic amber, a precious commodity over which the Teutonic Order claimed a monopoly, but one that their officers clearly allowed to lapse when dealing with trusted partners such as Pyre.

Mediation Role in Solving Sharia Economic Dispute as Civilization Toward Ethical Value of Islam

<p>The aim of this study is to explain the role of mediation in solving sharia economy dispute as civilization toward ethical value of Islam. That it has been practiced since Rasulullah SAW era was through many ways such as shulh, tahkim, and qadha. This study uses qualitative method and data collection is got from observation, direct interview to justice, attorney, lawyer, mediator, and the disputants. Based on the result of the study above is known that the role of mediation in solving sharia economy dispute as civilization toward ethical value of Islam is important and needs to be optimalized. According to Rasulullah SAW teaching, in fact, in a practice, there is failure of mediation in solving sharia economy dispute because the disputants feel that they are right and want to win finally by litigation way with consent or default judgment. Otherwise, mediation practice gives benefits for the disputants and based on Indonesian culture and civilization because solving dispute through mediation can be solved fast, correctly, and cheaply, thus it does not take much energy, time, and thought. In a result, it can keep privacy, beneficial for parties, and harmless with the result made by parties themselves, that is “win-win solution”. In ethical value of Islam in solving sharia economic dispute, firstly, by al-shulh (peace). Peace in islam is recommended because if there is peace among disputants, they will avoid from hostility. If it does not work, it can be passed by al-tahkim (arbitration) and if it gets stuck, Islam teaches us by al-qadha (Court Process).</p>

MODEL PENYELESAIAN SENGKETA EKONOMI SYARIAH DI BADAN ARBITRASE SYARIAH NASIONAL

The importance of functioning BASYARNAS as a form of non-litigation sharia economic dispute resolution because it has many advantages compared to litigation settlement. Even though there are many advantages, there are still few sharia economic or business actors who use these institutions as an alternative to dispute resolution. This is due to the lack of knowledge and understanding of sharia business actors regarding the forms of settlement at BASYARNAS, so education and literacy are needed for sharia business actors. This study aims to explain the procedure for resolving sharia economic disputes at BASYARNAS. The method used is a qualitative method, a normative juridical approach with a juridical descriptive analysis. The results of this study conclude that the form of sharia economic dispute resolution at BASYARNAS is based on Law no. 49 of 2009 concerning Judicial Power, Law no. 21 of 2008 concerning Islamic Banking, Law no. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, and the 2005 BASYARNAS Procedure Regulations. The settlement procedure begins with a dispute resolution request to BASYARNAS followed by an examination process up to the reading of the decision by a sharia judge or arbiter

About non-federal justice Part II. World justice: the need to change the vector of legislative regulation

This article is the second in a series of author's articles devoted to the mechanism of non-federal justice . According to the author, after the adoption of the Federal Law “On magistrates in the Russian Federation” in 1998, almost all 23 amendments and additions to it led to the federalization of the Justice of the peace. The author suggests returning to its origins, roots, traditions – the time of the Judicial reform of the Russian Empire in 1864, when the world justice system was first created – based on a soundly developed legislative foundation. It is proposed to change the current vector of development of the legislative regulation of world justice from its federalization to its autonomization, its complete separation from the federal mechanism of justice. In particular: to transfer to the jurisdiction of magistrates the consideration of “minor” economic disputes; in sparsely populated areas to introduce mandatory election of magistrates; in all procedural codes to introduce provisions on simplification of judicial procedures for magistrates; the appellate and cassation instances should be created in the form of the appellate chamber of the district and the cassation chamber of the subject of the Russian Federation, consisting of magistrates who administer justice, respectively, in the district and the subject of the Russian Federation, etc.