Form Of Dispute Resolution Research Articles

Treaty Interpretation In Investment Arbitration by J. Romesh Weeramantry

Arbitration of International Business Disputes – Studies in Law and Practice by William W. Park. Published by Oxford University Press, 2012, 2nd Edition, ISBN 978-0199657131 (904 pages) According to the Chief Justice of the US Supreme Court, ‘every lawsuit is a story’, suggesting that every book – and perhaps every book review – should also have a narrative through-line.1 Given such august advice, it is perhaps not inappropriate to begin this review essay with a phrase made familiar by the Brothers Grimm: once upon a time … 2 Once upon a time, international commercial arbitration was viewed by the legal and business communities as a brash young upstart, an innovative but somewhat untested ‘alternative’ to more legitimate forms of dispute resolution: the prince to litigation's king, to coin a Grimmian metaphor. Over the course of several decades, as arbitration's benefits became increasingly well-known and well-respected, courts, commentators and counsel began to change their beliefs about the legitimacy of the procedure. Today, arbitration no longer constitutes an ‘alternative’ to litigation, but is instead the preferred means by which to resolve legal disputes in cross-border commerce.3 Just because something is popular does not mean that it is also mature, however, as any observer of the music and entertainment world can attest. Therefore, those who wish to determine whether arbitration has evolved into a mature form of dispute resolution must look beyond mere usage levels. One way to determine the maturity of a particular area of law is to consider the number and quality of judicial decisions rendered in that particular field. Based on this criterion, international commercial arbitration has done very well, since arbitral matters have been considered thousands of times over by courts from around the world, generating a vast body of increasingly sophisticated jurisprudence.4 Arbitral tribunals have generated an even greater number of arbitral awards, which are often made publicly available in denatured (depersonalized) form.5 A second method of gauging the maturity of …

Mediation, the Legal Aid, Sentencing and Punishment of Offenders Act of 2012 and the Mediation Information Assessment Meeting

On 1 April 2013, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act of 2012 (LASPO) was enacted. This act incorporates substantial reforms to legal aid and removes access to funding in many areas of private law including those that relate to disputes arising during and after separation/divorce. One of the few exceptions to the non-availability of legal aid is where domestic violence (abuse) is present in the intimate relationship. Specifically within this act is an expectation for all ‘couples’ to either consider or propose using mediation or other forms of dispute resolution to resolve their legal disputes, by attending a Mediation Information Assessment Meeting (MIAM). Legal aid will be available for the MIAM and mediation to those who are assessed as eligible. Drawing on data from a small qualitative study of the practice of family mediators during these meetings, it is suggested that, although the mediators observed screened for domestic violence and the amount of time this screening takes is established, the question of how effective that screening is remains unanswered.

The Application of Sulh in Resolving Community Disputes

Sulh is a method of dispute resolution in Islam through a third party provided by the Quran. The Malays had from the time of Malacca Sultanate practised amicable settlement or mediation to resolve their disputes. Even though, it was not called Sulh directly, the principles are the same. However, the practice of this traditional dispute resolution method faded upon the introduction of Charter of Justice in Malaya. Consequently, the period of court proceedings or litigation has begun. After 50 years of independence, now the government is promoting amicable settlement or mediation as a method of dispute resolution. Perhaps, the effort is to revive the traditional method of dispute resolution in a new form, i.e., formal or institutionalise dispute resolution. This paper will refer to the practice of Sulh during the time of the Prophet (peace be upon him) and his companions and the amicable settlement practised by the Malays to promote application of Sulh in family disputes and as a program to be introduced in Islamic Schools and universities in Malaysia.

Incorporation by Reference in Maritime Arbitration

This paper deals with maritime arbitration in general and in particular, the applicability of arbitration clauses in charterparties incorporated by reference into bills of lading. Following a discussion on the origin of maritime arbitration we see how dispute resolution in the shipping industry had initially been associated with informal procedures involving little or no dependence upon courts and other systems of formal dispute resolution methods, thus bringing about a special nexus between the maritime industry and non-judicial methods of dispute resolution - such as arbitration. One of the key requirements of an arbitration to take place is that the arbitration agreement must be in writing - as a significant departure from common law principles which allow for oral agreements as well. However, we a number of situations where an arbitration clause present in an agreement may be inducted into another by reference. This brings up the unique problem of bills of lading and their nature being that of a negotiable instrument. The question then arises as to whether the incorporation of a charterparty arbitration clause by reference into a bill of lading always reflects the true intentions of the parties to arbitrate. This paper describes how courts in the United Kingdom and the United States have dealt with this issue. In spite of differences in the approach on the two sides of the Atlantic, it is seen that such questions are dealt with on a case to case basis in both jurisdictions. Finally it is argued that in spite of the plethora of precedents, the case-to-case approach is at best, a shot in the dark for disputing parties with an equal chance of success or failure. Suggestions in order to mitigate such uncertainty are also presented.

Disfavored Nations: Anti‐Dumping at the WTO

AbstractThe proliferation of Anti‐Dumping actions may be explained by the Most Favored Nation rule of safeguards, the advantages of unilateral retaliatory measures as an alternative to formal dispute resolution, and the exercising of discipline in a risk‐sharing agreement. Use of unilateralism is attractive to developing members that are constrained by legal capacity. The expression of the Anti‐Dumping Agreement appears to be a hybrid of rules and standards. However, a lack of interpretive guidance from the WTO and the opportunities for discretion in the implementation of rules render them standards in a shroud of rules. This is due to the presence of large proxy spaces, or the domestic investigative authority being substantially the arbiter of satisfaction with the agreement.

Practical considerations in the implementation of further restorative justice programmes for juvenile offenders in Hong Kong

Despite some initial interests in and recommendations for further implementing restorative justice (RJ) programmes to deal with juvenile offenders, the Hong Kong Government has rejected such an agenda being moved forward. This article reports on the findings from a small-scale, qualitative study that examined various obstacles hindering the implementation of RJ programmes in Hong Kong. It explores, from the perspectives of 12 professional practitioners who have experience dealing with juvenile offenders or who have been a part of the Hong Kong justice system, the desirability and feasibility of introducing RJ as an alternative form of dispute resolution for juvenile offenders. The views and ideas of these practitioners provide insights into the practical difficulties of establishing RJ in Hong Kong. These difficulties mainly involve a lack of resources and expertise for setting up RJ components within the existing criminal justice system.

Step by Step

Drug selling and violence are intimately connected. However, despite the importance of systemic violence as a source of drug-related violence, there is surprisingly little research that examines these conflicts specifically as forms of dispute resolution. To partially address this concern, drug business disputes are explored from a situational perspective, specifically by viewing them as series of influence tactics. In addition, a comparative analysis assesses how two specific influence tactics—compliance and resolution efforts—operate differently in violent versus nonviolent disputes. By looking at the dynamics of drug business disputes that end in varied outcomes, the result is an enhanced understanding of the nature and process of conflict in drug market settings. The findings from this and similar research studies can help improve attempts by law enforcement and other entities to reduce violence linked to drug selling, chiefly by pinpointing areas of flexibility available to guide control and prevention efforts.

Dimensions of Online Arbitration in India

The rapid expansion of commercial transactions and globalization has given rise to spiraling growth in arbitration at the national as well as international stages. Arbitration is one of the modern techniques of alternative dispute resolution (ADR) that has gained a lot of prominence due to the freedom it offers to the disputants. Online Arbitration is a mixture of conventional Arbitration under Arbitration & Conciliation Act 1996, combined with technological features requiring application of Information Technology Act 2000. This paper looks at the dimensions of online arbitration in India along with the difficulties, advantages and legal complexities that this form of dispute resolution entails. The future of arbitration is online arbitration if India wants to cut down on its ever increasing backlog of cases and this form of ADR would allow quick settlements to international as well as domestic business entities.

India’s Domain Name Dispute Resolution Process: An Empirical Investigation

India’s Domain Name Dispute Resolution Process: An Empirical Investigation

Understanding How Law Functions

International Relations Theory and International Law: A Critical Approach. By Adriana Sinclair. Cambridge: Cambridge University Press, 2010. 201 pp., $90.00 hardcover (ISBN 978-0-521-11672-5), $29.99 paperback (ISBN 978-0-521-13346-3). Law is a socially constructed phenomenon subject to the interests and influences of those whose behavior it seeks to regulate. At the same time, law shapes that behavior both directly and indirectly by creating expectations, establishing relationships, and identifying consequences for failure to perform. This is true for all law—domestic and international—even though laws may function in different ways depending on their locations. One of the chief differences is in the level of institutionalization. Domestic law is usually the product of some legislative process that is implemented by an executive who may also be charged to impose sanctions for any violation. The means to settle disputes are usually provided through a judicial system or some other form of dispute resolution. International law may now have international institutions that carry out some of these functions, but they are not as widely recognized or used as such institutions are domestically. International law's normative objectives may not be as clearly discernible as those of domestic law since there can be a considerable time lag between the enactment of international law through treaties, customary law, and other efforts to regulate international behavior and its realization in practice. These two factors—the lack of institutionalization and the sometimes long incubation period to realize normative objectives—are at the heart of the failure of many lawyers to understand international law's purpose and functions and for many in international relations (IR) and political science to doubt its influence. Decades of collaboration between international relations and international law (IR-IL) scholars have …

ODR: The next green giant

AbstractThe worlds of government and business, as well as individual preferences, are moving towards incorporating environmentally friendly practices. Dispute resolution, as with every other human endeavor, has environmental impact. Some practice modes leave a large environmental footprint while others incur less environmental cost. Online dispute resolution (ODR) enjoys clear environmental advantages over any other form of dispute resolution, yet this has not been discussed in the literature or spotlighted in the commercial practices of the field. This article describes the various environmental advantages ODR offers and suggests a framework for taking these into account in dispute resolution ventures and projects.

Collective and individual alternative dispute resolution in France and Britain

The paper compares trends and case studies of individual and collective employment conflicts in France and the UK. Its focus is on the extent to which conciliation, mediation and mediation are used within the two different industrial relations systems. In both, third-party intervention is associated with the legitimacy conveyed by the involvement of both employers and trade unions, or by the presence of an impartial judge. The research finds extensive use of alternative dispute resolution is taking place in both countries, with dispute resolution taking place commonly in the justice system in France, while in the UK there is extensive use made of the arms-length independent government agency, Advisory Conciliation and Arbitration Service. However, the research concludes that the most effective third-party interventions take place when they are combined with mobilisation, rather than merely being the sole form of dispute resolution.

Scottish construction lawyers’ awareness and experiences of alternative dispute resolution

It is widely acknowledged that lawyers generally perform a gate-keeping role, advising clients on the most appropriate form of dispute resolution for particular cases. Is it reasonable to believe that the attitudes of the legal fraternity in Scotland create a real limit on what could be implemented by a government that seeks to promote modern methods of dispute resolution as part of its civil justice reform agenda? Drawn from questionnaire- and interview-based research, the principal aim of this paper is to fill a gap in the literature and establish baseline data on Scots construction lawyers’ awareness, attitudes and experiences of alternative dispute resolution (ADR) and implications for the resolution of construction disputes. There is evidence from the questionnaire survey and participant interviews that more education in ADR procedures and their application could provide further opportunity to develop them as settlement tools in Scotland by building on more positive aspects of responses within the sample analysis. Only some in the legal fraternity have embraced the challenge of what the study has found to be regarded widely as an opportunity. Further education, training and publication of case law involving ADR may be necessary to convince doubters that ADR needs to be part of the menu of methods of dispute resolution for the modern lawyer in Scotland.

The use of standard contracts in the English National Health Service: A case study analysis

The use of contracts is vital to market transactions. The introduction of market reforms in health care in the UK and other developed countries twenty years ago meant greater use of contracts. In the UK, health care contracting was widely researched in the 1990s. Yet, despite the changing policy context, the subject has attracted less interest in recent years. This paper seeks to fill a gap by reporting findings from a study of contracting in the English National Health Service (NHS) after the introduction of the national standard contract in 2007. By using economic and socio-legal theories and two case studies we examine the way in which the new contract was implemented in practice and the extent to which implementation conformed to policy intentions and to our theoretical predictions. Data were collected using non-participant observation of 36 contracting meetings, 24 semi-structured interviews, and analysis of documents. We found that despite efforts to introduce a more detailed (‘complete’) contract, in practice, purchasers and providers often reverted to a more relational style of contracting. Frequently reliance on the NHS hierarchy proved to be indispensable; in particular, formal dispute resolution was avoided and financial risk was re-allocated in compromises that sometimes ignored contractual provisions. Serious data deficiencies and shortages of skilled personnel still caused major difficulties. We conclude that contracting for health care continues to raise serious problems, which may be exacerbated by the impending transfer of responsibility to groups of general practitioners (GPs) who generally lack experience and expertise in large-scale, secondary care contracting.

Large, Complex Construction Disputes: Dynamics of Multiparty Mediation

Construction projects, by their very nature, impose significant financial risks on all stakeholders. Changes to the scope of work are contemplated by the contracts. Time is of the essence, and commencing construction (and sometimes equipment procurement) before design is complete has become the industry norm. Changes, delays, unanticipated events, and disruptions, regardless of their root cause, can exponentially increase the cost incurred by the stakeholders in completion of the project. Disputes among the stakeholders are inevitable, and an effective dispute resolution process is critical to the financial success of the project. Dispute resolution boards, project neutrals, partnering, mandatory negotiation among project executives, and other creative mechanisms as a prerequisite to any more formal dispute resolution process can be very effective in promptly resolving disputes. Reaching a successful resolution becomes significantly more difficult, however, as the complexity of the project and the number of stakeholders in the process increases. Rather than (or in conjunction with) submitting disputes to a binding resolution process such as arbitration or litigation, stakeholders often utilize mediation. Mediation gives the stakeholders the opportunity to work with an experience neutral facilitator in crafting an acceptable resolution of the dispute. In addition to retaining control of the outcome of the process, mediation is cost-effective and minimizes the transaction and opportunity costs associated with resolving the underlying disputes. This article focuses on effectively mediating large and complex construction disputes, with an emphasis on the dynamics associated with multiparty mediation. To demonstrate the complexity of a construction mediation involving multiple parties, consider the following hypothetical situation, with the diverse interests of the various stakeholders.

The NLRA’s Legacy: Collective or Individual Dispute Resolution or Not?

In this brief essay I review the legacy of the NLRA for dispute resolution - which is a mixed legacy, for both and labor rights, as well as for other areas of human disputing. The processes which grew around labor rights, including bargaining, negotiation, arbitration, mediation, med-arb and other impasse breaking techniques are good developments, demonstrating that there are other forms of dispute resolution, rather than winner-take-all litigation, brute struggles of power within unassisted negotiation, or worse, violent conflict. Labor processes, beginning with bargaining and grievance arbitration that became hybridized and more complex, such as grievance mediation and med-arb, were important innovations that spawned a whole new field in dispute resolution - dispute system design. But, in what many regard as a distortion of using alternative processes to reduce the contentiousness of litigation, or to save costs, or to serve some other (usually, employers’) interests, arbitration placed in mandatory, pre-dispute contracts of (and now all other kinds of contracts) and then interpreted to be the only form of dispute resolution available, is a controversial legacy which is hardly producing labor peace. Indeed, the very goals of collective rights may be eroded as rulings from non-union individual matters (and commercial contracts more generally) are being blended with and eviscerating what were often intended to be rights. The legal processes that have developed around the separation of legal concepts and consciousness of employment (seen as individual rights) versus labor (seen as rights) is one of the major themes of this essay.In this examination of the NLRA’s legacy it is important to recognize how much processes used to deal with labor-management relations have given us, but also how different processes for different purposes might be essential for producing not only labor peace, but labor justice. As I have argued about processes in general - process pluralism - process choice and variety may be essential for delivering some form of justice in different contexts. Labor relations might benefit from learning that lesson - one size will not fit all, including limited (under current law and practice) labor negotiation and bargaining strategies, mandatory commitment to grievance or arbitration in different contexts, whether contractual or statutory, and in my view, insufficient attention to mediation, for both and union-management, as well as individual, issues and disputes.

Additional support needs reforms and social justice in Scotland

New additional support‐needs legislation in Scotland sought to recognise the way in which poverty, as well as individual impairment, contribute to the creation of children's difficulties in learning. As well as identifying a wider range of needs, the legislation sought to provide parents, irrespective of social background, with more powerful means of challenging local authority decisions on resource allocation, with the aim of delivering a fairer system. This paper uses Scottish Government statistics and family case studies drawn from an ESRC‐funded project (RES‐062‐23‐0803) to examine the links between social deprivation, the identification of additional support needs and parents' ability to use the new dispute resolution mechanisms. There is a strong association between the identification of additional support needs and social deprivation and this is particularly marked in relation to non‐normative difficulties, such as social, emotional and behavioural difficulties, compared with normative difficulties such as blindness and deafness. Statutory educational plans, which provide greater rights to additional resources and formal dispute resolution mechanisms, are disproportionately distributed to parents in more advantaged neighbourhoods. Parents from middle‐class backgrounds appear to be able to use their social and cultural capital more effectively to challenge local authority decisions. The paper concludes that some funding for additional support needs should be allocated on the basis of social deprivation, but there continues to be a need for the assessment and resourcing of individual needs, since poverty has material consequences for individual children, whose difficulties may be overlooked if an entirely systemic approach is adopted. There is a need for greater investment in advocacy service to enable parents from poorer backgrounds to exercise their rights.

The origins and development of family conciliation in Japan: a political aspect

Mediation has a peculiar characteristic as a form of dispute resolution. It is ‘all process and no structure’. Because the final agreement is the justification for the procedure, mediation can accept non-legal intervention in order to help both parties reach an agreement. In Japan, conciliation – ‘mediation conducted by lay people’ – was institutionalized much earlier than in the US, the UK and European countries. In the early twentieth century, it was introduced by government not only to reduce the court's workload, but also to promote settlements based on patriarchal and particularistic values. The government had tried to introduce a Western legal system as soon as possible after the Meiji Restoration in 1868, but underlying this encouragement of Western-style law lay the aim of abolishing the extraterritoriality which had been conceded to Western countries. The national slogan during the Westernization process was ‘Preserve the Japanese soul and learn Western techniques’. The first family law drafted by a French law professor offended those in power, because it gave rights to family members and put the married couple at the center of a family. This notion of a family system contradicted that of the dominant class in Japan, which gave the head of a family the power to govern family members and put a male filial line at the center of a family. Therefore, after the re-drafted family law had come into effect, the government planned to exclude all types of family disputes from the ordinary court system. For this purpose, the ‘reform’ of family law, the establishment of a special tribunal, and the introduction of conciliation were planned, though only conciliation was introduced before WWII. After WWII, in the process of postwar reform, all these schemes came to be realized, although family law itself was changed to comply with the new Constitution. Many prewar conciliators kept their positions after the war. Conciliators were usually retired old men or housewives who were chosen by the court for their ‘good common sense’ and social standing. Conciliators were expected to persuade spouses, particularly wives, to repair and sustain relationships, but as people became less and less subservient to official authority, family conciliation came to be criticized as imposing often obsolete and personal views upon spouses. However, conciliators have become indispensable assets for the courts. They form a national organization which is the only national organization to support the courts. Conciliators not only reduce the court's workload but also provide significant political support to the courts. The position of a conciliator as a court official is still attractive for retired people and even lawyers. In so far as this mutually beneficial relationship does not collapse, Japanese family conciliation will survive for the foreseeable future.

Mediator assessment, documentation, and disposition of child custody cases involving intimate partner abuse: A naturalistic evaluation of one county’s practices.

The contentious and costly nature of the adversarial process for resolving child custody disputes has prompted scholars, practitioners, and policy makers to advocate for the development and implementation of less divisive forms of dispute resolution, notably, mediation. Mediation has been championed for its potential to resolve disputes with less acrimony among disputants, reduced economic costs, increased satisfaction with outcomes, and fewer adverse consequences for family members. Despite the increasing popularity, arguments have cautioned against the use of mandated mediation when intimate partner abuse (IPA) is alleged. This research documents a mediation screening process and models mediators' decision-making process as instantiated, naturally, in one jurisdiction.

Dispute resolution in additional and special educational needs: local authority perspectives

The UK Government is keen to encourage the use of mediation, rather than court or tribunal, as the best means of resolving disputes between citizen and state on the grounds that legal proceedings are costly, lengthy and stressful. The policy of proportionate dispute resolution appears to be particularly applicable to the field of special educational needs (SEN), where both mediation and tribunal are available as dispute resolution mechanisms. However, evidence suggests that very little use has been made of mediation in either England or Scotland. In order to understand this phenomenon, this paper begins with investigating the dominant policy frameworks in SEN (England) and additional support needs (ASN; Scotland). Subsequently, the attitudes of English and Scottish local authority (LA) officers are explored. It is argued that both countries now have an eclectic mix of policy frameworks in play, including the traditional models of bureaucracy and professionalism, and the more recent models of managerialism, consumerism and legality. In Scotland, professionalism and bureaucracy continue to dominate, and this is associated with more restricted access to and less use of all forms of dispute resolution, in particular the tribunal.