Formal Dispute Research Articles

World trade rules affect horticultural biotechnology

biotech goods. The WTO is a voluntary “club” of nations, with no enforcement mechanism. It relies on members to voluntarily comply with agreements. Three overriding principles of the WTO are that members’ regulations regarding trade must be transparent, not discriminate among WTO members, and not favor domestic sellers relative to imports. The Agreement on Sanitary and Phytosanitary (SPS) Measures of the GATT recognizes that members establish their own rules for food safety and environmental protection. The WTO Web site notes that SPS regulations “must be based on science; they should be applied only to the extent necessary to protect human, animal or plant life or health; and they should not arbitrarily or unjustifiably discriminate between countries where identical or similar conditions prevail.” The Cartagena Protocol also deals with some aspects of cross-border shipments of biotech-related materials. However, major agricultural exporters, such as the United States, Australia, Canada, Argentina and New Zealand have not ratified the protocol and it does not exempt any nation from GATT obligations. Although WTO members have wide latitude in specifying trade rules to ensure food and environmental safety, they have nonetheless been subject to formal dispute. The United States and other nations have filed formal proceedings with the WTO concerning the European Communities‘ “Measures Affecting the Approval and Marketing of Biotech Products.” Their argument is that the European Union has erected barriers that are not based on the sound application of science and thereby inappropriately block importation of safe products. Related issues concerning, for example, specifics of product labeling, have not yet reached formal WTO disputes, but may be on the horizon. The dispute has important implications for horticultural biotechnology. The initial costs of apDaniel A. Sumner Director, UC Agricultural Issues Center

Formal and informal dispute resolution in the Limpopo Province, South Africa

The study of customary law benefits from a focus on both its formal rules and mechanisms and the informal aspect. The complexity of ‘living law’ is best captured by considering process and context. The working of the three-leveled formal traditional courts of the Nkuna Tribal Authority near Tzaneen in the Limpopo Province is complemented by informal mechanisms and processes for adjudication and intervention in conflicts. The civic association, kin, the police and other organised groups or networks play a significant role inside and outside the formal traditional courts. Case material shows the strategic use of these mechanisms by the rural poor, depending on their social and economic positions.

Approaches to resolving trade disputes

The authors discuss the various approaches to resolving trade disputes available to Member Countries of the OIE (World organisation for animal health). The paper first describes the rights and obligations of Member Countries in setting health measures for the importation of animals and animal products, according to the provisions of the World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS Agreement). The authors indicate how OIE standards may be used to set import measures and introduce issues such as equivalence and the use of provisional measures, which are both areas of potential conflict. The authors then describe the options available for resolving disputes--bilateral discussions, mediation through the OIE, the use of the WTO SPS Committee and the formal WTO dispute settlement process, discussing the advantages and disadvantages of each.

Trade disputes and the implementation of protection under the GATT: an empirical assessment

This paper is a first attempt to empirically determine why countries choose to violate or adhere to GATT rules when making trade policy adjustments between negotiating rounds. We use a previously unexploited set of data in which countries implemented two ‘types’ of protection under the GATT system between 1973 and 1994: (i) ‘legal’ protection in which countries utilized the GATT’s safeguards provisions; and (ii) ‘illegal’ protection in which the protection was provided outside of the safeguards provisions, resulting in a formal trade dispute. We find substantial evidence that concerns for retaliation affect government policy decisions in ways which contribute to the explanation of the existence of trade disputes.

Settlement of Disputes Within the World Trade Organisation: A Guide to the Jurisprudence

The Urugauy Round of Multilateral Trade Negotiations led to the development of a revised set of procedures on dispute settlement. These procedures dealt with a number of significant problems that had arisen under GATT dispute settlement experience. In spite of these important reforms, there are numerous, complex and contentious questions of legal adjudication that any formal dispute settlement system must face. The article outlines the aims and organs of dispute settlement under the WTO. It addresses some of the key questions as to standing, interpetation, evidence and adjudicatory practices and processes. While ongoing moitoring and reform is necessary, an important thesis is that the inherent nature of legal adjudication forces uncertain determinations that can too easily give rise to unwarranted criticism of the system as a whole.

Dispute resolution in federal systems

This article deals selectively with four broad approaches to conflict management in federal systems of government: formal dispute resolution,informal dispute resolution, dispute avoidance, and popular dispute resolution. Courts undertake the task of formal dispute resolution through judicial review: issues of current significance include judicial concepts of federalism, the reference jurisdiction, Scottish devolution, and supranational federalism and the European Court of Justice. Examples of informal dispute resolution are few. The South African Constitution includes a provision, requiring parties to an intergovernmental dispute to exhaust all other remedies before resorting to litigation. The dispute resolution process contained in chapter 20 of the North American Free Trade Agreement may stimulate experimentation with similar models in federal systems. Dispute avoidance techniques are many and varied; they include the drafting of constitutional instruments and the use of intergovernmental forums within and outside the constitutional framework. The electoral process may be employed in federal systems to determine the fate of governments, specific legislative measures and proposed constitutional amendments. Each federal society has its own culture of conflict management, which exerts a subtle but significant influence on the operation of, and the relationship among, dispute resolution systems.

Democracy and trade conflict*

The record of formal disputes in the General Agreement on Tariffs and Trade (GATT) is largely one of conflict among democracies. I develop a theoretical argument to explain the prevalence of democratic states in the GATT's dispute process. Democracies face stronger pressures to initiate disputes; they are more attractive as dispute targets due to the political influence enjoyed by interest groups; they share norms of juridical dispute resolution; and they are more likely to uphold their policy commitments than nondemocracies. I develop an empirical model of the incidence of disputes among GATT members, finding that democracies are more likely to participate in disputes than nondemocratic states. I also find that democratic dyads are more likely to resolve their disputes cooperatively.

The WTO dispute settlement system: a first assessment from an economic perspective

We explore the incentives countries face in trade litigation within the new WTO dispute settlement system. Our analysis yields a number of interesting predictions, First, because sanctions are ruled out during the litigation process, the dispute settlement system does not preclude all new trade restrictions. However, the agenda-setting capacity of the complainant, including its right to force a decision, make trade restrictions less attractive than under the WTO's predecessor, GATT. Second, the system's appellate review provides the losing defendant with strong incentives to delay negative findings, and both parties with a possibility to signal their determinacy in fighting the case. Third, a relatively weak implementation procedure potentially reinforces incentives to violate WTO trade rules. Fourth, bilateral settlements are more likely at an early stage in the process and are biased toward the expected outcome of the formal dispute settlement procedure. Empirical evidence based on a first dataset of cases at an advanced stage of the litigation process provides qualitative support for our claims.

Dynamic and Flexible Aspects of Land and Marine Tenure at West Nggela: Implications for Marine Resource Management

ABSTRACTAt West Nggela, access to high value marine invertebrate stocks is controlled by consanguineal corporate groups holding primary rights (which include rights of exclusion) over reefs bearing these stocks. Disputes over primary rights appear to result in a breakdown in management practices, resulting in overfishing and severe depletion of stocks. An understanding of the common causes of disputes is therefore of considerable importance to marine resource management, and development, in this region.This paper outlines first the essential, or ‘ideal’, processes of descent reckoning and property transfer that underpin the Customary Marine Tenure (CMT) system at West Nggela as they are presented to ‘outsiders’ such as government officials and anthropologists. It then deals with some of the many exceptions to this norm, and the ways these variations can contribute to disputes over primary rights to property. The pressures of economic development, and the resultant commodification of resources and property, in our view catalyse the conflict between the ideal, simplified model and the complexity of actual praxis in respect to property rights. Recent dramatic increases in the perceived value of many properties as a result of proposed lucrative developments may underlie present day conflicts which in the past would not have arisen. Examples are drawn from interview data as well as case studies of two formal property disputes which were heard in local courts at West Nggela in 1995.

Representation of formal dispute with astanding order

Computational dialectics is concerned with the formal representation of argument and dispute. The field emerged from developments in philosophy, artificial intelligence and legal theory. Its goal is to suggestalgorithms, procedures and protocols to investigate the tenability of logical claims, on the basis of information in the form of rules and cases. Currently, the field slowlyconverges to the opinion that dispute is the most fair and effective way to investigate claims. The basic assumption of this field is that dispute is the most fair and effective way to investigate claims. The definition of a formal dispute varies throughout the literature, butis considered not to vary within one and the same logical system. In this paper it is shown that parts of the definition of a dispute may change within one logical system.To this end, the notion of partial protocol specification (PPS) is introduced. A PPS is a part of the definition of the protocol. A modification to the protocol, in the form of a PPS, can be put forward, disputed, established and incorporated as aneffective `point of order'. The paper demonstrates the existence of self-undermining PPSs, it discusses the relevance of PPSs for dialectical models of legal argument and concludes with a description of how PPSs can be built into existing argumentation systems.

The native American graves protection and repatriation act in its first decade

The global effort to protect indigenous heritage relies on national legislation. The Native American Graves Protection and Repatriation Act (NAGPRA) of the United States provides one model for accomplishing a broad agenda of protective measures. NAGPRA confirms indigenous ownership of cultural items excavated or discovered on federal and tribal lands, criminalizes trafficking in indigenous human remains and cultural items, and establishes a process of repatriation of material to native groups. In implementing the law, questions related to cultural affiliation, culturally unidentifiable material, the status of native groups not recognized by the federal government, and the scope of a group's cultural patrimony have been particularly troublesome. A case study of the repatriation process highlights issues in implementing NAGPRA and benefits in fostering consultation and collaboration among native groups, museums, and federal agencies. Finally, the article considers the controversies that have come before a statutory review committee and the federal courts during NAGPRA's first decade. This experience demonstrates the limitations of formal dispute resolution as a means of developing and implementing the law.

A Comparison of Formal and Informal Dispute Resolution in Medical Malpractice

A Comparison of Formal and Informal Dispute Resolution in Medical Malpractice

Dividing the child: social and legal dilemmas of custody

Questions about how children fare in divided families have become as perplexing and urgent as they are common. In this work on custody arrangements, the developmental psychologist Eleanor Maccoby and the legal scholar Robert Mnookin consider these questions and their ramifications for society. This book examines the social and legal realities of how divorcing parents make arrangements for their children, Dividing the Child is based on a large, representative study of families from a wide range of socioeconomic levels. Maccoby and Mnookin followed a group of more than 1000 families for three years after the parents file for divorce. Their findings show how different divorce agreements are reached, from the uncontested dealings to formal judicial rulings, and how various custody arrangements fare as time passes and family circumstances change. Numerous examples of joint custody and father custody are considered in this account, along with the mother-custody families more commonly studied; and in most cases the point of view of both parents is presented. After the divorce, most children spent time in both parental households. The authors identify three different patterns of co-parenting: cooperative, conflicted and disengaged. They explain why post-divorce conflict rarely involves formal legal disputes, although parents have difficulty in establishing effective parental cooperation. This book should be invaluable to the lawyers, judges, social workers and parents who, more and more often, must make wise and informed decisions concerning the welfare and care of children and divorce.

Reasons and Reasons for Reasons: Differences Between a Court Judgment and an Arbitration Award

i begin by asking why it is customary for judges to give judgments at all. A judgment is not, after all, a necessary feature of formal dispute resolution. It played a small part in trial by battle or ordeal. And it might well be thought that parties who have endured the tedium and anguish of legal proceedings would wish to be spared yet another journey through country made distateful by gross over-familiarity. No doubt many are. But there are, I think, four – or perhaps four-and-a-half – good reasons why the giving of reasoned judgments has become a standard feature of ordinary judicial proceedings. The first reason is that, as the Court of Appeal said (with reference to an industrial tribunal decision) in Meek v. City of Birmingham District Council ,1 ‘The parties are entitled to be told why they have won or lost.’ And if, as so often happens, the winner has recovered less than he claimed, he is entitled to be told which parts of his claim have been held ill-founded or exaggerated. This reason calls for little discussion. But I seek support in the sense of dissatisfaction which many must have felt when, after a trial before lay justices in which there has been a lively conflict of evidence and a vigorous tussle on issues of law, and perhaps after a lengthy recess for consideration, the chairman returns and simply says ‘We find the case proved. Anything known?’ I would add, lest I be thought unfairly to criticise the most junior members of the judicial hierarchy, that somewhat similar sense may be felt when a petition for leave to appeal to the Judicial Committee of the House of Lords is dismissed with no reasons given, a feeling not mitigated when the decision which it is unsuccessfully …

Construction Law and Practice in Japan

Construction law and practice in the United States and Japan is remarkably similar. One principal difference, rooted in Japanese societal mores, is that self-settlement of disputes is overwhelmingly preferred to third-party resolution through litigation. Japan has a three-tiered court system that includes trial courts, appellate courts, and a supreme court. There are no juries in Japan. The sources of Japanese law are principally the Japanese Constitution and statutes. To a lesser extent custom, reason, and precedent are also used. Trust and establishment of a long-term business relationship underlie most contract relationships. By law, construction contracts are required to be fair and just, based on a theory of basic equity. Disclaimers and exculpatory clauses are disfavored. Differing site condition clauses are common, but are interpreted as requiring a sharing of risk between owner and contractor rather than, as in the United States, requiring a shifting of all the risk from contractor to owner. Japanese practice regarding termination, damages, liquidated damages, and formal dispute resolution are similar to U.S. practice.

The Hancock Report and Workplace Industrial Relations

Workplace industrial relations are growing in importance. The extent of plant bargaining and the scope of the industrial relations agenda at that level have developed markedly over the recent past. Such a development risks the growth of an unregulated informal system of industrial relations. While the Hancock Report recognizes the need for more formal dispute and grievance procedures, it does not adequately deal with the problems arising at workplace level. This paper argues for a broad policy of formalized relationships at workplace level by various means but not through legislation.

Personnel Management in Government: Politics and Process.

Personnel Management in Government: Politics and Process.

Crisis Mediation – A Case of Success and Failure

The ASOL Case In this section we will outline an actual case, highlighting some key issues in mediation. In this particular case one of the authors was invited to help resolve an industrial dispute which had lasted three months. An operative to whom we shall refer as JS was dismissed for allegedly leaving factory premises during work hours without permission. During the intervening three months the operatives' union contested the issue and all stages of the formal disputes procedure were exhausted.