Litigation Cases Research Articles

Examining causes of disputes in subcontracting litigation cases using text mining and natural language processing techniques

Disputes are common and widespread in subcontracting practices and would ultimately lead to litigation resulting in significant negative consequences including delay, increased cost, and tarnished reputation of contracting parties. Although considerable studies have analyzed disputes in construction projects, research efforts still fall short in investigating causes of disputes in subcontracting practices. To bridge the knowledge gap, this paper investigated the causes of disputes in subcontracting practices by automatically examining 3150 litigation cases that are publicly available in China using text mining and NLP (natural language processing) techniques. Documents of litigation cases were presented into vectors by data preprocessing and vector presentation. Clustering analysis of the data was conducted by using an improved K-Means model, K-Means++. Finally, 37 causes of disputes were discovered in the subcontracting litigation cases. Results showed that variations due to unforeseen circumstances, labor service issues from subcontractors, disagreement on engineering quantities between subcontractors and other contracting parties, invalid signature of subcontractors for obtaining more payment, payment issues between subcontractors and clients or general contractors, contradictory on the return of performance bond, disagreement on the interest of late payment, and arrears issues suffered by subcontractors were the top eight significant causes of disputes in subcontracting practices in China. This study contributes by systematically exploring the causes of disputes in subcontracting practices using automated text analysis approaches instead of manual content analysis. The findings of this study can provide construction practitioners a deeper understanding of disputes in subcontracting and thereby helping them increase their capacity to handle disputes.

Indirect Impacts of Climate Change Litigation

Climate change has been the subject of much debate as a threat multiplier to international peace and security. The risk that climate change might adversely affect conflict situations has generally been accepted. Its role towards the exacerbation of risk factors for atrocity crimes has, however, received little attention to date. As the number of climate change litigation cases increases internationally, it raises questions as to the potential impact of climate litigation, not only vis-à-vis climate action, but also beyond. This article considers whether effective climate litigation may prevent conflict and atrocity crimes elsewhere. It concludes that, where climate litigation is successful in achieving accountability for the implementation or enforcement of States’ climate commitments, it may have an indirect impact on alleviating the outbreak of conflict and contributing towards the prevention of atrocity crimes.

Exploring Key Issues in Cybersecurity Data Breaches: Analyzing Data Breach Litigation with ML-Based Text Analytics

While data breaches are a frequent and universal phenomenon, the characteristics and dimensions of data breaches are unexplored. In this novel exploratory research, we apply machine learning (ML) and text analytics to a comprehensive collection of data breach litigation cases to extract insights from the narratives contained within these cases. Our analysis shows stakeholders (e.g., litigants) are concerned about major topics related to identity theft, hacker, negligence, FCRA (Fair Credit Reporting Act), cybersecurity, insurance, phone device, TCPA (Telephone Consumer Protection Act), credit card, merchant, privacy, and others. The topics fall into four major clusters: “phone scams”, “cybersecurity”, “identity theft”, and “business data breach”. By utilizing ML, text analytics, and descriptive data visualizations, our study serves as a foundational piece for comprehensively analyzing large textual datasets. The findings hold significant implications for both researchers and practitioners in cybersecurity, especially those grappling with the challenges of data breaches.

Research on the Identification of Medical Damage Cases

Medical disputes are acute social problems caused by many factors. With the further deepening of the reform of the medical system, doctor-patient conflicts have become more prominent, and their common manifestation is the dispute over the attribution of medical accidents. How to prevent disputes, alleviate medical conflicts, properly deal with medical tort cases, and improve and refine the legal mechanism of doctor-patient conflicts are particularly important. For a long time, due to the complex and professional characteristics of medical damage cases and the status difference between doctors and patients, and the application of medical damage compensation law involving a large number of professional and complex evidence issues, it has become the primary problem for the district court to accurately grasp the evidence of the case in medical tort litigation, and rationally use the evidence to make a fair judgment. The crux of medical disputes lies in the evidence problem. In view of the strong professionalism in medical disputes, expert opinions and expert assistants' opinions often become the core evidence, and their accurate examination and judgment become the top priority in the settlement of medical damage cases. At present, the appraisal of medical damage faces many specific difficulties and challenges. Therefore, this paper advocates the introduction of a reasonable dialogue mechanism between technology and rules, such as evidence-based evidence from the medical perspective of technology, auxiliary rules construction.

Slow justice and other unexpected consequences of litigation in environmental conflicts

Movements are increasingly taking companies to court for environmental and social harms. Yet little is known about the consequences this strategy has for movements and their struggles. Through a cross-country comparison of three environmental litigation cases in Argentina, Nicaragua, and Spain, we find that local groups encounter three interrelated consequences: i) ‘slow justice’, a strategy generally driven by companies to delay proceedings and demobilize movements; ii) courts reduce complex impacts to simplified, scientifically verifiable and legally punishable damages, thus invisibilizing certain harms, victims, narratives and demands; and iii) local groups lose control of the resistance process as judges and lawyers become key decision-makers. These dynamics interact with the specific features of environmental conflicts —uncertainty, slow violence and marginalized affected parties— to deepen power inequalities in litigation processes. Our findings are contextualized within the literatures on legal mobilization and the judicialization of politics. We conclude that social movements, when looking for a fair and just solution through the judicial system, encounter different but highly hierarchical power structures. And even if they win in the courts, companies can avoid complying with the judicial orders.

ASSESSMENT OF VALUE-BASED PRINCIPLES ON ISLAMIC BANKING PRACTICES IN MALAYSIA: AN EXPLORATIVE STUDY USING BANK’S DISCLOSURE

Background and Purpose: This study aimed to understand banking practices to legitimise their role in society and meet stakeholder needs in terms of their products and services. This study narrowed its scope to use the underpinning thrust of value-based intermediation (VBI) as it is a primary pillar of the VBI framework. Towards these same ends, the study also sought to gauge how banks integrated their products and services with the framework.
 
 Methodology: This study employed the triangulation approach, which comprised of a content analysis of annual reports of the bank and trend analysis of court cases. This study used Bank Islam Malaysia Berhad (BIMB) as an explorative study.
 
 Findings: The findings indicated a decrease of total occurrences over the years on litigation cases involving BIMB, related to know-your-customers compliance. Meanwhile, the analysis of annual reports of the bank indicated that shariah non-compliance incidents are due to operational failures and lack of shariah knowledge among the staff. This study highlighted the need for the banks to strengthen the know-your-customer compliance, besides enhancing and promoting Islamic financial literacy and ethics to their stakeholders.
 
 Contributions: This study contributes a novelty in this area of study by using data triangulation on court cases and annual reports to provide a more comprehensive perspective on the issue. This study also added to the current literature on VBI, especially within Malaysian context.
 
 Keywords: Corporate responsibility, due diligence, know-your-customer, Islamic ethics, financial literacy.
 
 Cite as: Talib, S. A., Mohd Iskandar, T., & Muda, R. (2023). Assessment of value-based principles on Islamic banking practices in Malaysia: An explorative study using bank’s disclosure. Journal of Nusantara Studies, 8(TI), 429-452. http://dx.doi.org/10.24200/jonus.vol8issTIpp429-452

일본의 행정계획법제

In broad terms, the issues and concerns surrounding administrative planning align between the Japanese and Korean administrative law systems. However, relevant discussions have diverged following the Japanese revision of the Administrative Case Litigation Act in 2004. A distinct feature of the legal discourse in Japan's administrative planning system is its focus on understanding administrative planning within the flow of various administrative activities or the administrative process itself. The Japanese discussions on controlling the widely acknowledged planning discretion, substantive or procedural, follow a pattern similar to those in Korea. However, they diverge slightly in the discussion about ‘judgment process review,’ which begins with confirming the stage at which discretion is exercised in the administrative planning process, and in the converged opinion on using ‘litigation to confirm illegality’ for party litigation. Although specific discussions took place on administrative planning proposed during the revision of the Administrative Case Litigation Act in 2004, it is unfortunate that such discussions have not been applied actively over the past 20 years. However, proposals have since been made for administrative hearings or new types of litigation formats suitable for disputes related to administrative planning, which offer significant insights for Korea.
 On the other hand, the ‘basic policy’ implemented under the name of ‘planning’ in administrative practice has drawn less attention because it is related to setting the definition and scope of administrative planning and does not directly impact citizens' rights and interests. In Japan, however, so-called induction-type and guideline-type plans are used in various administrative affairs and serve as a means for state control over local governments. This study aims to draw implications for the Korean legal system by examining recent challenges in Japan’s administrative planning and discussions aimed at solving them.

Equalising the evidence base for adaptation and loss and damages

AbstractSince the UNFCCC Paris Agreement came into force after 2015 international climate policy rests on three pillars: mitigation, adaptation and loss and damage. However, while there are clear agreed‐upon metrics to measure emissions, base mitigation goals against and hold countries and companies accountable to, the evidence base for the impacts of climate change to inform adaptation and loss and damage is very different. There are no agreed‐upon metrics, nor are there guidelines or criteria to delineate the impacts of climate change from other drivers of losses and damages. This imbalance is reflected in the lack of ability to set and enforce goals. With a new body of scientific evidence introduced in the IPCC, we argue that this can change. Especially with an increasing number of climate litigation cases being recognised as a legitimate root to justice, and thus being given due consideration in courts, the imbalance in evidence could change and put adaptation and loss and damage on more equal footing with mitigation.

The ‘Fair Share’ of Climate Mitigation: Can Litigation Increase National Ambition for Brazil?

Abstract Several years after the adoption of the Paris Agreement, the world is still far from achieving its emission reduction target. Despite the scientific certainty of the devastating effects of climate change on human rights, countries’ ‘nationally determined contributions’ (NDCs) still fall short of the 1.5 °C goal. Compared to developed countries and their historical contributions, the Global South’s role in climate mitigation may appear insignificant. However, the magnitude of the human rights effects of climate change are enormous. Any increase above 1.5 °C would endanger human well-being and the ecosystems on which human life depends. Therefore, all parties must cooperate to adopt more ambitious NDCs. This imperative—while falling mainly on the Global North, which holds significant historical responsibility for emissions—also extends beyond the Global North, to, for example, a country like Brazil. This article assesses how fair share has played a role in climate litigation cases in the Global North (primarily in Europe) and discusses the possibilities and challenges of bringing similar cases in Brazil. It relies on the fair share methodology used to substantiate the argument of increased ambition in cases in the Global North, discussing whether a similar argument could be brought in Brazil.

FGRC-Net: A high-information interactive convolutional neural network for identifying ink spectral information

Modifying some keywords or numbers on documents to change the original intention is illegal. In some litigation cases, especially economic cases, there is often a need to examine the type of ink on documents. This paper proposes a nondestructive and accurate detection method for ink inspection. In this work, a high-information interactive, full group residual convolution network (FGRC-Net) is proposed and combined with spectral information to classify the inks of six different brands of pens. First, FGRC-Net realizes the information interaction among channels to effectively improve the feature extraction ability through multigroup convolution and multipath cascade. Meanwhile, to avoid feature degradation, the residual connection is introduced. Second, the ink spectral information of six pens based on the hyperspectral system is obtained. Finally, in comparing FGRC-Net and other deep learning methods, FGRC-Net shows the best classification performance with 98.38% accuracy, 98.53% precision, and 98.40% recall. The results show that combining FGRC-Net with a hyperspectral system is an effective detection method for handwritten ink classification. It also provides an effective detection method for handwritten document ink inspection. At the same time, the universality and validity of FGRC-Net in processing spectral information are verified by the comparison of multiple datasets.

Rights-Based Climate Litigation in Brazil: An Assessment of Constitutional Cases Before the Brazilian Supreme Court

Abstract This article presents a systematic analysis of climate litigation in the Brazilian Supreme Court. It argues that climate litigation in Brazil is centred on the protection of human rights and the court is ready (and eager) to draw a closer connection between climate and human rights. The climate litigation movement in Brazil follows in the wake of more than 40 years of a rich environmental legal framework and jurisprudence. This long trajectory includes adopting a chapter in the 1988 Brazilian Constitution dedicated to the right to an ecologically balanced environment. The Constitution determines this is a fundamental human right, encompassing the present and future generations. Building on this context, recent climate litigation cases question how climate stability fits within this constitutional framework. As the country’s constitutional tribunal, the Supreme Court recently received important climate cases addressing Brazil’s climate policy implementation. This article proceeds in three parts. First, the article contextualizes the climate litigation movement in Brazil’s broader environmental legal framework. Second, the article describes the Supreme Court climate docket of concentrated control cases. It focuses on the human right to an ecologically balanced environment and its connections with other constitutionally protected human rights. Third, the article examines the cases’ judicial reasoning, considering how the Supreme Court addressed climate change in the decisions (interlocutory or on the merits) available thus far. The ultimate goal of this article is to deepen the understanding of how the Supreme Court approaches climate as a human right through the methodical examination of the court’s pronouncements.

Punitive damages in consumer public interest litigation in China: an empirical study

With litigation socialisation development, an increasing number of civil litigation cases have taken on social functions. Against this background, a punitive damages system involving social interests has developed. Since the implementation of China’s consumer public interest litigation system in 2013, the number of cases involving punitive damages filed by procuratorates or consumer associations has steadily increased. These cases have mainly concerned the fields of food and medicinal product consumption. Regarding punishment and deterrence, Chinese judges generally hold a positive attitude towards a plaintiff’s request for punitive damages, which has no obvious correlation with plaintiff type, consumption type, or claim scale. In China, the calculation of punitive damages is related to the consumption field involved in the case. Most judges determine punitive damages in fields of food and medicinal product consumption as ten times the defendant’s total sales amount, and in the general consumption field, three times the defendant’s sales amount, but some judges choose to decide the specific amount at their discretion to avoid excessive punishment and ensure that damages are paid. Additionally, most judges believe that there is no relationship between punitive damages and administrative or criminal fines, or they only consider the defendant’s criminal or administrative punishment as a discretionary circumstance for determining punitive damages. Only a few judges believe that there is a correlation among the three, and advocate punitive damages and administrative or criminal fines to offset each other. Chinese judges have two main tendencies in judging the ownership and management of punitive damages; that is, punitive damages are handed over to the state treasury or allocated to special accounts. In view of judges’ understanding of the social attributes of punitive damages and the influence of the guidance of national documents in recent years, allocating punitive damages to special accounts for safekeeping and use, is becoming a growing trend.

Dispute Classification in Construction Projects Based on Litigation Cases

Disputes in construction projects arise due to failure to address their root causes and lack of procedures for dispute avoidance and mitigation. Courts are facing a growing number of construction-related lawsuits that hinder the resolution processes with negative impact on the project completion. This study was an attempt to define major causes of disputes in construction projects from a review of 177 selected litigation cases in the Kuwaiti courts. Dispute sources in construction were classified into four categories: abnormal conditions, financial situation, project delay, and project management. Statistical analysis was conducted to rank the severity of dispute sources. For verification of results, construction experts were interviewed. A regression model was used to predict the disputed claim value. The most severe dispute sources were ranked according to the following: payment delay, contract documents (incomplete information, conflict of interest in both parties, noncompliance, unawareness), main contractor time delay, and owner time delay. It is hoped that results open avenues to a clearer understanding of the causes of disputes in contractual agreements in the construction industry, as well as identify areas to mitigate dispute occurrences. Because the scope of the research was limited to Kuwait, findings of this investigation may lead to a more in-depth investigation of other court scenarios of similar nature from the other parts of the Gulf region.

Does patent infringement litigation affect stock price crash risk? Evidence from China

AbstractPrevious studies have examined the determinants of stock price crash risk. However, extant literature overlooks the relationship between patent infringement litigation and stock price crash risk. Based on a dataset of Chinese firm‐year observations for the period 2007–2021, we fill the gap by examining how patent infringement litigation affects stock price crash risk and the underlying channels through which this effect occurs. We provide robust evidence that corporate patent infringement litigation increases its risk of one‐year‐ahead stock crash. This unfavourable effect is more pronounced in firms that were involved with invention patent infringement lawsuits, lost a patent litigation case, suffered from larger litigation costs and are defendant firms. The channel analysis confirms that increased information risks and exacerbated financial constraints are two plausible channels explaining how patent infringement litigation leads to stock price crash risk. Finally, we find that effective corporate governance and risk‐taking level are conducive to mitigate the unfavourable effect of patent infringement litigation on stock crash risk. This study enriches the literature on stock price crash risk from the perspective of patent infringement litigation.

Unintended consequences of outcome based compensation – How CEO bonuses, stocks and stock options affect their firms' patent litigation

Enforcing a firm's patents is crucial for defending its competitive advantage. CEOs are central for making these strategic decisions but we know little about how their individual incentives shape their decision-making. We integrate theory from outcome-based CEO compensation designs into models explaining firms' decisions to become plaintiffs in patent litigation. Based on how compensation shapes time horizons and risk-taking of CEOs, we predict that CEO compensation tied to stock increases the firm's likelihood to enforce patents, while bonuses and stock options reduce it. Further, we reason that the tenacity of patent disputes in an industry creates a boundary condition for the effects of CEO compensation because they curtail the degree of agency that CEOs have for incorporating their personal incentives when making litigation decisions for the firm. We test these hypotheses for 2302 US firms with 4420 different CEOs and 3451 patent litigation cases between 1997 and 2015 and find support for all hypotheses with the exception of the boundary condition for stocks as CEO compensation. These findings advance existing theory on firms' decision-making on patent litigation by explicating how firm and CEO incentives can diverge with direct consequences for the likelihood of litigation to occur.

Analysis of medical malpractice liability disputes related to novel antineoplastic drugs and research on risk prevention and control strategies.

To investigate the general characteristics of litigation cases of medical malpractice liability disputes (MMLDs) related to novel antineoplastic drugs (NADs), the drugs involved, as well as the common types of medical errors related to NADs and their damages in the process of diagnosis and treatment, with the aims of improving the level of rational medication use in the clinical application of NADs and actively prevent medical disputes. The China Judgments Online was searched for the cause of action using the key word "MMLDs" along with the name of 77 kinds of NADs. A total of 39 NAD litigation cases meeting the inclusion criteria from 1 January 2009 to 31 December 2021 were analyzed, and each potential adverse drug reaction (ADR) was reviewed to determine a causality assessment using the Naranjo algorithm for non-drug-induced liver injury (DILI) cases and the updated Roussel Uclaf Causality Assessment Method (RUCAM) for the DILI cases. Risk prevention and control strategies were recommended. Cases that met the inclusion criteria increased substantially each year during the last six years, from three cases in 2009-2015 to 36 cases in 2016-2021. There were more cases in Eastern China than in other geographic regions. Most cases involved tertiary hospitals, patients between 25 and 60 years of age, and patients who were predominately male. There were 18 kinds of NADs involved in medical errors. The most common consequences of NADs were closely related to the death, disability, and increased treatment costs caused by ADRs, inadequate indications, delayed diagnosis and treatment, and misdiagnosis and mistreatment. The most frequent medical errors were medical technology errors, medical ethics errors and medical record writing/safekeeping errors. In two cases involving DILI, one case was unable to undergo further RUCAM scoring because the liver function indicators of the patient before and after treatment were not published. The establishment of mechanisms to reduce the risks associated with the clinical application of NADs is warranted. Healthcare services must maintain strict adherence to the specific requirements of GPCANADs and drug instructions and strictly grasp the indications, contraindications, usage, and dosage of drugs, and strengthen the notification and management of off-label drug use. Monitoring patients for ADRs and preparing rescue and treatment measures for high-risk drugs may serve to reduce damages related to NADs. For DILI cases, medical and appraisal institutions should use RUCAM score to assess causal relationships.

Can the World’s Biggest Climate Change Case Help to Save the Ocean?

Abstract This article examines the first climate change constitutional case in the English-speaking Caribbean. The case challenges the oil and gas buildout offshore Guyana, a new frontier for petroleum. This may be the biggest climate change case to date based on the amount of greenhouse gas pollu-tion at stake or on the amount of potential liability arising from harm to the ocean. The article locates the case in current climate litigation. However, it characterizes the problem as greenhouse gas pollution and not climate change, which it treats as a symptom. The case raises interesting questions about the court’s obligation to take into account international law in deter-mining the scope of the State’s constitutional duty to citizens for a healthy environment. It also flags the difficulty of applying international law to determine the climate obligations of a carbon sink. The case is ongoing.

Enforcing Citizen Participation Through Litigation: Analyzing the Outcomes of Anti-Dam Movements in Brazil and Chile

ABSTRACTIn environmental politics, social movements play a crucial role, promoting participatory rights and confronting injustice, inequality, and the interests of the powerful. This article examines an underexplored topic in the literature on social movements, especially in Latin America: the use of litigation to force decisionmakers to comply with participatory formats, specifically in the course of opposition to hydroelectric dams. These projects often are destructive to the local environment and communities. This study examines four cases of environmental litigation that halted dam construction in Brazil and Chile, singling out causal pathways for successful collective action. It focuses on two dimensions of movement success: the implementation of participatory formats and the resulting cancellation of dam projects. In line with the joint effect model of social movement theory, the cross-case comparison of legal disputes shows that pursuing legal strategies in parallel to broad social mobilization and the support of institutional allies, can lead to successful outcomes.

Access to justice and strategic climate litigation in the EU: Curing the incurable?

AbstractAccess to justice in the EU is to be assured via both the CJEU and national courts through direct and indirect action procedures. Following this, the main argument developed throughout this analysis is that the CJEU differentiates the revision standard when interpreting the obligations of EU institutions and those of Member States. It is concluded that this kind of interpretation maintains the limitations to access to justice for individuals in the EU (the ‘incurable’), even when faced with the attempt to overcome this restrictive interpretation in the specific case of strategic climate litigation (‘curing the incurable’). The specific case of strategic climate litigation is used as an example to illustrate the negative consequences of limitations to access to justice for individuals in the EU. In conclusion, it is assessed whether there are any other ‘real cures’ for this deadlocked situation and what the rationale is behind these double standards.

Challenges of Legal Intermediaries in Construction Litigation

Litigation remains the least preferred dispute resolution method because it promotes adversarial relationships between disputants. However, its ability to secure a binding decision has proven its effectiveness in ending disputes. Because construction lawyers typically are only involved after disputes arise, construction professionals who have been part of the project since the inception stage need to fill the knowledge gap of the lawyers about the projects, taking up the roles of legal intermediaries. The communication between legal intermediaries and construction lawyers is one of the determinants of the case verdict because it fundamentally affects the potential of lawyers in preparation for litigation. This paper aims to formulate litigation case management strategies for legal intermediaries. The process included the identification of potential challenges faced by legal intermediaries during preparation for litigation and was followed by suggestions to overcome them. Quantity surveyors (QSs) were selected as the subject of study because the aspects covered by them during litigation preparation are wider than other construction practitioners. Qualitative research was conducted by interviewing 13 respondents who are construction lawyers and QSs who have experience in construction litigation. Among the challenges faced by legal intermediaries in litigation case management are documentation, proceedings, knowledge of the law, personality, and their daily job scope. The findings on their strengths, weaknesses, and suggested methods to overcome the challenges were integrated to form strategies for legal intermediaries in overcoming the challenges faced in preparation for litigation. Apart from contributing to the current body of knowledge, construction professionals could equip themselves by applying the suggested methods from this study to overcome the challenges faced as legal intermediaries.