Dispute Resolution Methods Research Articles

A EXIGÊNCIA DE POLÍTICAS PÚBLICAS PARA A CONTENÇÃO DA LITIGÂNCIA PREDATÓRIA

This article aims to analyze the phenomenon of predatory litigation, which consists of the abusive use of the Judiciary with the intention of causing financial harm to third parties. Initially, the history of predatory litigation in the United States is presented, with the creation of antitrust laws and jurisprudence on the subject. Next, the metaprocedural effects of predatory litigation are addressed, which go beyond the judicial decision and may have strategic motivations. The article also analyzes the perception of the phenomenon by the Brazilian Judiciary, with the identification of emblematic cases and the adoption of measures to curb this practice. Finally, public policies are proposed to address predatory litigation, with an emphasis on awareness, prevention, institutional strengthening, and the promotion of alternative dispute resolution methods. The goal is to contribute to the construction of a more efficient and fair justice system, capable of curbing the abusive use of the Judiciary.

Arbitration as a Medical Dispute Resolution Method under Indonesian Positive Law

Medical disputes arising from conflicts between patients and doctors/dentists can be addressed through litigation or non-litigation channels. Law Number 17 of 2023 concerning health mandates that all medical disputes must first be resolved through Alternative Dispute Resolution (ADR) outside of court. The aim of this paper is to analyze ADR as a method of resolving medical disputes in Indonesia and to examine the legality and potential of arbitration as a dispute resolution method under Indonesian law. The benefits of this study include providing a juridical understanding of medical dispute resolution according to Indonesia’s positive law and contributing to the field of health law. The study addresses the ambiguity and conflict of norms related to medical dispute resolution by employing normative legal research with a statute approach, supported by descriptive and evaluative analysis. The results indicate that, according to Article 310 of Law Number 17 of 2023, medical disputes must be resolved through non-litigation channels. Among the available ADR methods, arbitration offers advantages over mediation due to its binding final decision, making it more efficient for both parties. The legal foundation for arbitration in medical dispute resolution is outlined in Law Number 30 of 1999 concerning arbitration and alternative dispute resolution. Consequently, arbitration presents a new paradigm for resolving medical disputes in accordance with Indonesian positive law.

Penanganan Sengketa Pertanahan dalam Perspektif Agraria

Dispute is an inseparable part of conflict, which can occur in various aspects of daily life. Studying disputes is crucial to understand their nature and resolution methods. This research uses a normative research method with prescriptive research specifications and a comparative, conceptual, and historical approach. Data is collected through a bibliographic study from primary, secondary, and tertiary legal sources. Land conflicts are often caused by issues such as boundary disputes, inheritance, state land control, and legal uncertainty in land tenure, which fundamentally stem from the imbalance of land rights ownership and uncontrolled land conversion. Land dispute resolution can be carried out through litigation and non-litigation pathways. The litigation pathway offers legal certainty, execution power, and transparency but has weaknesses in terms of cost, time, and its confrontational nature. Conversely, the non-litigation pathway is more efficient in terms of cost, time, and its collaborative nature, but is limited in terms of execution and legal certainty. Therefore, the choice of dispute resolution method must consider the characteristics of the dispute and the needs of the parties involved.

Azərbaycan Respublikasinda arbitraj mübahisələrin həllinin alternativ üsulu kimi

The article analyses in detail the recently adopted Law on Arbitration in the Republic of Azerbaijan, which was intended to replace the Law on International Arbitration. The Law sets out the categories of disputes subject to arbitration, the criteria for the selection of local arbitrators and the rules for the recognition and enforcement of arbitral awards. Particular attention is paid to the development of a system of domestic arbitration as a means of reducing the judicial burden, as well as harmonising the country's arbitration practices with international standards. The article also extends the discussion by raising questions about the history of arbitration, beginning with its origins as a method of resolving conflicts without involving the judicial system. The evolution of arbitration is examined in detail, emphasising its ancient roots and its gradual development in many cultures and legal systems. Special emphasis is placed on the term "arbitration courts" in the Republic of Azerbaijan, exploring the specifics and peculiarities of the local context of arbitration. In addition, the article touches upon the important comparison between arbitration and mediation in our state, highlighting the differences and similarities between these two methods of alternative dispute resolution. Both methods stand out as key tools in legal practice, helping to resolve conflicts and strengthen business relationships. Keywords: law on arbitration, alternative dispute resolution, arbitration, arbitration agreement, arbitral tribunal, international arbitration, arbitration organizations, arbitration award, mediation

Arbitral Settlement of Joint Infringement by Private Equity Funds

Based on the confidentiality and efficiency of arbitration, the dispute resolution method is often agreed as arbitration in the contracts involving private equity funds. The investment process of private equity funds often involves multi-layer nesting to avoid regulation and infringement of investors' rights and interests. Such infringement cases involve joint infringement by a majority of people, and it is difficult for investors to claim their rights through infringement lawsuits based on the exclusionary effect of a valid arbitration agreement on jurisdiction in the event that investors have signed a valid arbitration agreement. Due to the relativity of the arbitration agreement, the arbitral tribunal cannot break through the validity of the arbitration agreement to pursue the liability of other joint infringers when accepting the relevant case, and cannot resolve the dispute at once. If the validity of the arbitration agreement can be extended to other joint tortfeasors in the private equity fund, it will not only facilitate the investors to claim their rights and interests, but also improve the efficiency of dispute resolution.

A Review of Alternate Dispute Resolution (ADR) Methods in the Construction Industry with Special Reference to the Arbitration & Conciliation Act 1996

The construction industry is considered the second largest industry after agriculture. It works purely on a contract basis, based on the Indian Contract Act 1872, with the client on one side and the contractor on the other. The execution of the work and the project is monitored and controlled by qualified Consultants and Engineers. The industry is characterized by its complexity, diversity, and dynamic nature. Disputes in the construction industry are common and can arise from various causes, often leading to delays, cost overruns, and damaged relationships between stakeholders. We have various dispute-resolution methods which will help both parties to amicably solve the disputes.

Tinjauan Yuridis terhadap Penyelesaian Sengketa Tanah di Jakarta Barat

T Land dispute resolution is a complex issue in Indonesia, especially in urban areas such as West Jakarta. These disputes often involve the sale and purchase of the land in question, as in case Number 59/Pdt.G/2023/PN Jkt.Brt. This study aims to analyze juridically the settlement of land disputes and how they are implemented in the Indonesian legal system. The method used in this study is normative legal research that focuses on literature review. The results of the study show that the implementation of mediation as one of the dispute resolution methods provides equal justice for both parties, and can result in a peace agreement that has legal force. The conclusion of this study is that the mediation mechanism has great potential in resolving land disputes more effectively than the litigation route.

Mediation as an Alternative Dispute Resolution Method: a comparative analysis between Ecuador and Argentina Conflicts: comparative analysis between Ecuador and Argentina

Within the regulatory frameworks of Ecuador and Argentina, which have been analysed and compared, mediation is presented as an alternative dispute resolution mechanism in which an impartial third party, the mediator, facilitates negotiation between the parties involved in order to reach a consensual agreement. This study focuses on analysing various aspects of mediation in both countries, including the similarities and differences between their legal frameworks, the legal effects of the mediation act, the procedures for accessing mediation, the mediation methods applied, the requirements for the mediator's position and the resources available for mediation. In the comparative analysis, the regulatory frameworks of both territories are examined in detail. This research adopts a deductive approach methodology, which implies a detailed analysis of the relevant legislation for the study.

TUTELA PROVISÓRIA EM ARBITRAGEM

This paper explores provisional measures in the context of arbitration, highlighting their significance in contemporary procedural law. Arbitration, as an alternative dispute resolution method, faces challenges in its interaction with state jurisdiction, particularly regarding the granting of provisional measures. The study addresses the models of competence for granting these measures, the interaction between state and arbitral tribunals, and the influence of the Civil Procedure Code on the arbitral procedure. The systematization of provisional measures in the CPC and their implications in arbitration are explored. The article examines provisional measures before and during arbitration, including the role of the emergency arbitrator and the complexities of simultaneous requests to the judge and arbitrator. The importance of the interaction between arbitration and the judicial system for the effectiveness of the arbitral process is emphasized, contributing to the understanding and development of procedural law in arbitration.

تسوية المنازعات في القانون التجاري - على ضوء القانون رقم 95.17

Mechanisms for settling commercial disputes have become one of the manifestations of legal and economic thinking at world level, a desired tool for regulating and stimulating national and international trade, and an important and essential factor in increasing the flow of investment and alleviating the burden on the national judicial system, prompting the various countries - at the highest level - to attach great interest to this peaceful means. In this respect, the high speech of His Majesty King Mohammed VI on the occasion of the opening of the judicial year on 29 January 2003 in Agadir affirmed the following: ‘.... Thus, in accordance with Our firm desire to continue working to promote investment and in application of Our directives set out in the letter We sent to Our Prime Minister to this effect, we invite Our Government to continue its efforts to modernise the justice system, by rationalising work, simplifying procedures and ensuring the widespread use of information technology. It is also necessary to diversify the procedures for the consensual settlement of disputes that arise between partners in commercial transactions, by proceeding, with all due speed, to draw up a draft law on national and international commercial arbitration, which will enable our judicial system to meet the requirements of globalisation and economic competitiveness, and to help attract foreign investment’. In his speech on the occasion of the anniversary of the Revolution of the King and the People on 20 August 2009 in Tétouan, His Majesty added that: ‘...At the same time, alternative dispute resolution methods such as mediation, arbitration and conciliation should be developed, alternative sentences should be applied and local justice should be reviewed....’. Then the speech of 14 October 2022, which stated: ‘Today, we are banking on productive investment as an essential lever for reviving the national economy and anchoring Morocco in promising sectors’.

Flaws in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) – A Critical Study

The successful execution and overall impact of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), may face significant challenges due to various pressing issues. Among these are vague protocols surrounding private arrests, mixed terminology related to police custody, and unclear guidelines regarding community service as a penalty. Furthermore, the BNSS fails to provide clear directions for filing electronic FIRs, employing audio-visual techniques for witness examinations, and outlining the process for reimbursing witness costs. Concerns also arise from the absence of well-defined grounds for bail cancellation, inadequate enforcement of the Witness Protection Scheme, and procedural deficiencies in the collection of forensic evidence. Furthermore, the BNSS fails to address alternative dispute resolution methods and relies on insufficient resources, such as officers' personal mobile phones, for important tasks like video documentation during search and seizure operations. These flaws have the potential to undermine the intended objectives of the BNSS and pose significant operational challenges.

CONSTRUCTION MEDIATION: GLOBAL EXPERIENCE FOR ALTERNATIVE DISPUTE RESOLUTION IN THE MODERNISATION OF MULTI-APARTMENT RESIDENTIAL BUILDINGS

Modernisation of multi-apartment buildings is one of the steps towards achieving the goals of sustainable urban development. Modernisation of buildings and construction in general causes many disputes between the condominium, co-owners and other stakeholders, especially approval and financial issues. Such disputes are usually interpersonal rather than legal or legislative. In this regard, litigation is impractical or not at all within the competence of the courts. Modernisation, as an architectural, engineering, constructing and the process of urban development in general, is not an obligation and is a manifestation of desire of communities and a goal of the country, therefore the dispute resolution on this issue requires a special and innovative approach. Mediation is almost the only one way to resolve disputes between condominiums and co-owners on issues of modernisation and further operation and maintenance. If for many countries in the world construction mediation, although a relatively new concept, is already widely used in practice, then in Ukraine this method of dispute resolution is little known and not widespread. This method has proven its effectiveness in practice, because it is quick and simple in contrast to the litigation, which can suspend or delay construction for a very long time. Mediation helps parties reach agreement on any issue. Modernisation is an important and necessary step, at the same time controversial and difficult, due to the need for co-financing of the project by the co-owners of the house. Disputes between the parties are not only obstacles for project implementation and development but also endangers the achievement of achieving the goals of urban sustainable development. The larger project the more controversial issues arise that need to be resolved: not only financial, coordination and legislation but also compliance of norms and rules of non-government organisations or foundations that finance the program. Implementation of global mediation experience in modernisation and urban planning will help to more effectively and easily develop construction processes and dispute resolution between stakeholders of the project. The research and implementation of this issue is an important step on the way to improving the processes of modernisation of multi-apartment building, construction and urban planning.

Позитивні та негативні аспекти медіації і примирення сторін в адміністративному судочинстві: розмежування та проблеми застосування

The article addresses the issue of distinguishing mediation and reconciliation in administrative proceedings as two key mechanisms of alternative dispute resolution. With the development of legal systems and judicial practice in Ukraine and worldwide, alternative dispute resolution methods have gained special significance. This issue is particularly relevant in administrative proceedings, which focus on conflicts between citizens and the state or its bodies. Since administrative disputes often involve important issues of public interest, alternative methods of resolving such disputes, including mediation and reconciliation, play an important role in achieving a fair balance between private and public interests. However, in practice, questions arise regarding the differences between mediation and reconciliation of the parties. These procedures are often confused, as both involve reaching an agreement between the conflicting parties without resolving the case by a court ruling on the merits. However, each of these methods has its unique characteristics, legal frameworks, and opportunities for use. The purpose of this article is to investigate and provide a detailed analysis of the main differences between mediation and reconciliation in administrative proceedings in Ukraine, as well as assess their legal status and practical effectiveness. It examines the legal foundations of mediation and reconciliation, identifies their key differences and common features, and explores the practical aspects of their application in resolving administrative disputes. The focus is on analyzing the legal regulation of mediation in Ukraine, the role of the judge in reconciliation, and the appropriateness of using these mechanisms to improve the efficiency of administrative justice. An important aspect is the study of foreign experience and the possibility of adapting it to the Ukrainian legal system. Mediation is viewed as a process in which a neutral mediator helps the parties reach a mutually acceptable decision, whereas reconciliation involves the active participation of the court in resolving the conflict. The article also highlights the main problems and prospects for introducing mediation in administrative disputes, including issues of accessibility to mediation for citizens, legal culture, and the need to develop appropriate institutional mechanisms to ensure the effectiveness of this process.

Penyelesaian Sengketa Internasional secara Damai

This research aims to examine how to resolve international disputes peacefully using descriptive analytical normative juridical methods that identify, analyze, clarify and construct phenomena based on observations as well as actual events and problems with existing reality, research This is a qualitative approach and data used. Peaceful resolution of international disputes, namely negotiation, is a general and efficient dispute resolution method, where the parties can monitor the process and reach a mutual agreement, fact finding is a dispute resolution method that focuses on clarifying the facts that are the source of the dispute, good services is a dispute resolution method in which a third party helps reconcile the disputing parties through negotiation. Mediation is a dispute resolution method that involves a neutral third party such as a state, international organization, or individual who plays an active role in the negotiation. Conciliation is a more formal dispute resolution method. rather than mediation, involving a third party or conciliation commission which can be permanent or ad hoc.

Disharmonisasi Pasal 70 Undang-Undang Nomor 30 Tahun 1999 dengan Putusan Mahkamah Agung: Studi Putusan Mahkamah Agung Nomor 264 B/Pdt.Sus-Arbt/2014

In business activities, one of the most suitable alternative dispute resolution methods is arbitration. This research is conducted to understand and examine the principles of finality and binding nature as outlined in Article 70 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution. Conceptually, arbitration relies on an arbitration agreement agreed upon by the disputing parties, and the District Court is not authorized to adjudicate the dispute. On the other hand, Law No. 30 of 1999 itself provides an opportunity for filing a cancellation appeal in court. To address this issue, the case study used is the Supreme Court Decision No. 264 B/Pdt.Sus-Arbt/2014. In this research, it was found that the non-absolute nature of the principle of finality and binding nature in arbitration is influenced by the need for executory power, which is the jurisdiction of the court, and the binding finality, although the opportunity is limited to reasons of null and void in the arbitration procedure. Although this principle is not absolute, the law does not automatically facilitate the cancellation requests filed. The non-absolute nature of the arbitration award principle in Law No. 30 of 1999 creates ambiguity regarding the principle of finality and binding nature, as in practice, parties who lose or feel that their interests are not accommodated seek ways to challenge the arbitration award, even with reasons beyond the provisions of Article 70 of Law No. 30 of 1999.

The Uniqueness of Mediation as an Alternative Dispute Resolution Method Outside the Court in Resolving Various Customary Disputes in Simalungun Regency

<em>Mediation as an alternative dispute resolution outside the court has its own uniqueness in resolving various customary disputes. Generally, when a dispute arises between parties, the community tends to be more familiar with resolving disputes through customary means, or what they refer to as mediation. Mediation is a term commonly used by the community when disputes occur. Thus, mediation as an alternative dispute resolution holds a unique position among the people, particularly in Simalungun Regency, in resolving various customary disputes without the involvement of the courts. This article will further discuss the uniqueness of mediation in resolving customary disputes, the advantages and disadvantages of applying mediation as an alternative dispute resolution outside the court in Simalungun Regency. The importance of establishing mediation as an effective method for alternative dispute resolution outside the court for various customary disputes lies in its easy procedures, active involvement of the disputing parties, and respect for customary values and norms in maintaining social harmony and prioritizing win-win solutions. Moreover, mediation not only provides a practical and efficient solution but also helps to strengthen social relationships and preserve local cultural continuity. Therefore, mediation is considered a suitable and beneficial means for resolving customary disputes, offering a more familial approach compared to court resolution processes.</em>

MEDIASI YUDISIAL KE DALAM SISTEM PERADILAN PERDATA DI INDONESIA

Judicial mediation is an alternative method of dispute resolution that has been growing rapidly lately. Judicial mediation assigning judges as mediators has many advantages. The success of this mediation is expected to ease the task of the judge because with this mediation it means that the parties to the dispute have contributed to the implementation of the principle of fast, simple and low-cost justice. As for the background of the problem, how effective is the judicial mediation itself in the civil justice system and what are the obstacles during judicial mediation in civil courts. The purpose of writing this thesis is to find out the effectiveness of Judicial Mediation and the obstacles that occur in Civil Courts. 1 of 2002 concerning the Empowerment of Courts of First Instance to Implement Peaceful Institutions. Supreme Court Regulation (PERMA) Number 2 of 2003 concerning Mediation Procedures in Courts. PERMA Number 1 of 2008 concerning Mediation Procedures in Courts. PERMA Number 1 of 2016 concerning mediation procedures in court. The results of the study concluded that the effectiveness of the implementation of Judicial Mediation in Civil Courts is ineffective because of the small peace agreement in the implementation of mediation. This can be seen from the obstacles in reaching a peace agreement in the Judicial Mediation process in Civil Courts which are still low due to the fact that first the parties do not have good faith in mediation, the two mediator judges in court are still few, third the number of impartial advocates or lawyers to reconcile .

К вопросу о государственной пошлине как инструменте процессуальной экономии

The article analyzes the possibility of solving the problems of optimizing civil proceeding by changing the approach to the issue of court fee. It must be said that even the judicial community does not have an unambiguous position about increasing court fees. Thus in 2017 the Chairman of the Supreme Court of the Russian Federation, V.M. Lebedev, removed the item of increasing court fees from the consideration by the Plenum of the Supreme Court of the Russian Federation, noting that this initiative could have negatively affect to the realization of the right to access to justice. Nevertheless, already in 2018, the Chairman of the Council of Judges of the Russian Federation, V.V. Momotov, expressed the idea of the need to increase unfairty low court fees. In the context of the increasingly urgent problem of court congestion, initiatives in the field of popularization of alternative dispute resolution methods seem quite fair, but how will it be possible to achieve their effective development in conditions of cheap justice? This item should be discussed carefuly, considering the possibility of subtle use of court fee mechanisms in order to optimize legal proceedings, aimed at increasing the attraction of using out-of-court ways of settlement legal contest resolution by participants. However, it is important to maintain a balance of interests, preventing the right of access to justice from becoming a privilege.

Protection of Domestic and International Arbitration and Alternative Dispute Resolution from Money Laundering

This research aims to mitigate and prevent the transmission of the effects of money laundering to the special judiciary facility, which is the arbitration and the rest of the alternative dispute resolution methods. For individuals, to not lose their confidence in this facility and breach its credibility and integrity. Which it may lead to the reluctance of companies and persons from this facility, and its exploitation by criminals and criminal organizations. The importance of the arbitration facility is that it's a special judiciary whose integrity must be protected and ensured against money laundering crimes. Despite of all, FATF Recommendations (which are considered by most specialists in combating money laundering and terrorism tend to be their constitution to combat these crimes) are not addressed this issue. Most of the international and domestic legislations, to put in place preventive measures and due diligence programs towards the client, and to establish integrity requirements in selecting arbitrators, mediators, and conciliators. Thus, all this effort to ensure the protection of this facility from criminal activities and its passive exploitation to achieve criminal objectives.

Genesis, current status, and prospects for the development of the institution of negotiation in Ukraine

As of 2024, the use of alternative dispute resolution is becoming increasingly relevant caused by the complicated access to justice due to martial law. The purpose of this study was to analyse the historical experience of using negotiations in Ukraine from the Middle Ages to the present day and to identify the vectors for further development of this institution. Both general scientific and special scientific methods were employed: formal legal and comparative legal methods. It was found that the term “negotiation” can be used in several meanings: 1) the process of reaching an agreement; 2) the stage of court proceedings; 3) the stage of mediation, conciliation, or other methods of alternative dispute resolution; 4) a separate method of alternative dispute resolution. As the times of Kyivan Rus, the Ruska Pravda prescribed an analogue of negotiations – the replacement of blood revenge with a payoff; in the 16th-century Lithuanian statutes, the negotiation process was called “unity”. The “Rights by which the Little Russian people are judged” of the mid-18th century defined two forms of documents drafted as a result of negotiations: a conciliation agreement (without the participation of mediators) and a conciliation verdict (with the participation of mediators). During the Soviet era, legislation tended to establish the right to judicial protection depending on the previous use of alternative dispute resolution. However, since Ukraine’s independence, this trend has changed, and the law now prescribes the right of everyone to choose how to protect their rights. Further vectors for the development of the institution of negotiations in Ukraine may include the introduction of various types of platforms for remote participation in the negotiation process, as well as the development of the legal framework towards detailing negotiation procedures. The findings of this study can be used in teaching disciplines of the historical and legal cycle in higher education institutions of Ukraine, as well as for further forecasting the development of this institution and its improvement