Dispute Resolution Methods Research Articles

Alternative Dispute Resolution Dalam Sengketa Bisnis Internasional

Introduction: The importance of understanding international business contract law is because international business will involve more than one country so that the laws in these countries will also differ from one another. This will cause problems if there is a business dispute between two parties from different countries.Purposes of the Research: Thus, this study aims to analyze dispute resolution, especially alternative dispute resolution in international business.Methods of the Research: The research method used is normative juridical or what is known as legal research which is carried out by reviewing and analyzing the substance of the legislation on the subject matter or legal issue in its consistency with existing legal principles.Results of the Research: Choice of law is a consequence in an international business contract as a result of different legal rules in each country. Alternative dispute resolution is a method of dispute resolution that can be used in international business disputes. Arbitration, Mediation, Conciliation, Negotiation and Consultation can be used as initial options so that a solution can be obtained from the disputes faced before going through the litigation route which of course will be more time consuming and costly.

Concept of non-legal disputes in Ukrainian judicial practice

This article reveals the problematic issues related to the exercise of a person's constitutional right to judicial protection.
 This study compared the latest versions of the provisions of the Basic Law that determine the competence of courts of general jurisdiction; as well as some opinions of judges of the body of constitutional jurisdiction on the wording of this provision.
 To achieve this goal, the authors analyzed the current practice of the Supreme Court in the system of courts of general jurisdiction. Based on this, a classification of disputes that are not subject to judicial review was formulated, namely cases: which are of a political nature; which belong to the exclusive competence of other bodies or for which there is no legal regulation; in respect of which the person has chosen an ineffective method of protection; and cases, the resolution of which will not have legal consequences for the rights, freedoms and interests of the individual.
 Warns against the introduction of a mandatory pre-trial (out-of-court) method of dispute resolution, which would be contrary to the previous legal positions of the body of constitutional jurisdiction.
 The significant essence of justice in general and the role of its consideration of the case on the merits with the adoption of a fair decision, where the latter will be a single act of social justice.
 The question arises that the absence of any other remedy will undermine the very essence of the law as long as it is a denial of justice. Disputes themselves are a means of identifying the law.
 The study leads to the conclusion that certain types of non-legal disputes, in particular those that are not regulated by law and those that will not have a direct impact on the rights and interests of the individual, can lead such a person to epistemic ambivalence, which is unacceptable in a state governed by the rule of law.

MANEGERIAL CONFLICT BETWEEN DIFFERENT STAKE HOLDERS IN CONSTRUCTION

The drought-flood-drought cycle persists throughout India, according to this study. Both a paucity of water and a wide variation due to natural reasons constitute two "fixed aspects" to this dilemma. If a small group of stakeholders has similar values and the parties to the disagreement are likely to agree on goals, yet there are conflicts of interest among them, this form of conflict will occur. Coercive interactions among stakeholders might result in one party's value system taking precedence even though the other parties don't share that value system (and coerce the other stakeholders to accept it). Stakeholder interactions and power distribution are crucial in every issue. From a basic agreement on aims but with competing interests, through occasions when one stakeholder is powerful enough to compel another to comply are examples of interactions between stakeholders. Alternate dispute resolution methods like mediation or arbitration are more effective when the power balance is biased or unbalanced. In order to guide the ongoing process of national water resource reforms and to achieve balanced and sustainable development with the least amount of conflict, planners and policymakers benefit from gaining an in-depth awareness of the whole spectrum of stakeholder groups. . Key Words: Conflict, Stakeholder, Construction industry, 4S Functions

ADR and Civil Procedure: Friends or Foes?

The success gained worldwide by Alternative Dispute Resolution methods prompts a number of reflections on their pros and cons. Certainly, ADR schemes have the positive effect of reducing the caseload weighing down on courts, but, at the same time, they can undermine the role played by public justice, a role that is pivotal within the organization of legal systems abiding by the rule of law. This essay covers the consequences of the growing development of ADR for the effectiveness of our public system of civil and commercial justice and conveys the concerns of its author for the increasing privatization of dispute resolution and for the future of public justice. The main question of this work is the following: is the present enthusiasm for ADR schemes advancing the cause of civil justice or, to the contrary, it is a phenomenon that, in the long run, could undermine the role of jurisdiction?

Pelaksanaan Hak Jaminan Fidusia dalam Pemberian Kredit di Lembaga Perkreditan Desa di Desa Adat Mantring

Fiduciary guarantees are promulgated through Article 5 paragraph (1) of Law no. 42 of 1999 which regulates movable or non-transferable commodities to become objects of collateral. According to Article 11 Paragraph (1), all commodities that will be charged with fiduciary security must be registered first, so that after being registered it is safe to issue a fiduciary guarantee deed. However, in the field application of fiduciary guarantees at the Mantring Traditional Village LPD, there are differences regarding its implementation with the contents of the Fiduciary Guarantee Law. The purpose of this research was to analyze the factors causing the non-registration of fiduciary guarantees at LPD Mantring and to discuss the efforts to settle what can be done by LPD Mantring in the case of debtors defaulting. This research is an empirical research, using a sociological approach. Sources of legal material are primary sources obtained from interviews with Mr. I Ketut Budiarta as chairman of LPD Mantring Tampaksiring and Mr. Made Sudiarsana as secretary at LPD Mantring Tampaksiring. The data collection techniques for this research are Observation Techniques and Interview Techniques. The results of the research explain that there is a reason why the LPD Mantring did not register the Fiduciary Guarantee agreement, namely the problem of the cost of making a fiduciary guarantee deed which costs a lot and the value of the loan and guarantee for the debtor is small. The efforts taken by the Mantring Traditional Village LPD to resolve the default case use 2 dispute resolution methods, namely dispute resolution can be reached through non-litigation and litigation.

THE IMPACT OF PROJECT COST MANAGEMENT ON CONTRACTUAL DISPUTES IN SOUTH AFRICA

Cost management is essential in the construction industry, and could cause contractual disputes if not done correctly. This article investigated how project cost management contributed to contractual disputes in the construction project environment. A qualitative approach was used to interview eleven construction professionals. The data received was then analysed using content and narrative analysis methods. It was found that cost management contributed insignificantly to contractual disputes; however, measures such as the engagement of a contract manager, good change control system, approval of project scope, compliance with the terms and conditions of the contract, good project management, competent consultants and contractor, effective communication before and during project execution could be put in place to minimise the incidence of disputes. It was also revealed that construction stakeholders prefer the Alternative Dispute Resolution (ADR) method, such as mediation, to resolve cost-related contractual disputes when they occured. Only eleven construction professionals were interviewed; hence the findings could not be generalisable as the opinion of the construction professionals in South Africa. The construction stakeholders should not put all their efforts into the management of project cost, in an attempt to prevent the incidents of contractual disputes; instead, they should institute other stringent measures that prevent poor scoping, poor cost estimating, and ineffective project management practices, to minimise the incidence of contractual disputes in their projects. The article gave an insight into measures that the construction stakeholders must take to prevent cost-related contractual disputes aside from effective cost management

European Small Claims Procedure in the realm of the other European proceedings

In this article, the European Small Claims Procedure will be analysed in the context of the other European procedures, namely Brussels I bis Regulation (Regulation (EU) No 1215/2012), European Enforcement Order Procedure, European Payment Order Procedure and Consumer ODR Procedure. The aim of each procedure, their benefits for users and drawbacks are compared in order to establish the areas in which the European Small Claims Procedure can be improved or modified contributing better towards the development of more efficient and user-friendly European Union civil proceedings system. Results of the SCAN | Small Claims Analysis Network consortium studies of the application of the ESCP are used as a basis of this article. The article among other issues will cover premises to introduce seamlessly integrated dispute resolution methods and tools in the European Small Claims procedure such as early-diagnostics, negotiations, mediation, etc. in order to create a pyramid-shaped dispute resolution system so that only the disputes that cannot be resolved by using other tools would be channeled to the adjudicative stage.

Prevention and Resolution of Labor Disputes

The study covers preventive dispute resolution methods in industrial relations, as well as empirical testing of hypotheses regarding labor disputes in Russia. The hypothesis regarding the impact of the number of laid-off employees at the initiative of the employee on the number of labor lawsuits to reinstate employment filed is not supported. The hypothesis regarding the impact of the number of laid-off employees due to staff reduction on the number of Russian labor lawsuits to reinstate employment filed is supported. The largest number of disputes settled via mediation in Russia is labor wage disputes. The number of Russian labor disputes settled via mediation is still a small proportion of the total number of terminated labor disputes.

PENGGUNAAN ONLINE DISPUTE RESOLUTION DITINJAU DARI UNDANG-UNDANG NOMOR 30 TAHUN 1999 TENTANG ARBITRASE DAN ALTERNATIF PENYELESAIAN SENGKETA

As technology develops, new breakthroughs emerge which are considered more practical and make it easier for parties to settle business disputes out of court using Online Dispute Resolution. The Online Dispute Resolution method has not yet been regulated, meaning that there is a legal vacuum regarding the use of Online Dispute Resolution. This research is legal research. The approach used to answer this legal issue is the statute approach, which is an approach using legislation and regulations. Conceptual approach (conceptual approach) is used to examine and analyze the framework of thought, conceptual framework or theoretical basis of legal issues to be studied.
 Based on the results of the analysis of legal materials, it is concluded that the use of Online Dispute Resolution can be carried out where the Article 4 paragraph (3) of ADR Act stipulates that as long as it has been agreed upon by the disputing parties, dispute resolution through arbitration can occur in the form of electronic documents. Then, according to Article 5 of the ITE Act, it states that electronic information and/or electronic documents and/or their printouts are legal evidence. Even so, Online Dispute Resolution has not been able to run optimally because there are no separate regulations, therefore special arrangements regarding Online Dispute Resolution are needed to ensure legal certainty.

The Quest for an Appropriate Dispute Resolution Method in the Oil and Gas Sector in India

The Quest for an Appropriate Dispute Resolution Method in the Oil and Gas Sector in India

On Route to Climate Justice: The Greta Effect on International Commercial Arbitration

Climate change is the greatest global challenge that humankind has ever faced. It has changed the way in which communities, governments and businesses interact with each other, how they contract one with another and what legal disputes they face. National and international legal frameworks currently in place rarely provide the necessary mechanisms to resolve new kinds of disputes that have emerged and as a result, important gaps remain. International commercial arbitration is uniquely placed to respond to the transboundary nature of climate change. Its inherent flexibility, innovativeness, ability to deal with complex, cross-border issues and the possibility to choose a neutral adjudicator according to his/her expertise give commercial arbitration an important advantage over court litigation. However, some of its characteristics that are seen as welcome and desired in different contexts create important challenges for achieving climate justice. Therefore, innovation in this area will be necessary if commercial arbitration is to become an attractive option for resolving climate change-related disputes between businesses. The arbitration community should try to find constructive ways in which commercial arbitration can innovate itself so that it can complement other methods of dispute resolution traditionally used for climate change disputes. climate change, climate justice, ESG, international commercial arbitration, private finance, Paris Agreement, arbitration clause, expertise, transparency, Campaign for Greener Arbitrations, Chancery Lane Project, COP 26

Efektivitas Mediasi dalam Penyelesaian Perkara Perceraian di Pengadilan Agama Tuban

Mediation as an Alternative Dispute Resolution (ADR) is seen as a humanist and fair dispute resolution method. Humanist because the decision-making mechanism (peace agreement) becomes the authority of the disputing parties and maintains good relations. It is fair because each party negotiates a solution to the problem and the output is a win-win solution. Therefore, litigation dispute resolution began to be abandoned and people turned to mediation. Through Supreme Court Regulation (PerMA) No. 1 of 2008, mediation has been integrated into the court system. Every civil case must be resolved first through mediation. Every judge's decision that does not go through mediation first, then the decision is considered null and void. This paper discusses the effectiveness of mediation in the settlement of divorce cases at the Tuban Regency Religious Court, because divorce cases are cases that occupy the highest ranking in the Religious Courts. The focus of the study is the implementation of mediation in divorce cases, the effectiveness of Tuban mediation, what are the obstacles in the implementation of mediation in divorce cases at the Tuban Religious Court.

Efektivitas Mediasi dalam Penyelesaian Perkara Perceraian di Pengadilan Agama Tuban


 Mediation as an Alternative Dispute Resolution (ADR) is seen as a humanist and fair dispute resolution method. Humanist because the decision-making mechanism (peace agreement) becomes the authority of the disputing parties and maintains good relations. It is fair because each party negotiates a solution to the problem and the output is a win-win solution. Therefore, litigation dispute resolution began to be abandoned and people turned to mediation. Through Supreme Court Regulation (PerMA) No. 1 of 2008, mediation has been integrated into the court system. Every civil case must be resolved first through mediation. Every judge's decision that does not go through mediation first, then the decision is considered null and void. This paper discusses the effectiveness of mediation in the settlement of divorce cases at the Tuban Regency Religious Court, because divorce cases are cases that occupy the highest ranking in the Religious Courts. The focus of the study is the implementation of mediation in divorce cases, the effectiveness of Tuban mediation, what are the obstacles in the implementation of mediation in divorce cases at the Tuban Religious Court.

Revizija švajcarskog zakona o arbitraži

Arbitration is a popular method for the effective and efficient resolution of commercial disputes. Switzerland, with its tradition of neutrality and cultural diversity, has become one of the leading places for arbitration worldwide. In 2021, Switzerland enacted its revised arbitration law, Chapter 12 of the Swiss Private International Law Act. e revision introduced new provisions, which make the arbitration law more accessible for foreign users. At the same time, the legislator avoided overloading the law with unnecessary provisions. e Swiss arbitration law remains concise and straightforward and will continue to serve the international arbitration community well.

From Healthcare to Hiring: Impacts of Social and Public Policy on Disabled Veterans in the United States

Part I of this paper considers the historical foundations, motivations, and evolution of veterans' disability and employment legislation in the United States. Utilizing disability and employment as its framework, Part II then defines, describes, and critiques contemporary policies for disabled veterans in the areas of federal employment protections and uses of Alternative Dispute Resolution (ADR) within the VA's disability decision review process. Part III discusses the roles played by disabled veterans and the federal government in policy reform, finding that both sides act as catalysts and barriers to legislative change. This paper concludes in Part IV, recommending legislation that integrates elements of disability care--currently under the auspices of the VA--into Medicare. Through this newly created insurance component, which this paper will call "Medicare Part V," disabled veterans will be eligible to access all hospitals and clinics currently accepting Medicare. This is anticipated to increase access to care in local facilities. Second, it is essential that the federal government devotes sufficient resources to conduct more longitudinal data collection studies, enabling a more comprehensive assessment of the transitional and employment resource needs of disabled veterans over time. Achieving a greater understanding of these needs may induce greater veteran participation rates in the labor force, benefiting employers and veterans alike. Finally, this paper calls for modernizing and optimizing the VA's claim appeals process by creating a secure online method of Alternative Dispute Resolution for appeals, specifically in Higher-Level Reviews (HLR's) of disability and compensation requests.

ПРИМИРИТЕЛЬНЫЕ ПРОЦЕДУРЫ КАК АЛЬТЕРНАТИВНЫЕ КОНСТИТУЦИОННО-ПРАВОВЫЕ ГАРАНТИИ РЕАЛИЗАЦИИ ПРИНЦИПОВ СУДЕБНОЙ ВЛАСТИ

The principles of judicial power, acting as the fundamental principles of its implementation, require special scientific and practical attention due to the importance of their implementation. Guarantees are an effective legal instrument for ensuring them. Based on this, this article presents the author’s approach to alternative constitutional and legal guarantees for the implementation of the principles of judicial power; their original interpretation is given, as well as the characteristics of conciliation procedures. The article reveals the content of judicial reconciliation as a kind of conciliation procedures; the directions for improving a new method of dispute and conflict resolution for Russia are identified.

On the issue of mediation as an alternative method of dispute resolution

On the issue of mediation as an alternative method of dispute resolution

Historical aspects of the emergence of mediation as a form of protection of intellectual property rights

According to Art. 1 of the Constitution of Ukraine is a social, democratic and legal state. Its development, in accordance with constitutional provisions, is impossible without effective means of protecting human rights and freedoms, including rights to intellectual property objects. It is worth noting that in modern conditions, intellectual property is developing rapidly, its objects are becoming more widespread, so it needs proper protection. The reason for the violation of intellectual property rights is the nature of the objects themselves, which makes it possible to easily and quickly reproduce and distribute them. In world practice, various forms of protection of these rights are used. But protecting them in court, as a rule, requires a lot of time, money and effort. Therefore, mediation is increasingly used as a form of protection of intellectual property rights. An important condition for the integration of our country into the European Union is the creation of a legal framework that would meet international standards, in particular in the field of intellectual property. It is important to adopt the positive experience of foreign countries in the field of legal regulation and functioning of alternative methods of dispute resolution. It should be noted that mediation in Ukraine is just beginning its development, however, on the basis of international standards and experience, we can analyze which aspects of legal regulation need to be improved, in particular for the protection of intellectual property. The use of mediation in the field of intellectual property in Ukraine would contribute to the improvement of the efficiency of dispute resolution, would improve the legal mechanisms for the protection of rights and legitimate interests, and would harmonize the current national legislation with international standards in this area. The purpose of this article's research is the issue of using mediation to resolve conflicts and protect rights to intellectual property objects.

A Closer Look at the Doctrine of Separability in Arbitration

In the ever-growing business world impacted by globalization, many commercial contracts nowadays contain an arbitration clause. This article focuses on the history behind arbitration as an alternative method of dispute resolution and its penetration to the forefront of mechanisms for resolving commercial disputes—with focus on England, France, and the United States. The article also delves into some of the key questions related to the relationship between an arbitration clause and the underlying contract in which it is contained. And those are the infamous separability and competence-competence doctrines. The author’s conclusion is that the efficiency of an arbitration clause is feasible only if its autonomy is entrenched and safeguarded from preventative and baseless court intervention. In that regard, the author addresses the consequences, current challenges, judicial and academic discourse, and the need for improvement when it comes to these two arbitral principles—all with the goal to provide contracting parties with forethought as to what to consider when drafting their contracts as to avoid unwelcome consequences.

Mediation in Montenegro

Montenegro is creating a legal environment for the development of alternative dispute resolution methods with the intention of implementing contemporary international standards for dispute resolution. Mediation has officially existed in Montenegro since 2005. In 2018, Montenegro started with a comprehensive reform of its ADR system aimed at the improvement of the legislative and institutional framework, further promotion of ADR and improvement of the quality of mediation services through continuous training of mediators and qualitative evaluation of their work. The new Law on Alternative Dispute Resolution was adopted in 2020, according to which the Centre for ADR, as a public authority, is the key body executing the largest number of activities aimed at the further development and improvement of ADR in Montenegro.