Dispute Resolution Methods Research Articles

Mandatory Pre-trial Procedure for the Settlement of Disputes in Civil Procedure (Analysis of the Application of Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation)

The provisions of the arbitration procedural legislation on the pre-trial procedure for the settlement of the dispute are additional requirements to the filing to the court in comparison with civil procedural legislation. According to the legislator, on the one hand, these requirements encourage the independence of commercial organizations and individual entrepreneurs in the settlement of economic disputes, on the other hand, indicate the desire of the legislator to reduce the number of arbitration disputes and increase the effectiveness of justice. About three years have passed since the appearance of the norm in question and some conclusions can be drawn regarding its application by the courts. The authors of the article draw attention to the problematic aspects of law enforcement practice: categories of disputes when the application of pre-trial procedure is mandatory; compliance with the form, content, deadlines for submitting a claim; assessment by the court of the actions of the parties to resolve the dispute before going to court; overall effectiveness of the existing order. The authors conclude that the goal set by the legislator before the pre-trial procedure (an alternative pre-trial method for the resolution of disputes, designed to provide faster, less formalized and costly dispute resolution in comparison with the judicial process) is not achieved.

The demand for civil justice in Germany: an empirical investigation

ABSTRACT The demand for civil justice in Germany has shrunk over the last decades, although we can observe a high level of heterogeneity, with increasing and decreasing trends depending on specific case matters. The present work investigates this phenomenon, analyzing the aggregate demand for civil justice between 2008 and 2017 at the regional level, and focusing on the courts. We study the propensity of individuals to pursue justice according to the current economic, judicial and socio-cultural environments. We identify a statistically significant negative relation between economic development and the aggregate demand for civil justice, i.e., we cannot reject the hypothesis that the so-called ‘forgiving’ behavior might be predominant among the explored dynamics. However, considering the judicial environment, it emerges that judicial performance might discourage people from submitting cases to courts, lending strength to a different hypothesis, i.e., an increase in the use of alternative methods of dispute resolution on the private market of legal services. Finally, looking at socio-cultural dynamics, the authors observe statistically significant differences between the demand for justice in the West and the East of Germany.

Процедура медиации как вид примирения в современном гражданском процессе России

Mediation technologies are one of the alternative to judicial methods of dispute resolution. Difficulties in the application of this institution, which is practically not used by the parties to the conflict, predetermined the need for its reform, as well as the creation of a whole complex of conciliation procedures, their legislative consolidation and stimulation. The article analyzes the practice of the parties to the dispute to the mediation procedure that existed before the entry into force of the Federal Law of July 26, 2019 No. 197-ФЗ ‘On Amending Certain Legislative Acts of the Russian Federation’, as well as the short stories of the civil procedural law on conciliation procedures in general that can be used after October 25, 2019.

Associate Agreements: Negotiating Hidden Pits Falls and Benefits

ome of the significant factors to consider with an associate agreement are whether the associate dentist will be classified as an independent contractor or employee, provisions to protect the trade secrets of the practice and a workable method of dispute resolution.

Mediation in civil proceedings during the COVID-19 pandemic

The article deals with the problems of implementation of the mediation procedure in civil proceedings and the technical possibilities of distance mediation, prospects for implementation, as well as the legal and social consequences of using this method of dispute resolution during the COVID-19 pandemic. The authors emphasize the importance and necessity of using distance mediation, especially during the COVID-19 pandemic, as it allows resolving civil cases without a health risk. Emphasis is placed on what difficulties may arise in choosing this particular way for resolving the dispute and possible ways to overcome them. It is noted that many problems arise, primarily due to the fact that mediation has not yet found its place in a separate law. The article gives a detailed analysis of how a mediator can ensure the confidentiality of the procedure and which his actions are possible if it is impossible to conduct it remotely. In contrast to mediation, which due to the flexibility of the procedure can take place remotely, a parallel is drawn with the traditional dispute resolution, in courts, as well as the reasons for the ineffectiveness of distance format in choosing this method and the advantages of mediation in this case. It is spoken in detail about the issue of conducting mediation in other countries and shown the conclusions, which summarize the solutions for overcoming problems, their effectiveness and experience for Ukrainian mediators, which can be borrowed from foreign professionals. Examples of solving the problems, caused by the pandemic, in distance mediation considered by the examples of France, the United Kingdom, and some states of the United States. The article draws attention to the fact that civil cases are best resolved through the mediation procedure, and under quarantine - remotely. It is emphasized that civil cases often meet all the criteria of the eligibility for mediation in contrast to criminal, economic, administrative cases and cases of administrative torts.

Perspectiva constitucional dos meios privados de resolução de conflitos

O objetivo deste artigo é delimitar a posição que os métodos privados de resolução de conflito ocupam no ordenamento constitucional brasileiro. Mais especificamente, o que se busca é aferir se esses métodos podem ser abrigados sob o sistema protetivo das cláusulas pétreas, considerando que os seus usos se relacionam com o acesso à justiça interpretado no inciso XXXV, artigo 5º da Constituição de 1998, o qual, na qualidade de garantia individual fundamental, é resguardado pelo artigo 60, parágrafo 4º, inciso IV. Assim, o caminho percorrido aqui será identificar se e em que medida o uso dos métodos privados de resolução de conflitos se insere no núcleo daquela garantia. Tal relação será exposta com recurso à análise filosófica do tema sob a perspectiva do Contratualismo e a temas da teoria geral do direito relativos ao poder soberano e à jurisdição, por meio do método hipotético-dedutivo e de revisão de literatura e análise documental.

АЛЬТЕРНАТИВНЫЕ СПОСОБЫ РАЗРЕШЕНИЯ СПОРОВ С УЧАСТИЕМ ПОТРЕБИТЕЛЕЙ

The need to develop alternative dispute resolution methods has long been known, but most of all out-of-court dispute resolution is required in consumer relations. The expansion consumer access turn to dispute resolution and filing complaints even for small requirements will help to increase respect for consumer rights and, in general, create a favorable economic climate. The lack of a legal basis for resolving consumer disputes hinders the effective protection of their rights and is not typical of foreign legal systems. In this regard, the draft Federal law “On Amendments to the Law of the Russian Federation ‘On Consumer Rights Protection’ and the Federal Law ‘On Alternative Dispute Settlement Procedure with the Participation of a Mediator (Mediation Procedure)’ in Order to Create a Legal Basis for the Development of Alternative Online Dispute Resolution” has been prepared. The article analyzes this draft law, compares the projected norms with approaches implemented in foreign legislation, and suggests measures to improve the current legislation on the protection of consumer rights by creating an online platform for the settlement of consumer disputes.

The China International Commercial Court: towards an integrated dispute resolution system

ABSTRACT The recent proliferation of international commercial courts has become a distinct phenomenon in the landscape of international dispute resolution. While the newer international commercial courts have followed the earlier ones and exhibited features of ‘specialisation’ and ‘internationalisation’, some have gone further to develop a new feature of ‘integration’ by incorporating elements of other methods of dispute resolution—notably, arbitration—into their design and operations. In this regard, the newly established China International Commercial Court (CICC) breaks new ground by creating a ‘one-stop’ and diversified dispute resolution mechanism, which institutionally integrates litigation, arbitration, and mediation into one unified platform. This mechanism is guided by the idea of ‘diversified dispute resolution mechanism’ reform promoted and practiced by the Chinese judicial system; underpinned by institutional arrangements such as the International Commercial Expert Committee (ICEC) and the Coordination and Guidance Office of the CICC; and implemented by procedural designs that deeply integrate international commercial litigation with arbitration and mediation. By conceptualizing the mechanism as an ‘integrated dispute resolution’ (IDR) system, enhancing institutional cooperation and setting up demonstrative IDR centres, the CICC and the ‘one-stop mechanism’ can be further improved to provide an innovative ‘Chinese approach’ to international commercial dispute resolution, for the Belt and Road region and beyond.

Settlement of Belt and Road disputes between China and Central Asian countries

ABSTRACT This article looks at the dispute settlement mechanism of the Belt and Road Initiative (BRI) between China and Central Asian Countries in economic cooperation. By reviewing the main features of Central Asia’s geoeconomics and geopolitics and the status quo of trade and investment with China, this article analyses the key areas of cooperation under the BRI where disputes have occurred and are likely to occur in the future, as well as the shortcomings of existing dispute resolution methods. By comparing the regulations of competing dispute settlement arrangements, this article explores how to improve the dispute settlement mechanism between China and Central Asian countries under the BRI.

A Light on Dispute Resolution Methods with Special Reference To International Commercial Arbitration

A Light on Dispute Resolution Methods with Special Reference To International Commercial Arbitration

Exploration of the Countermeasures for the "Quick Protection" of Intellectual Property in the Pilot Free Trade Zone--Take Nanjing Area as a Case

The in-depth improvement of the quick protection of intellectual property rights in the pilot free trade zone is an inherent requirement for the further improvement of the intellectual property protection system in the pilot free trade zone in my country. At present, my country’s pilot free trade zone has made some preliminary explorations in terms of rapid dispute resolution, efficient law enforcement, and rapid authorization. However, there are still some bottlenecks in the rapid protection of intellectual property rights in my country’s pilot free trade zone, which are mainly reflected in the lack of professionalism in the intellectual property trial mechanism; the subject of multiple dispute resolution is not sound and lacks internal cohesive mechanisms; administrative law enforcement is not capable of resolving incidental civil disputes. In order to solve the above problems, It is necessary to categorize and set up secondary departments of my country’s IP Tribunal to improve the trial mechanism according to the characteristics of intellectual property rights; improve the civil and social entities involved in the resolution of intellectual property disputes, and establish a linking mechanism for trial and other dispute resolution methods; strengthen the ability of administrative enforcement of intellectual property rights to resolve civil disputes.

Protection of the rights of minors within the framework of school mediation services

The present work is devoted to mediation as an additional non-judicial method of alternative dispute resolution, exactly its sub-institute-school mediation, which is one of the components of the mechanism for protecting the rights of minors. The paper provides a definition of the term school mediation, defines its role in the educational organization, analyzes the need and feasibility of the widespread introduction of school mediation services.

Процедура медиации в судопроизводстве Республики Казахстан

The article deals with the issues that reveal the features of the legal regulation of the mediation procedure. The concept, goals, objectives of mediation, principles, introduction of mediation in civil and criminal proceedings, which contributes to the creation and development of the Republic of Kazakhstan effective mediation. Law enforcement practice shows that since the adoption of the Law "On mediation", this method of resolving legal disputes has been rapidly developing and increasingly perceived internationally as the universal method of dispute resolution. To date, practice has shown that mediation is mainly implemented in the settlement of private-legal conflicts, much less often it is used in the field of criminal proceedings.

Doping Disputes in International Sports

As the international development trend of sports continues to increase, various sports disputes have also increased. Among them, doping disputes, as the main type of disputes in sports arenas, have attracted the attention of all parties. Arbitration, as an important method of dispute resolution, is increasingly used in the resolution of doping disputes in practice, and it is also respected by many countries and sports circles. The purpose of this article is to study doping disputes in international sports arbitration. This article discusses the causes and harms of doping disputes, and analyzes its characteristics different from general sports disputes. Then it introduces the existing solutions to doping disputes, mainly including internal institutional resolution, litigation and arbitration. Sports arbitration has become the most important solution for such disputes because of its fairness, justice and efficiency. This article points out the specific problems of the International Court of Arbitration for Sports in applying the rules of evidence in the handling of doping cases, and proposes corresponding improvement suggestions, including expanding the scope of existing evidence discovery and constructing evidence based on limited discovery. This article uses interview method, questionnaire survey method and mathematical statistics method to investigate and research the current situation of anti-doping education in this province with the young athletes participating in the provincial sports meeting as the survey object. Studies have shown that the average annual number of specialized anti-doping training for excellent national sports teams is concentrated in 1 and 2 times, while the average annual specialized anti-doping training of provincial sports schools and scattered amateur sports schools is concentrated 0-1 times. It can be seen that special anti-doping training in provincial and municipal sports schools and scattered amateur sports schools needs to be strengt hened.

Foreign experience in the implementation of mediation as an alternative method of conflict resolution (the German example)

The transformation of mediation as an alternative method of dispute resolution in Germany since the XIX century is considered. Particular attention is paid to the analysis of the main stages of the formation of mediation in Germany in order to determine the legal nature of mediation. The legal regulation of the mediation procedure in Germany and the requirements for the mediator are in the Federal Law «On the Development of Mediation and Other Methods of Out-of-Court Dispute Resolution» 2012 codified the legislation on mediation and related alternative dispute resolution procedures. The main ideas of this legal act were: voluntary mediation, autonomy of the will of the parties, full awareness of the parties about the mediation process, the obligation to implement the agreement reached by the parties in the mediation process; ensuring the confidentiality of the mediation procedure; suspension of the statute of limitations for the duration of the conciliation agreement. A characteristic feature of the definitions of "mediation" and "mediator" in the Law is the expression through them of the basic principles of the procedure, such as confidentiality and voluntariness of mediation, responsibility of the parties, neutrality of the mediator. This approach makes German law more concise and eliminates the need to include a separate article listing the principles of mediation. German law does not set requirements for the legal form for the provision of mediation services – it can be both individuals and legal entities. It should be noted that today in Germany mediation competencies are considered as one of the «compulsory elements of qualification" of law students. The priority of consolidating the legal regulation of mediation in the Ukrainian legislation is determined.

The role and importance of odr in modern business society

ODR procedures involve the filing of electronic documents in which the parties can use encryptionor electronic signatures to protect the integrity of documents and authenticate transactions. Typically, when parties turn to ODR for help,a service provider allows for the appointment of a neutral panel of judgesor panelists. Parties generally prefer structured and clear procedures where the authorisation process is simple and well defined. Institutions such as WIPO, SIAC and ICC have positive track records in resolving online disputes through mediation or other alternative methods of dispute resolution.

A Utopia or Reality: Possibility of Using the Proper Law of Contract throughout an International Commercial Arbitration Claim

International commercial arbitration has become the most favoured method of dispute resolution in the international arena since it has the capability of providing a win-win situation for the parties involved in the dispute which is not available under ordinary litigation. However, since arbitration is a matter of choice for the parties, the concept of party autonomy sometimes makes the arbitration process a difficult one to be conducted with the vigor that is found under court proceedings. One main reason for this can be seen in the multiplicity of laws that are involved in settling the dispute from the agreement to arbitrate to enforcing the claim. This article therefore looks at the possibility of adopting the proper law of contract to be applied throughout the process of arbitration in settling the dispute. Using the doctrinal approach by using international legal instruments, statues and decided case law as primary sources and using scholarly articles and books written on the subject, the results have shown that, while being highly optimistic, such an endeavour is not still possible since there is no single international legal document which deals with the whole process of arbitration and in such an absence, it seems difficult at the moment to use a single system of law throughout the arbitration process. Nevertheless, the article makes suggestions as to how such a mechanism could be implemented and the possible prospects and challenges in making this utopia a reality.

Trends in the development of accessibility to civil rights protection

The purpose of the study is to analyze the legal regulations that cover the procedures for resolving disputes without judicial proceedings for their subsequent development and popularization. In the course of the study, in combination with a comprehensive and systematic analysis, the following general scientific cognition methods were used: dialectical, hermeneutic, synthesis, the method of ascending from the abstract to the concrete, the method of generalization and comparison. The results of the study are as follows: justice, being a necessary element of building the rule of law, should be supplemented and improved through alternative ways of resolving conflict situations. The latter shall develop civil jurisdiction and resolve disputes on a highly professional basis. It seemed that the creation of a single procedural form would be a guarantee of the effectiveness of the protection of rights, but in contrast to this idea, there was created a procedural code that regulates administrative jurisdiction. In this regard, it seems promising to develop alternative dispute resolution mechanisms, which are simpler models of protection of violated interests than the court. Therefore, the novelty of the study is in the justification of the need to identify patterns of improving access to legal protection through the use of alternative methods of dispute resolution.

Prednosti arbitražnog u odnosu na sudsko rešavanje radnog spora

An employment dispute is a dispute between a single worker and the employer, or between a trade union and employer or association of employers. The division of employment disputes is important because it indicates the method of the settlement of labour disputes. According to Serbian legal system, employment disputes can be settled in court or using one of the alternative labour dispute resolution methods (arbitration, conciliation, mediation). Based on the Law on the Amicable Settlement of Employment Disputes, an institution for the peaceful settlement of labour disputes was established - State Agency for Amicable Settlement of Employment Disputes. Arbitration is always voluntary. The Agency is to be in charge only if both parties accept to solve the dispute using arbitration. An individual employment dispute can be solved using arbitration only if that is allowed by work contract or a general employer act. A collective dispute can also be solved using arbitration. If one of the parties does not want to use an alternative method for solving the problem, arbitration cannot be an option. In that case, the only way to protect its rights is in court. The process of settling a dispute in court before a judge is an extremely strict and formal procedure required by law. The court is obligated to determine relevant facts and make a decision based on them. The judgment is binding for the parties and can be forcedly executed. Protection of rights is accomplished when the judgment or arbitration decision is made and executed. The arbitration decision can be voluntarily executed, unlike the judgment that can be forcedly executed. The arbitration decision cannot be forcedly executed and that is the main disadvantage of the arbitration. The arbitration procedure needs to be improved in order to guarantee the protection of rights.

Trial By Combat in the Modern World

The ancient practice of trial by combat was abandoned hundreds of years ago and has never been employed in America. This has not stopped litigants and others from demanding trial by combat in infrequent — a tactic which, while infrequent, implicates deeper questions of the history of American law. In the past several years, several high profile demands for trial by combat have prompted media attention and caused several commentators to suggest that trial by combat may be an option for civil litigants. Most coverage and commentary only focuses on each instance of trial by combat as they arise — without attention to other examples of demands or references to trial by combat in modern American law. No more. This Article provides a systematic discussion of modern demands and references to trial by combat in American courts. From cases in the early 1800s, to Rudy Giuliani’s infamous call for trial by combat on January 6, 2021, this Article surveys demands and mentions of trial by combat, and how courts have treated such demands. This Article examines what motivates parties who seek trial by combat, noting that the popular television series, Game of Thrones likely plays a role. This Article then examines parties’ legal arguments for trial by combat, finding that they ignore relevant precedents and take a skewed view of history. Recent demands for trial by combat prompt widespread media coverage — coverage which often suggests that trial by combat may be a possibility for litigants. This Article provides historic context for this discussion and, following a systematic review of cases involving or referencing trial by combat, concludes that such demands are not only legally baseless, but that they almost invariably will harm the demanding party’s case. Still, this Article does not count out the possibility that parties may privately contract for a dispute resolution method that mirrors aspects of trial by combat — particularly if such a contract is crafted in a manner that puts both parties on an equal playing field and minimizes the chances of physical harm. While physical trial by combat between parties or champions may be a historic relic, the possibility for parties to agree to virtual trial by combat or similar dispute resolutions remains. And even though demands for trial by combat in court are likely to fail, this has not stopped litigants from making them for centuries, and parties will likely continue to do so in the decades and centuries to come.