Dispute Resolution Methods Research Articles

A Research on International Commercial Arbitration with reference to the Brexit

International commercial arbitration is an alternative method of dispute resolution. It is regarding disputes arising out of commercial transactions conducted across national boundaries and it allows the parties to bypass litigation in their national courts. The aim of the researcher is to understand how the position of London as the favoured seat of Arbitration will change after Brexit. Secondly, the paper also focuses on the use of international arbitration as a tool to solve investor-state disputes. The present paper was analysed through the non-doctrinal research methodology and empirical and descriptive method of research was used. The present analysis was made through random sampling method where the survey was taken from common public, professionals, etc through a structured questionnaire. The sample size in the present analysis is 1669 samples. The research tools used in the present paper are cross tabulation, chi-square and frequency. It can be concluded that the position of London as the popular seat of arbitration will not be affected as the English Law is generally considered as the immediate choice of law for around most of the commercial contracts. Secondly, as far as investorstate dispute resolution is considered, arbitration can become a popular choice in future after the amendments were made in 2017 to make it more transparent and cost efficient.

‘Where Only Women May Judge’: Developing Gender-Just Islamic Laws in India’s All-Female ‘Sharī‘ah Courts’

AbstractOver the last four years, India has become the centre for a major experiment in the implementation of a so-called ‘gender-just Islam’ by Islamic feminist organisations: the formation of a non-official, female-led sharī‘ah court network, within which women serve as qāẓīs (religious judges) to adjudicate disputes within Muslim families. Pre­senting themselves as counterweights to more patriarchal legal bodies, including both the official judiciary and unofficial dispute resolution forums, these sharī‘ah ‘adālats employ both state-centred and community-focused strategies to assist Muslim women experiencing marital or family-related strife. Based on interviews with female qāẓīs and associated documentary sources, I examine how the women who run these courts adjudicate family conflicts according to what they understand as both the Qur’an’s ethical teachings, and its stipulations regarding the proper methods of dispute resolution. I also argue that these all-female sharī‘ah ‘adālats reflect a shift of focus away from court litigation and legislative intervention, and towards non-state, arbitration-focused practices, as the most fruitful means to protect the needs of Muslim women in contemporary India.

Lawyers' Views of Decision-Making in Child Protection Matters: The Tension between Adversarialism and Collaborative Approaches

Outcomes in child protection cases impact substantially on children and families. Decisions in child protection matters must, therefore, be made with due caution and sensitivity. In order for the best outcomes to be achieved for children and their families, research suggests that decisions should be made collaboratively, and proceedings should be less adversarial in nature. At the same time procedural rules should be rigorously adhered to when decisions of a serious nature are being made, particularly where State interference in individuals.' lives has occurred or is being contemplated. Thus, there is a tension in the child protection context between the use of informal dispute resolution methods, and the need to safeguard the rights of children and families. This tension is explored in this paper, with particular reference to the principles of natural justice and the rules of evidence. The discussion is informed by empirical research undertaken with child protection lawyers in Queensland. The authors conclude with some suggestions for reform which reflect the ideal of collaboration without compromising the need for procedural fairness.

Amicable Methods for Collective Dispute Resolution—Selected Legal Issues

The article deals with the issue of asserting the rights and interests of all employees who enjoy the representation of trade union organisations in their disputes with the employer. The aim of the article is to give a detailed presentation of issues related to collective labour disputes.
 To achieve this aim, the stages at which the rights and interests underlying collective labour disputes are presented in detail. This study employs the dogmatic-legal method. The author carries out an analysis and interpretation of the provisions relating to collective labour disputes in the field of labour law. It was vital to examine the legal norms established by the legislator. A description and systematisation of the applicable legislation was also conducted. Issues relating to the resolution of collective disputes in the workplace are presented theoretically with a detailed discussion of the specific stages.
 This presented work is divided into four parts. The first presents the basic notions related to collective labour disputes. The sections that follow present the problems involved in the particular stages of claims enforcement based on employment relationship, i.e. bargaining, mediation, and arbitration. The rules for joining specific stages of resolving the above mentioned disputes were also discussed.
 To a large extent, the issues elucidated here bring the reader, and above all entities involved in collective labour conflicts, closer to the methods of asserting their own rights and interests.

“Judicial Convention” as a New Stage in the Recognition and Enforcement of Foreign Judgments

In May 2018, at the 4th and final meeting of the Special Commission of the Hague Conference on Private International Law, the draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters that had been developed since 1992 was represented. It is expected that after the Diplomatic Session that will be held in the mid-2019 the draft will be finalized and the Convention will be adopted and opened for signature.In this regard, the article attempts to analyze the main provisions of the draft Convention and assess the appropriateness for the Russian Federation to access it, taking into account the fact that Russia has a limited number of international treaties permitting recognition and enforcement of foreign judgments in Russia and decisions of Russian courts abroad. Based on the results of the analysis, the author concludes that the adoption of this Convention will provide for a simple and effective basis for the recognition and enforcement of foreign judgments eligible for States with different legal, social and economic circumstances. This, in turn, will increase the practical value of court decisions ensuring the most comprehensive protection of the rights and interests of the party in whose favour the decision has been made and, as a consequence, will contribute to the attractiveness of this method of dispute resolution for parties involved in cross-border private law relations.However, the mixed attitudes of the EU and the USA to the Draft Convention raises the question of their accession to the future Convention and may significantly reduce the impact of the adoption of the document under consideration.

The reforming Chinese chapter of international dispute resolution under the belt and road initiative

As an increasingly important player in the international economy, China intends to contribute more to the improvement in international dispute resolution. To achieve the Belt and Road Initiative (BRI), China is actively coordinating its legal system to present an improved Chinese chapter of the international dispute resolution regime to facilitate increasing international trade and related national policies. Escalating conflicts with the United States have strengthened China’s determination to actively participate in international dispute resolution. This article presents a complete picture of the Chinese legal international dispute resolution regime and addresses several important innovations inspired by the BRI in the Chinese legal system. This article also elaborates on the latest developments in various dispute resolution methods that could provide more efficient dispute resolution services to both domestic and foreign disputants.

A review of the legislative reform of customary arbitration in Ghana

Due to the phenomenon of legal pluralism that colonial rule left in its wake, customary arbitration is still a method of dispute resolution in Ghana despite the formal judicial system. But until 2010, customary arbitration practice was regulated only by case law. To put it on a firmer legal foundation and streamline its practice and procedures, the Alternative Dispute Resolution Act 2010 codified customary arbitration as an ADR method. In this article, we examine the legislative reform of customary arbitration in Ghana and assess the extent to which the ADR Act has improved it.

Latest developments in conciliation and mediation in investor-state disputes

Over the last decades, investor-State disputes have drastically increased in number. Most of these disputes are resolved through arbitration. The increase of the arbitration proceedings in investor- State matters is due to the high number of bilateral investment treaties and free trade agreements (“IIAs”) containing an arbitration clause which the dispute is based on. IIAs do not include only arbitration clauses: they also offer the parties other ways to settle their disputes through negotiation, conciliation and mediation. Research today suggests that conciliation and mediation have been rarely used in investor-State dispute resolution. The purpose of this article is to investigate the reasons why ADRs are still underused in the settlement of investor-State disputes, by analysing its pros and cons. The author will look into the current international legal instruments dealing with conciliation and meditation in investor-State disputes and will analyse the latest developments in the field. The article does not conclude that alternative dispute resolution methods should replace arbitration in investor-State matters: it rather suggests that, depending on the circumstances of the case, conciliation and mediation might be efficient mechanisms to settle disputes, alone or alongside arbitration procedures.

The judicial reconciliation in Appeal suit

소송은 소제기 전의 교섭을 통해 분쟁을 해결할 수 없었기 때문에 소를 제기하기에 이르렀고, 종국적으로 법원의 판결에 의하여 종료하는 것이 일반적이다. 하지만 법원의 판결에 의한 분쟁해결 방식만이 아닌 분쟁의 실체에 접근할 수 있는 다양한 해결수단의 필요성이 요구되어 왔다. 이를 반영하여 민사소송에서는 당사자의 합의에 의해 소송을 종료하는 분쟁해결 방식으로 소송상 화해를 허용하고 있다. 소송상 화해는 소송의 계속 중에 당사자의 청구에 의하여 양당사자가 소송물인 법률관계에 관한 주장을 서로 양보하여 합의 한 결과를 화해조서에 기재하는 것에 의하여 소송을 종료하는 행위이다. 항고소송에서도 판결에 의하지 아니하고 당사자의 의사에 의하여 소송을 종결하는 것을 고려할 수 있다. 행정소송법 제8조 제2항은 「행정소송에 관하여 이 법에 특별한 규정이 없는 사항에 대하여는 법원조직법과 민사소송법 및 민사집행법의 규정을 준용한다.」고 규정하고 있다. 이 글에서는 민사소송법 제220조에서 허용하고 있는 “소송상 화해”를 소재로 하여 항고소송에서 행정소송법 제8조 제2항의 준용과 관련하여 나타나는 논쟁사항에 대하여 분석·검토하였다. 행정소송법 제8조 제2항 준용규정을 적용하여 항고소송에서도 화해에 의하여 소송을 종결하는 것을 허용할 수 있는지에 대해서는 부정적 혹은 긍정적으로 평가하는 입장으로 나뉘어 있다. 이러한 인식의 차이는 첫째로, 민사소송법상의 소송상 화해에 관한 규정 등을 준용하는 것이 항고소송의 성질에 반하는지 여부와 관련되어 있음을 확인하였다. 둘째로, 행정법의 영역에서의 실체법적 특성 및 행정소송법상의 원리·원칙과의 충돌의 문제와 관련되어 있음을 확인하였다. 결국 민사소송과 항고소송은 그 성질상의 차이가 있다는 점에서 행정소송법 제8조 제2항 준용규정의 적용범위와 관련하여 항고소송의 성질에 반하지 않는 한도 내에서 민사소송법의 규정이 준용될 수 있으며, 항고소송의 성질에 반하는 경우라면 민사소송법을 그대로 준용할 수 없다는 고려가 작동하고 있음을 확인하였다. 따라서 민사소송법이 항고소송에서 준용되는 경우라도 민사소송법상의 원리·원칙 및 개별규정의 적용이 원칙적으로 타당한 것과 그렇지 아니한 것은 구별되어야 할 것이다. 그러므로 민사소송법의 규정을 항고소송에서 준용하는 경우 이러한 점을 고려하여 적용 가능성 여부를 판단하여야 할 것이다.The lawsuit is finally terminated by the court’s decision. Civil action allows reconciliation in a dispute resolution way in which a lawsuit is terminated by agreement of the parties(Civil Procedure Act, Article 220). The settlement is a legal proceeding whereby a judge hears allegations of the parties in dispute, and taking various factors into account, either advises them to make mutual concessions and to seek a compromise solution or renders a compulsory decision to that effect. The civil reconciliation proceedings are very useful methods for dispute resolution that they are more convenient, expeditious and inexpensive than adjudication proceedings, and lead to the ultimate resolution of disputes through an agreement by the parties. Appeals suit may also be considered to close the case by the parties intention, not by the judgment. But, the Administrative Litigation Act does not have a substantive provision for reconciliation. On the other hand, the Administrative Litigation Act regulates that With respect to the matters not provided for in this Act concerning administrative suits, the provisions of the Court Organization Act, the Civil Procedure Act, and the Civil Execution Act shall apply mutatis mutandis. (Article 8(2)). Therefore, focused on the reconciliation in a suit permitted by Article 220 of the Civil Procedure Act, it was analyzed and arranged in relation to the disputes arising in connection with the application of Article 8, Paragraph 2 of the Administrative Litigation Act. From this point of view, this paper was studied a legal issues related to apply mutatis mutandis of the Civil Procedure Act in appeals suit. This paper is organized as follows; Chapter Ⅰ. Preface Chapter Ⅱ. Reconciliation in the Civil Action Chapter Ⅲ. Theories on the admissibility of reconciliation in the appeals suit Chapter Ⅳ. Analysis and Comment Chapter Ⅴ. Conclusion

Online Mediation: a Game Changer or Much Ado About Nothing?

This paper focuses on the phenomenon of Online Mediation, which is gaining in popularity in recent years. Being part of the Online Dispute Resolution family, this particular method is the one applied most often. The very idea of disputes being heard and resolved in the global network seems exciting and quite appealing to some, while for others it presents a source of major concern. New technologies influence the ways parties and the neutral interact, share ideas and reach a settlement. Moreover, they have a clear impact on how people evaluate the other party, their mediator and the whole procedure they are involved into. This makes trust a significant issue for online mediation, one that is not so easy to establish while relying on the old techniques. Another important thing is the absence of positive regulation for the sector. In spite of recent instruments adopted by the EU, online mediation is still a field largely unknown to lawyers, consumers, business players and national regulators. The present article aims at clarifying the notion of ‘online mediation’ (which, surprisingly, has not been properly done yet), showing some of the most obvious benefits and drawbacks of this dispute resolution method (a deeper, more profound look on them will only be possible over time, when online mediation proves itself in practice and more statistical data are available) and providing valuable remarks on the solutions for the problems determined.

A Review about FIDIC Contracts in Saudi Arabia

Objectives: This research aims to clarify the role of FIDIC contracts used by the countries, especially in Saudi Arabia, in representing the global consulting engineering industry, to be global, effective and more quality and clarifying dispute resolution methods resulting from the implementation of FIDIC contracts. Methods: FIDIC contracts are contracts of great importance and value; most of these contracts are large contracts or technology transfer agreements and they are often parties to countries or public bodies. In the Saudi Arabian kingdom, an FIDIC contract is widely used for construction projects. However, the project performance still faces several problems, such as delays and additional costs, which are the consequences of disputes. Findings: FIDIC contracts are the most important and most commonly used model contracts in the construction industry around the world. They are also applicable to local and international standards. The FIDIC contract also shows all the terms related to the structural work and defines them in a simple way to make the work system clear to all without ambiguity or ambiguity. FIDIC contracts give multiple rights to the contractor and the engineer who supervises the execution of the works has wide powers, supervisory powers and a quasicontrol role when issuing a decision or a judgment during the implementation of the project or when a dispute occurs. Keywords: FIDIC Contract, FIDIC Contractor, FIDIC Disputes, FIDIC Employer, FIDIC Engineer

DISPUTE RESOLUTION METHODS AVAILABLE IN INTERNATIONAL INSTITUTIONS (ECOWAS): A CRITICAL ANALYSIS

This paper examines the dispute resolution methods available in international institutions, with the ECOWAS as a case study. The research leading to the paper was doctrinal, analytical, and comparative. The doctrinal research approach involved the identification of the principles of law relevant to the subject matter of this paper and determining how and to what extent each of the rules applied to the research subject. The analytical component consisted of well-grounded, reasonable, and logical examination and documentation of the relevant aspects of the key variables in the subject matter of the paper. The research strategies were used to determine the value of the available dispute resolution methods to international organizations, as well as to identify the various ways in which the methods could better serve the needs of the organizations and their beneficiaries.The paper found that in line with the universal United Nations Organization Charter provision aimed at encouraging and ensuring peaceful settlement of disputes, ECOWAS provides for several ADR methods of dispute resolution in addition to armed settlement such as through the ECOMOG. The ECOWAS MediationGuidelines (EMGs) create methodical principles for mediators to become more successful in peaceful resolution of disputes and conflicts. Also, the EMGs stimulate culture-based mediation, preparedness at all stages of mediation, neutrality, gender sensitivity, consent, and impartiality, while ensuring that there is consistency with the ECOWAS and international standards.The ECOWAS emphasis on ADR methods to settle conflicts and disputes should be encouraged and strengthened because the methodsare credible, effective, and efficient among the member-States and their citizens.

El profesional en Ciencias Económicas y la resolución de conflictos

<p class="Pa2">Este artículo explica los métodos de resolución de conflictos al­ternativos del sistema judicial. A su vez, hace un resumen de cada uno de ellos y explica los requisitos que debe cumplir el profesional en ciencias económicas para ejercer como media­dor en la provincia de Chaco.</p>

Mediation and Millennials: A Generational Shift in Dispute System Preferences

Millennials have been the subject of intense media scrutiny for more than a decade. Studies have examined their social, financial, technological, and work habits. However, few studies have examined this generation’s attitudes or proclivities towards civil litigation. Such an examination presents two problems: First, the absence of data on litigants’ age makes an empirical study virtually impossible. Second, generalizations about an entire generation are inherently problematic, glossing over countless cultural, economic, familial, and demographic differences. Nevertheless, this Article argues that millennials’ experiences and educations have primed them, at the margins, to avoid litigation more than prior generations. Instead, this generation will be more likely to select mediation when a formal method of dispute resolution is required. Mediation, with its emphasis on compromise and self-determination, comports with many millennials’ financial risk-aversion as well as their uniquely interdisciplinary educations. Finally, this Article suggests that law schools must redouble their efforts to adapt their curricula to this emerging reality—especially given recent sociopolitical discord. Such adaptations include a greater focus on process choice at the outset of a dispute, better integration of practitioners as teachers, and broader clinical opportunities for students to act as both neutrals and advocates in mediation.

Advancing Dispute Resolution by Understanding the Sources of Conflict: Toward an Integrated Framework

Organizational leaders, public policymakers, dispute resolution professionals, and scholars have developed diverse methods for resolving workplace conflict. But inadequate recognition has been given to the idea that the effectiveness of a dispute resolution method depends on its fit with the source of a particular conflict. Consequently, it is essential to better understand where conflict comes from and how this affects dispute resolution. To these ends, this article uniquely integrates scholarship from multiple disciplines to develop a multidimensional framework to conceptualize the sources of conflict. This framework provides an important foundation for theorizing and identifying effective dispute resolution methods. Such methods are increasingly important as the changing world of work raises new issues, conflicts, and institutions.

As agências reguladoras e a arbitragem:

Um dos principais fatores de estímulo aos investidores a assumirem novos riscos, atraindo aporte de recursos necessários ao desenvolvimento dos setores regulados, consiste na possibilidade de se resolverem, com celeridade e eficácia, eventuais litígios decorrentes dessas atividades. O Poder Judiciário, imerso em demandas, não é atualmente capaz de oferecer a prestação jurisdicional no tempo necessário, sobretudo quando a questão envolve setores dinâmicos da economia, como aqueles regulados pelas agências. Esses litígios tratam invariavelmente de questões técnicas com alto grau de complexidade, e nem sempre o Judiciário reúne as características necessárias para resolvê-las adequadamente. Nesse contexto, a arbitragem instituída pela Lei nº 9.307/1996 apresenta-se como uma alternativa para a solução de litígios no âmbito do setor regulado. A arbitragem é, reconhecidamente, um dos meios mais eficientes para dirimir litígios complexos e com repercussões econômicas relevantes. O presente texto analisará a possibilidade de as agências reguladoras adotarem a arbitragem prevista na lei nº 9.307/1996 – instrumento reconhecidamente ágil, técnico e especializado – como método alternativo de resolução de litígios no ambiente regulado, buscando também definir os respectivos limites para a sua utilização nesse setor.

ANALISIS PENERAPAN PASAL 245 UU NO. 37 TAHUN 2004 TENTANG KEPAILITAN DAN PKPU DALAM (STUDI KASUS PUTUSAN NO:03/PDT.SUS-PKPU/2016/PN.NIAGA.JKT.PST.)

Bankruptcy has become a common problem in today's business world, under the Bankruptcy and Suspension of Payment Act, in addition to bankruptcy, one can do so through Suspension of Payment. Suspension of Payment is a method of debt-receivable dispute resolution which is supervised by a supervisory and administering judge, whose final legal product is peace or insolvency. Not all Debtors have good intentions, sometimes payments are made after Suspension of Payment's application is registered. According to the Article 245 of Law Number 37 of 2004 on Bankruptcy and Suspension of Payment, all payments made before the Suspension of Payment are not permitted, after the Suspension of Payment application has been applied for and has been registered at the commercial court in the district court. However there is a dualism of understanding of the prohibition, some claim that the payment is permissible, and some claim that the payment is not permitted. Many Debtors use these payments to abort the formal requirements of Suspension of Payment, which is not in accordance with the legal objectives of justice for all parties, because the usual payment is payment to only a portion of creditors, who have smaller debts, which makes other creditors not get legal certainty, and the consequence of that is that PKPU's application must be rejected. The purpose of this study is to find out how to apply Article 245 of Act No. 34 of 2004 as it should, so that it can be adjusted to the purpose of law, namely justice.

Arbitragem Como Método Adequado de Resolução de Conflitos nos Contratos Agroindustriais

This article aims to explore arbitration as an adequate and efficient dispute resolution method! for contractual relations in agribusiness. Firstly, the article focuses on the matters within the agricultural field that can be settled by arbitration. In the second part of this article, the author emphasizes the importance, the advantages and the effectiveness of arbitration as a proper mechanism in the field of agribusiness, notably to its players

Tahkim Alanında Toplumsal Cinsiyetin Yansımaları (Hakem Seçiminde Cinsiyet Çeşitliliği)

The concept of arbitration generally refers to resolution of disputes outside the state’s judiciary through an arbitrator or an arbitral tribunal for subjects that are arbitrable. If the works regarding the history of arbitration are examined, it will be seen that this concept was existent for a long period of time. However; in today’s modern societies, arbitration as a dispute resolution method is based on rules that are accepted by each country through national and international legislation. Arbitration is being used more often by modern societies as a dispute resolution method, especially with the fast changing and developing commercial relationships among companies. Together with this, around the globe it is seen that there are less women working in the field of arbitration compared to men and there are several factors causing this. The aim of this article is to determine the problems that are causing gender inequality in the field of arbitration. Women that show effort in order to be appointed as arbitrators in arbitral tribunals in an international scope require to work and gain more experience compared to men in order to overcome the obstacles that are either visible or invisible. When we examine the situation in Turkey, since there is not sufficient statistical date on number of woman taking part in arbitral tribunals in Turkey, it is not possible to give a ratio in this matter. Still, arbitration is open for development and support in terms of enhancing the number of woman arbitrators in our country. Necessary work should be done in order to develop and generalize this field.

Doğu Tahkiminin İslami Finans Uyuşmazlıklarını İngiliz Mahkemelerinin Elinden Alma Yolundaki Süreci

<span style="color: rgb(0, 0, 0);">Over the last decades the exponential growth in Islamic finance and the globalization of the industry has resulted in the disputes amongst international entities arising out of Sharia-compliant agreements to be more commonplace. It has been a common practice amongst the parties of Islamic finance transactions to choose English law as the governing law. This paper, after examining the limitations in the applicability of Islamic law in English courts, focuses on the critics that the current practice of choosing English law as the governing law faces and discusses the potential of arbitration to provide a more advantageous dispute resolution method for the parties that agree on resolving their issues compliant with Islamic law. Finally, this paper explains the adventure of Eastern arbitration to take Islamic Finance disputes from the hands of English courts by examining the initiatives taken by the arbitral institutions so far, as well as the ideas that came from scholars to create better solutions for the parties of Islamic finance transactions in their disputes.</span>