Dispute Resolution Methods Research Articles

TINDAK PIDANA DAN PENYELESAIAN SENGKETA PERBANKAN SYARIAH

Banking is one sector that has an important role in various fields, among others, in community activities, especially in the financial field, as well as economic activities to meet one's personal needs. In conducting banking activities especially sharia banking, does not rule out the occurrence of a dispute or dispute in it. This dispute must ultimately be resolved by both parties namely the bank and the customer because both parties have the same position as the parties concerned. In the case of dispute settlement in sharia banking, there are two (2) dispute resolution methods namely dispute settlement through litigation (court lane) and dispute settlement through non litigation (out-court) path where each method of settlement has weaknesses and their respective advantages. The basis for dispute settlement within the sharia banking itself is regulated in Law No. 21 of 2008 concerning Sharia Banking.
 
 Keywords : syariah banking, syariah banking dispute, sharia banking dispute settlement institution.

Alternatív közszolgáltatás, alternatív vitarendezés

The paper aims to find a connection between the methods of alternative dispute resolution and one of the oldest and largest organized crime groups, the Yakuza, which is considered as one of the four largest transnational organized crime groups by the USA as of July, 2011. The rationale behind my research was on the one hand that numerous types of alternative dispute resolution (ADR) techniques are well-known and applied by Japanese jurisdiction, and the views and circumstances which represent the Yakuza, as a kind of public services institute, which supports the weak and the poor, as opposed to crime organizations in different countries. I assume that in a scientific manner, the Yakuza is a potential subject of an ADR process, or references of the alternative resolution of the dispute in the relevant studies and other source-strings correlating to the Yakuza could also be possible. To uncover the connections, the investigation focused on scientific studies about the applied methods of alternative dispute resolution in Japan, and in general the culture of dispute resolution of Japanese people as compared to the attitudes of citizens from different cultures. Furthermore, I seek the approaches according to which, the Yakuza in the time of need is a supporting institute, and serves society. This result could also point out further connections on the stage of politicaland economic interlocking. I expect to prove that the examined studies will lead to a correspondence between the two fields in a manner from which I could deduce consistent and scholarly application of ADR techniques with the participation of the Yakuza.

New dispute resolution methods: competition and interaction with classical instruments in the age of digitalization and globalization

New dispute resolution methods: competition and interaction with classical instruments in the age of digitalization and globalization

Principles of Judicial Conciliation, Mediation and Arbitration: Comparative Legal Aspects

The paper discusses the principles of judicial conciliation, mediation and arbitration in a comparative perspective. A special attention is paid to guarantees of their implementation. Examples of judicial practice that demonstrate the prevalence of violations of certain principles are considered. On the basis of a systemic analysis of legal provisions and a relevant draft law, regulations of Russian and foreign arbitration institutions, taking into account the views of prerevolutionary, Soviet and modern researchers, the authors formulate conclusions about the declarative nature of principles of judicial reconciliation and significant differences of this procedure from mediation. In judicial reconciliation, the autonomy of the will of the parties to a dispute may be limited by choosing the conciliator’s candidature, the active role of the conciliator. The authors argue in favor of using such a form of reconciliation, in which the conciliator may be the judge who is considering the specific case. The unconditional advantages of mediation as the only one of the considered dispute resolution methods, which is really characterized by confidentiality and co-operation of the parties, are noted. The authors reveal the issues of the adversarial principle and equality of the parties in arbitration, due to abuse of rights by the parties to the dispute. The study of characteristics of formation of individual principles in the Russian pre-revolutionary and Soviet legislation allowed to formulate conclusions about the possible development of provisions on the principles of cooperation and confidentiality, on the prospects for judicial reconciliation.

A comprehensive review of disputes prevention and resolution in construction projects

The construction industry is complex, fragmented, dynamic and involves many parties in an adversarial relationship. This makes disputes almost inevitable in any construction project. This paper aims to provide a comprehensive review of the adopted methodologies in resolving disputes that arise in the construction projects. The paper evaluates and classifies the different methods of disputes resolution. A comparison was conducted between the advantages and disadvantages of each method. The paper distinguishes between the traditional method of disputes resolution; litigation and Alternative Dispute Resolution (ADR) methods such as arbitration, mediation, med/arb, mini-trial and dispute review board. In conclusion there is no best way to solve all kind of disputes in construction projects, however, a general step by step process of how disputes should be addressed is finally presented.

Managing Workplace Conflicts in Business Environment: The Role of Alternative Dispute Resolution (ADR) Ethiopian in Focus

A critical review of a journal article is an evaluation of an article's strengths, weaknesses and validity. It is used to inform readers of an article's value through explanation, interpretation and analysis. Ethiopia has for centuries been using traditional methods of dispute resolution. The institutions of Gadaa among the Oromo, the Shimagelle by the Amhara, and the other ethnic groups reviewer re used. But Alternative Dispute Resolution has not attained any significant position of usage and acceptance in its modern form. Recent incorporation of Alternative Dispute Resolution mechanisms in the legal polity has been greeted with a lukewarm attitude by the government, judiciary and the civil society (Shipi M, 2001). This article critically analyses alternative dispute resolution alternative dispute resolution in Ethiopia. it includes coverage of: various alternative dispute resolution techniques and the roles played by alternative dispute resolution practitioners in workplace conflict; the need for workplace grievance policies and the forms these can take; the suitability of alternative dispute resolution for various types of disputes; three case studies where alternative dispute resolution was utilized in workplace conflict and the experiences of both the human resource consultant and their clients (Barrister E, 2014). In this regard, the aim of the article is to examine all the possible and applicable alternative dispute resolution mechanism and literature synthesis in general. Keywords: alternative Dispute resolution, organizational, work place conflict, concept DOI : 10.7176/RJFA/10-1-01

Mediación de consumo: una perspectiva española y europea

Ministerio de Educacion y Formacion Profesional (2018): beca para el Departamento de Derecho Publico, Facultad de Derecho, Universidad de Extremadura; proyecto de investigacion bajo la direccion del profesor dr. Jesus Conde Fuente

Mediáció családjogi ügyekben. A gyökerekről és a sajátosságokról

Considering the development of both international and European law, the tendency for turning to Alternative Dispute Resolution methods has been noticeable for a long time and one of its types is mediation. The roots of mediation derive from ancient communities. Mediation is a special conflict handling method, its essence lays in the fact that a neutral third party (a mediator) mediates in the dispute of the two parties with the consent of both. Family mediation is the most frequently used form of mediation. Its undeniable significance is reflected in the time factor, the costs, the fulfilment of the concluded agreements and last but not least, the future relationship of the parties.

Trends of Adjudication Cases in Malaysia

The construction industry is a fertile source of dispute. Payment disputes in the Malaysian construction industry are ancient issues that have been causing problems among construction players for decades. The settlement of disputes can be done by using the Alternative Dispute Resolution (ADR) in lieu of other alternatives or as a complement to Litigation. This paper is focused on Adjudication as a preferred dispute resolution method for the Malaysian construction industry. The enforcement of the Construction Industry Payment and Adjudication Act (CIPAA 2012) in 2014 is intended to provide swift dispute resolution and relief to unpaid construction industry claimants for work done, and facilitate cash flow in the construction industry as a whole. The purpose of this research is to establish the trends of adjudication cases that were intervened by the court within the period of April 2014 until February 2018, which is since the implementation of CIPAA 2012 in Malaysia. In order to determine a vast majority of matters that have been referred for adjudication under CIPAA 2012 and parties in dispute constitute the highest number of referrals, sixty-two court cases were identified. This research also reviewed previous case laws to identify the factors contributing to court referrals. Based on the review, most of adjudication cases in the Malaysian construction industry involve the Main contractor and Employer as dispute parties with the intention of challenging adjudication decisions as there has been excess of jurisdiction pursuant to Section 15 (d) applied by appellants together with the application enforcement of adjudication decision under Section 28 by respondents. The findings will be used as a platform to establish the dispute scenario of the Malaysian construction industry under the CIPAA 2012.

Имитация реформ долевого строительства как сдерживающий фактор неизбежной системной транс-формации отрасли

The main goals of the national project “Housing and urban environment” consist in a strategic reformation of equity construction and the creation of a socially integrated housing market. The scale of the problem is determined by the output on the volume of housing construction at the level of 120 million square metres by 2024. The solution of the task is complicated by the outbreak of the equity construction crisis. It manifested itself not only in the growth in the number of deceived equity holders and suspended housing construction projects, but also in the bankruptcy of developers. The urgency of the measures was expressed in the legis-lative consolidation of new building regulations, which tightened the requirements for developers to such an extent that they actually isolated medium and small businesses from participating in housing construction, transferred functions of control over the turnover of assessed contributions to banks, removed compensa-tion mechanisms into a separate institution and absolutised the value of mortgage purchase arrangements. The results were manifested in the growth of prices for residential real estate, a decrease in the liquidity of construction products, an increase in contradictions and disputes requiring judicial resolution. As a result, the unreasonable burden of the judicial system affected the quality of decisions made, demanding an im-mediate transition to the use of non-judicial dispute resolution methods in construction. Thus, the fragmenta-tion and weak elaboration of the measures taken, give the reform an imitative nature, leaving behind the sys-temic measures of industry transformation. The inevitability of their development is confirmed by the growth of sectoral contradictions and imbalances that create insurmountable obstacles in achieving national devel-opment goals.

Условия и предпосылки внедрения внесудебных способов разрешения споров в инвестиционно-строительной сфере

Условия и предпосылки внедрения внесудебных способов разрешения споров в инвестиционно-строительной сфере

La organización deportiva y su administración de justicia en el ámbito laboral: caso ecuatoriano

El presente documento aborda la aplicación de la justicia en el fútbol a partir de la descripción de los niveles de organización deportiva y el reconocimiento que estos hacen a los métodos de solución de controversias: la justicia ordinaria laboral y los tribunales arbitrales del deporte. Con este análisis, se busca determinar la legitimidad que tiene la justicia deportiva a partir de normas de naturaleza privada para una actividad institucionalizada que genera interés público y las relaciones jurí­dicas que aparecen en esta actividad que se traduce en responsabilidad estatal, por lo que genera incertidumbre de las instancias competentes para conocer los conflictos de naturaleza laboral entre el jugador de fútbol (trabajador) y el club (empleador), todo esto al identificar en donde radica el reconocimiento y legitimidad para conocer estas controversias de los Tribunales de Arbitraje Deportivo, en coexistencia con la jurisdicción que ejerce el poder judicial del Estado.

O potrzebie alternatyw dla sądowego rozstrzygania sporów pomiędzy władzami administracyjnymi a podmiotami prywatnymi w świetle Zalecenia Komitetu Rady Ministrów R (2001)9

The aim of the article is to explain the reasons for the introduction of mediation in administrative law. Mediation is presented in the light of the Recommendation of the Committee of the Council of Ministers R (2001)9 of 5 September 2001 on Alternatives to Litigation Between Administrative Authorities and Private Parties. The adoption of this act was justified by the situation of administrative courts in the member states of the Council of Europe. The common problems in the area of justice were the excessive number of court cases, excessive formalisation of court proceedings and a dispute resolution model that would disregard solutions that could satisfy both parties to the administrative dispute. It was also stated that these problems might have a negative impact on citizens’ access to justice and lead to the violation of the rights of the parties to court proceedings, referred to in Article 6 par. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The measures that may constitute an alternative to the judicial resolution of administrative disputes in the Recommendation include: internal control of administrative acts, amicable proceedings/conciliation, mediation, settlement and arbitration. This Recommendation has shaped the Polish solutions in the field of introducing alternative dispute resolution methods to administrative law. However, in the realities of the Polish legal conditions included in the Recommendation, the proposals have become an incentive to introduce only the institution of mediation. First, it became part of the court-administrative proceedings, and then it was introduced to the administrative proceedings. Currently, when after the introduction of mediation to the Code of Administrative Procedure, the use of ADR methods under administrative law has again become the subject of a broader interest in the doctrine, it is worth recalling the reasons why in 2001 the Council of Europe recommended introducing alternatives to national legal orders.

INTERNATIONAL TRADE MEDIATION AS A METHOD OF DISPUTE RESOLUTION IN INTERNATIONAL LAW

In today's conditions, where economies have open doors all over the world and which conditions operate in the global marketplace, a very important and significant place takes the international trade and the discipline that deals with the study of norms that regulate the way of acting in the international trade for the exchange of goods and services is the International Trade Law. As a result of the liberalization of the world market and as a result of the large number of international trade exchanges of goods and services, the progress and development of enterprises in the national economy, along with the development and advancement of the national economies of the states, proportionally are increasing the importance of this legal discipline. With the exchange of goods and services between subjects in a commercial relationship whether it is a national or international trade exchange and without taking into account the purpose which is to be achieved in that particular commercial relationship, whether it is the sale or purchase of services or goods, are intended to increase their capital. But these cases do not always end with the signing of the legal act and in doing so, with the exchange of goods or services which are the object of that legal act. In these cases, the risk for the appearance of any kind of disputes between the parties is really great. It is not accidental the attempt to escape international trade disputes, which is of common interest to the participants in such trade relations, so that there is as few as possible controversies and disputes between them. But in cases where the interests of buyers and sellers are contradictory, it is pointless to have no disputes at all, so since a dispute cannot be avoided in any way, the same should be resolved. Since judicial procedures in national legislation have a bad background regarding to the inefficiency of case solutions and their unnecessary extensions, theorists and practitioners in recent years have developed several alternative methods for more peaceful and faster solutions to disputes in general and international trade disputes in particular such as arbitration and mediation as two methods that are most important and most often used in practice. The object of this scientific paper firstly will be the elaboration of international trade disputes and then the resolution of disputes that arise in that field by alternative methods of dispute resolution with particular emphasis on the mediation. The implementation of mediation in the resolution of international trade disputes is of special importance for international trade law, it is voluntary and as such during dispute resolution, time is the first aspect and then comes money as the second aspect that are also saved during resolution of disputes through mediation, because mediation provides solution of disputes with small amount of expenses or sometimes it can be said that that amount of expenses look symbolic compared to court expenses.

A AUTOCOMPOSIÇÃO EM MATÉRIA TRIBUTÁRIA

O presente artigo versa sobre a possibilidade de extinção dos créditos tributários mediante concessões mutuas, ou seja, da aplicabilidade da resolução de conflitos em matéria tributária através da autocomposição. O problema da pesquisa reside na seguinte questão: os métodos alternativos de resolução de conflitos podem ser aplicados em matéria tributária sem que isso comprometa ou ponha em risco a indisponibilidade e a supremacia do interesse público? Para dar conta de responder a essa pergunta, foi preciso buscar as raízes do Sistema Tributário Brasileiro, procurando compreender o tributo a partir dos seus aspectos principiológicos. O propósito aqui foi o de tentar relativizar a tese da indisponibilidade, ainda muito arraigada ao Direito Administrativo, procurando demonstrar um novo conceito de interesse público, à luz da economicidade e da eficiência. Assim sendo, o objetivo geral do trabalho reside em avaliar os mecanismos extrajudiciais de solução de conflitos e seus benefícios a fim de propor a regulamentação e normatização de tais mecanismos no Sistema Tributário brasileiro. A pesquisa tem como justificativa a ineficiência dos métodos tradicionais de cobrança dos créditos tributários, dentre os quais a Execução Fiscal, que oneram demasiadamente os cofres públicos, além de ser moroso e pouco eficaz no que concerne à constrição do devedor que não possui patrimônio para saldar a dívida. A falta de autonomia da Fazenda Pública em extinguir o crédito tributário, em condições adversas como essa, expõe a precaridade do sistema de cobrança. A relevância da pesquisa reside, portanto, justamente em tentar propor um “novo” modelo arrecadatório, incorporando a hipótese de que dispor do crédito público em determinadas condições para tentar solucionar o conflito também é uma forma de atender ao interesse público.

CASE STUDIES: DISPUTE RESOLUTIONS SELECTION IN CONSTRUCTION

Disputes simply cannot be prevented all the time in the construction industry. As such, common dispute resolution systems such as negotiation, mediation, arbitration and litigation are widely used. Compared to litigation, negotiation and mediation have high popularity owing to their low cost and faster duration to dispensation. However, proper selection of dispute resolution techniques becomes very critical in real business practice. In this article, a numerical method using pairwise comparisons and the analytic hierarchy process are used to discover the most appropriate method evaluated against specific selection factors. Eight major selection factors are used, and an importance scale is assigned to weigh each factor, followed by a pairwise comparison. The rationale for selection of factors is explained. Final scores of the effectiveness of each dispute resolution technique are calculated for six cases that are meaningful in the construction industry, thereby providing a practical guideline and system to disputants for selecting a suitable dispute resolution method for their specific case.

Possibilities for the Application of Alternative Dispute Resolution Methods in the Administrative Procedure

The public administration, in particular to the administrative procedure follows a firm objective: to create of the customer friendly approach. Also, there is more and more emphasis recently on improving the efficiency and speed of the procedure. These are the two most important keywords of the decision planning and documentation. The aim of the research in this scientific paper is to detect and analyse the decision-making methods, concurrently being ready to incorporate them into the national administrative procedure systems. These methods are to provide lawful and effectively applicable alternative dispute settlement methods ready to use in Hungarian legal system and also to assist - apart form the aim to reach the basic aims of the administrative procedure - to create a fundament of the decisions made by the authority, having regard to circumstances in real life cases, viewpoint of customers and other parties, and the balance of the public interest. The scope of the paper also covers the theoretical and practical aspects of general mediation and mediation in administrative procedure, in view with the appearance of the topic within the renewing and current administrative procedural law regime. While examining the mediation in administrative procedure in a novel point of view, this work also analyses the role of this special type of mediation in terms of efficiency and charactesistics of the current and future legal solutions in administartive cases often involving parties with adverse interests. Conclusions and proposions in the paper may provide contribution to the spreading and correct treatment of alternative decision making methods in the administrative procedure. The publication of this scientific paper supported by the the Ministry of Justice (Hungary) in the program of increasing of the quality of Hungarian legal studies.

Strategic Selection: Philippine Arbitration in the South China Sea Dispute

ABSTRACT East Asian states infrequently seek peaceful dispute resolution through binding methods of international law. What is puzzling is why states seek one particular dispute resolution method or another, and in the specific case of the Philippines, why the government chose to pursue arbitration against China regarding the maritime boundaries of the disputed Spratly Islands, knowing that China would not agree to participate. In this article, we theorize that the Philippine government chose to pursue arbitration against China for three strategic reasons: 1) to counterbalance China’s military actions in the South China Sea, 2) because of the strong benefits to the state resulting from using arbitration, and 3) the probability of winning the case using arbitration was perceived by the Philippines as strong. To test our hypotheses, we use interviews and process tracing, through which we find evidence for our suppositions, primarily the last hypothesis.

O kilku problemach działalności arbitrażu w Polsce

Lawyers involved in arbitration have doubts about the accuracy of the direction in which the current practice of arbitration is proceeding. One of the main practical issues of arbitration was the issue of conflicts of interest, arbitration costs, the ethos of arbitration. In Poland, arbitration proceedings took too long. The author partly criticizes the provisions of the Act of 10 September 2015 on the amendment of certain acts in connection with the support of amicable dispute resolution methods, which among others concerns the shortening of the post-arbitration proceedings. The legislator adopted defective criteria for determining the venue of court of appeal in cases related to the complaint to set aside the arbitration award.

Los métodos alternativos de solución de controversias y sus facilitadores en el sistema penal acusatorio mexicano: hacia una justicia restaurativa, reparación del daño integral y reinserción social

En este tema se analizan diversas perspectivas sobre los Métodos Alternativos de Solución de Controversias en materia penal en México y sus facilitadores en relación con una justicia restaurativa, reparación del daño integral y reinserción social ante posibles soluciones que se pueden generar ante la comisión o posible comisión de un delito, donde la resolución de controversias alternativas puede ser vista como un proceso creativo, generativo y transformador con la capacidad de desarrollar mejores soluciones y delimitada por derechos fundamentales.