Methods Of Dispute Settlement Research Articles

Article: The Neglected Public Interest in Investor-State Dispute Settlement: Environmental and Human Rights Considerations

With the rapid expansion of bilateral investment treaties (BITs), investor-state arbitration has paved its way to becoming the most preferred dispute settlement method by investors. However, the investment arbitration system has also attracted ‘backlash’. One reason is the challenge to balance between protection of foreign investors and the recognition of host states’ legitimate public interests. With the current pressures to reform the investor-state dispute settlement (ISDS) system, there is a pressing need to offer a better balance between investor protection and host states’ sovereign right to regulate, as well as the wider public good such regulatory measures might have, especially in the context of environmental protection and human rights. This article argues for a better symmetry between foreign investor’s treaty-based claims and host states’ environmental and human rights (EHR) claims to acknowledge the public interests – social, economic, welfare, etc. In particular, it advocates for: the strengthened presence of independent experts and amicus curiae, a proportionality approach; and the overarching development of counterclaims as a consideration not only of the host state’s capacity to regulate but also the wider repercussions of such regulations on the public as well as the conduct of foreign investors.

Peculiarities of pre-trial settlement of administrative disputes in Ukraine and foreign countries

In the article, the author examines the pre-trial settlement of administrative disputes in Ukraine and foreign countries. Attention is focused on the fact that in connection with the introduction of the state of war in Ukraine, the burden on those courts that have the opportunity to hear cases is increasing because there is a sufficient number of judges, hostilities are not taking place, or the territory on which the court is located is de-occupied. In such conditions, there is a growing need to use alternative methods of dispute settlement, namely mediation and conciliation. The author highlights the issue of applying these methods – the subject composition of a public- law dispute as a civil servant who does not have a sufficient number of powers to use alternative methods of dispute settlement stays as the mandatory participant in such a dispute, he is limited in decision-making. Therefore, the article provides a suggestion to expand the discretionary powers of the subject of authority. The positive aspects of mediation are indicated. It contributes to the increase of trust and the establishment of partnership relations between the subject of authority and a private person. A necessary step is to introduce changes to the current legislation of Ukraine and grant the subject of authority the right to offer individuals or legal entities a mediation procedure in order to find a mutually beneficial solution. The author pays particular focus to the use of mediation in Israel. The use of mediation in the member states of the European Union, in particular Italy and Poland, is also being studied. The positive sides of conciliation in Ukraine and the United Kingdom are also studied, and the problems that arise in practice and ways to solve them are specified. The author comes to the conclusion that in the conditions of the state of war, it is indispensable to use alternative methods of resolving disputes, as this will lead to the relief of the judicial branch of government, the search for a mutually beneficial solution for both parties, the absence of corruption, preserving time and money for both individuals and legal entities, as well as for the subject of authority.

Arbitration as the Dispute Settlement Method to Address Harmful Interference in the Age of Mega-Constellations of Satellites

The increasing demand for radio frequency spectrum usage for the launch of mega-constellations of telecommunication satellites will potentially increase incidents of harmful interference to radiocommunication. International law has yet to regulate a compulsory method of dispute settlement for harmful interference disputes. Currently, most cases of harmful interference are solved through technical and political means. However, those methods cannot address damage claims that may be caused by harmful interference, which may become increasingly common with the growing participation of private entities. Article 56 of the ITU Constitution has regulated several dispute resolution methods related to telecommunications, namely negotiation, diplomatic channels, other methods mutually agreed upon by the parties, and arbitration. This study aims to analyze these methods of dispute settlement and determine the most appropriate method to address harmful interference disputes. As the diplomatic dispute settlement methods do not result in enforceable legally binding decisions, this study argues that arbitration is the most appropriate method to settle disputes concerning harmful interference because it offers more neutrality in its proceedings and the confidentiality of sensitive information. It may also decide on damages as part of the arbitral award. Arbitration awards are final and binding, thus offering legal certainty to the parties to the dispute. States have generally recognized arbitration awards and created mechanisms to enforce arbitral awards. This study also recommends that the ITU implement compulsory arbitration with limitations and create a harm-claim threshold.

Investment Treaty Arbitration Caught in The Public-Private Law Divide

The ongoing reform of investor-state dispute settlement (“ISDS”) underlines the pertinence of an old question that has received various and conflicting answers: Is investment arbitration a public or private method of dispute settlement? A key criticism leveled at investment treaty arbitration is that public interest disputes are decided by a system of private justice. This article critically reviews the dominant interpretations of investment treaty arbitration as public, private, or hybrid. It argues that the subjective nature of each interpretation means that none of them can be definitively adopted. Rather, the real arguments in favor of or against arbitration lie beyond the traditional debate. The article shows that investment arbitration displays important commonalities with international court systems, with its presumed unique features—including party autonomy—appearing a little less unique on closer inspection. Ultimately, a system is what states make it, irrespective of whether its particular features are described as public or private.

The Code of Administrative Justice of Ukraine in the system of regulation of alternative methods of solving public legal disputes and conflicts

The article states that the sphere of resolving public-law disputes and conflicts is insufficiently regulated and indicates that it requires further adoption of relevant legislative acts or amendments to current acts in this area. At the same time, it is noted that the legislative principles for the application of alternative methods of resolving public legal disputes and conflicts are contained in the Code of Administrative Justice of Ukraine. It is noted that the Code of Administrative Justice of Ukraine contains the following legislative provisions regarding the possibility of using alternative methods of resolving public legal disputes and conflicts. The specified Code was adopted on July 6, 2005, but part of the norms related to the above issues and, in particular, mediation in the Code appeared much later. In particular, the Code was supplemented with such norms on the basis of the third clause of Chapter IV "Final and Transitional Provisions" of the Law of Ukraine "On Mediation" dated November 16, 2021. In view of the analysis of the provisions of the Code of Administrative Procedure of Ukraine, this legal act orients the parties to the possibility of resolving the dispute in the following ways: 1) by conciliation; 2) through mediation as an out-of-court method of dispute settlement; 3) by applying to the court to settle the dispute with the participation of a judge. At the same time, the Code regulates only conciliation and going to court to settle the dispute with the participation of a judge. Mediation as an alternative way of resolving public legal disputes and conflicts is taken into account by the Code in different ways, but the detailed regulation of this procedure, as is known, is carried out by a separate Law. The article states that the proceduralization of such a form as settlement of a dispute with the participation of a judge is of a rather limited nature and is connected with the introduction at the level of procedural law of a minimal set of rules without detailed regulation of the specifics of their application. Taking into account the professional consciousness of judges and their constant activity within the limits of the maximum procedural regulation of such activity, the stated approach of the legislator, in our opinion, needs clarification and development at the level of other acts. In particular, within the limits of such acts, it would be possible to approve a scientifically based and practically tested method of dispute settlement with the participation of a judge.

The role of traditional institutions in conflict resolution among Okija people

Similar to the concept of culture, resolving disagreements is also a way of life. Prior to colonial rule and the establishment of a regular court system in Nigeria, Okija had a method of dispute settlement that was deemed simple, inexpensive, and amicable. Therefore, the specific objective of the study was to identify traditional institutions for conflict resolution in the Okija peace processes among Okija people in Ihiala local government area of Anambra state. Purposive sampling method was adopted to select four community leaders or chiefs from each of the four communities that covered the study location, making a total sample size of 16 for the study. The selection of the leaders was based on their expertise in Okija's traditional dispute resolution procedures and institutions. A qualitative technique, the in-depth interview, was used in the study to garner the primary data. The study found that the traditional institutions for conflict resolution included the Ezi (the family), Okpara (elders), Umunna (men who are born into the clan), Umuada (women who were born into a clan), or NdiInyom (married women), Amala (the council of elders), Traditional Religious Approach (OgwugwuAkpu, OgwugwuMiri, Urashi, Akpunama, Osuajana), Secret societies, or the Masquerades. This study recommended the greater inclusion of these traditional institutions in conflict resolution among people instead, as they are closer to people at the grassroots than the formal institutions for conflict resolution in the contemporary period.

Evolution of Alternative Dispute Resolution in India: Stepping to Effective Justice System

Alternative Dispute Mechanism is considered the most important and significant aspect in modern period of dispute settlement. It is an old phenomenon and method to resolve the disputes through amicable settlement. It will help to resolve the dispute without interfering by rigid court procedure and formalities. ADR mechanism prove very useful, vital and more effective in commercial and civil disputes. The complicity of commercial and civil disputes can easily manage through the ADR without interfering by technicalities and complex procedure of law. The nonintervention by advocates and court will make it more effective tool for dispute settlement. It may consider as alternative method of justice delivery system in India. In this research paper the researcher will try to analysis the ADR system is alternative method of dispute settlement and path for the alternative mechanism of existing complex judicial system. The research will be competed with an objective to explore the study between the conventional method vis-a-vis ADR method of dispute settlement and will conclude by providing some effective solutions that ADR is considered as a primary option in settlement of disputes

Discussion on Practical Options for Territorial Dispute Settlement Mechanisms — Taking the Case of Pulau Ligitan and Pulau Sipadan as an Example

In order to better respond to and deal with territorial disputes, and choose a more rational and appropriate dispute settlement mechanism, this article selects the case of sovereignty dispute between Indonesia and Malaysia over Pulau Ligitan and Pulau Sipadan for analysis, which chose two different dispute settlement mechanisms, namely, bilateral negotiation and judicial settlement, respectively, in the early and late stages of the dispute. The article analyzes the reasons for Indonesia’s two different choices at three levels: international system level, domestic level and decision-makers level, and finally draws the conclusion that Indonesia’s choice of territory dispute settlement methods was not only restricted by the structure, but also directly affected by the factors at the unit level to a large extent. It is in Indonesia’s interest to peacefully resolve the dispute over the two islands under structural pressure. And in this case, the 1997 Asian financial crisis and the ensuing crisis of governance ultimately prompted Indonesia to choose the International Court of Justice. The role played by the state and decision-makers in this case was more direct and critical.

Systematic Literature Review: Implementation of Dispute Settlement Methods Between Trade Unions and Companies in Indonesia

Sometimes the working relationship established between employers and workers or trade unions can run well. Sometimes differences in goals or interests owned by the two parties can cause conflicts or disputes that, if the organization or company cannot handle them properly, will harm the sustainability of the business undertaken by the organization. Therefore, it is necessary to have an industrial relations dispute resolution mechanism that can be done in two ways: through litigation (court) and non-litigation (outside the court). This study aims to provide a pattern of research overview with the theme of industrial relations dispute resolution with data obtained from several reputable international/national journals published between 2017 to 2023. The research method used, namely in the Systematic Literature Review (SLR) Method, is useful in identifying, reviewing, evaluating, and interpreting many studies obtained with research topics or themes that attract attention, as well as with certain relevant research questions. The results showed that the dominant platform used in research on the theme of industrial relations dispute resolution is the settlement mechanism and the role of trade unions in resolving labour relations disputes.

Application of Mediation in Resolving Elderly Family Issues in Malaysia: Lessons from Canada and Australia

Malaysia is expected to be an ageing country by 2030 when 15% of her populace will be in the category of the elderly. The elderly will face various issues and challenges, such as finance along with abuse and neglect. Generally, like in other disputes, the legal mechanism is the resort for resolution. However, litigation is less preferred in this type of cases as it does not address the emotional distress suffered by the parties involved. As such, litigation is not a suitable method as it may break the relationship between the parties. Conversely, mediation, a non-adjudicative dispute resolution mechanism, is considered a potential method of dispute settlement since it is effective in addressing the issues in a family conflict involving the elderly. Due to its effectiveness, the application of mediation as a means of resolving disputes has gained global attention. Considering its effectiveness, some countries, such as Australia and Canada, apply mediation in resolving family issues involving the elderly. The use of mediation in family disputes is not new in Malaysia, however, it is yet to be applied in elderly family disputes. The objective of this article is to explore the scope of the application of mediation in elderly family issues. As such, this study adopts the qualitative approach of research where primary and secondary sources of data were gleaned from various statutes as well as existing literature, respectively. In order to underline the potential of mediation in dispute resolution, the experiences of Australia and Canada have been shared in this article. The finding indicates that due to its intrinsic excellence and usefulness, mediation can excel in resolving the disputes related to the elderly. Therefore, the paper recommends embracing mediation as a feasible dispute settlement mechanism involving the elderly in a family setting in Malaysia.

The Effects of Structured Planning on Business Virtual Negotiations after the Pandemic

Covid-19 coronavirus pandemic has brought with it the need for the reinvention of human beings in virtually every area of knowledge. New paradigms and challenges, such as social isolation and urban mobility restrictions, are being overcome with innovations arising from the need to overcome the economic adversity caused by the pandemic, bordering on collapse on a global scale. In this context, developing negotiation skills as a mechanism of social interaction has never been more necessary in the so-called Age of Innovation as a peaceful method of dispute settlement. In this article, we analyze the challenges of distance negotiation through a non-parametric analysis of N=733 Brazilian business negotiations, with a confidence interval of 99 percent. The results indicate statistical significance in the planning and effective structuring of the negotiation. The analysis of primary data and discussion complements the present work. Ultimately, we present best negotiation practices recommendations useful to negotiators, scholars, academics, decision-makers, and other interested parties.

Keterlambatan Proyek yang Disebabkan oleh Owner: Evaluasi Faktor-Faktor Penyebab dan Klaim Kontraktor

Delays in construction projects are generally understood to be the sole responsibility of the contractor. In fact, these delays can also be caused by factors that actually are the responsibility of the owner, resulting in project completion exceeding the contract target date. As a result, the contractors can be affected and suffer losses due to delays that are not actually their responsibility. This study intends to evaluate project delays caused by the owner and the delay claims submitted by the contractor. This research is exploratory and uses a mixed method of quantitative and qualitative approach. Data was collected through interviews and questionnaires with 80 respondents of the construction industry. The study found five main factors causing delays caused by the owner, including: land acquisition problems, changes in design and work instructions, payment problems, and unclear drawings in the contract documents. Of these delays, the majority (93%) were claimed by contractors, with an average claim success rate of 53%, and the compensation generally in the form of extension of project completion time (63%). The most frequently chosen claim dispute settlement method (93%) is non-litigation settlement through negotiation. This research has provided a comprehensive overview of delays due to owners and the contractor claims, and gives valuable lessons for the construction industry stakeholders to cope with delays in the future.

Альтернативные способы разрешения индивидуальных трудовых споров: опыт и перспективы развития

The article considers the experience of the formation of conciliation institutions in the field of labor relations based on the analysis of Soviet labor legislation. It is concluded that the effectiveness of alternative methods of dispute settlement in a particular State depends on political, economic, legal conditions, as well as on historical prerequisites. The article considers individual problems that hinder the effective use of mediation for the settlement of individual labor disputes, as well as the conditions under which mediation is the most preferred method to resolve labor conflict. It justifies the necessity of revising the current concept of resolving individual labor disputes through the consistent expansion of alternative ways of resolving labor-law conflicts, including by improving negotiation procedures in labor law relations, the inclusion of sectoral expertise among the methods of dispute resolution. The experience of foreign States in establishing labor mediation services to resolve individual labor disputes is positively assessed. It is recommended to strengthen the role of social partnership in the development and improvement of alternative ways of resolving labor disputes. The conclusion proposes the conditions under which the most effective use of alternative procedures in labor relations is possible, including adaptation of methods of conflict resolution to the specifics of labor relations, providing them with effective legal mechanisms, variability of the forms used, as well as the formation of a culture of peaceful dispute settlement and negotiation.

Features of legal procedures in the consideration of disputes related to contractual relations

The subject of the study is the peculiarities of legal procedures in the consideration of disputes related to contractual relations. The author of the article, by analyzing and summarizing scientific materials, materials of judicial practice, comes to the conclusion that in recent years, in the consideration of disputes related to contractual relations, the search for alternative ways to resolve emerging conflicts has been actualized. The author notes that legal procedures in the implementation of reconciliation of the parties in pre-trial, judicial and other alternative methods of dispute settlement are contractual in nature, that is, contractual legal procedures are used to settle a dispute (conflict) at any stage of contractual relations, which is not typical for other types of civil relations. Meanwhile, from the standpoint of a functional approach, extrajudicial, judicial and other methods of protecting the rights of participants in contractual relations can act as an effective tool for resolving conflicts arising between the parties. In the work, the author creatively used general scientific and private scientific methods in cognitively significant unity and in a complex combination, including: analysis and synthesis, abstraction, system-structural, comparative legal, etc. The scientific novelty of the research consists in the fact that the article is a comprehensive study that examines the regulatory and security functions provided to the parties in contractual relations aimed at establishing (arising) a contractual legal relationship, changing the content and termination of contractual relations, changing the subject matter of the contract, recognizing and confirming the right, as well as eliminating disputability (conflict) in contractual relations. The key to this maxim is that the parties, as carriers of a subjective right or legal obligation, in the event of a dispute (conflict), have the opportunity to choose the method provided for by law or a reasonable model of behavior for its settlement, as well as the procedure for its implementation.

Turkey–Pharmaceuticals: The First WTO Arbitration for Appellate Review

On 25 July 2022, the World Trade Organization (WTO) issued an arbitration award under Article 25 of the Dispute Settlement Understanding (DSU) on the appeal from the Panel Report in Turkey–Pharmaceuticals. This is the first use of the DSU Article 25 arbitration proceedings for the review of a WTO panel decision. As such, the case is highly significant in that it demonstrates how this alternative dispute settlement method can be successfully utilized to fulfil the function of appellate review after the Appellate Body (AB) became paralysed. Moreover, this innovative use of Article 25 arbitration may suggest a long-term solution in the reform of WTO dispute settlement. With respect to substantive legal issues, this case is also noteworthy, for it dealt with the question of public health and WTO law, a particularly sensitive topic in the post-pandemic era. This essay provides a critical review of the findings of the Panel and the Arbitrators on the substantive issues, while appraising the systemic significance of this first appeal arbitration. WTO Dispute Settlement, DSU Article 25 Arbitration, WTO Reform, Appellate Review, GATT Article XX(b), public health, localization measure

Judicial Cooperation as Belt and Road Initiative (BRI) Transnational Dispute Settlement Order

Abstract Traditional socio-legal works showed that authoritarian regimes benefit from embracing international arbitration, obviating any foreign investor’s distrust of non-independent and non-democratic courts. This article explores judicial cooperation by analysing the methods of dispute settlement adopted between China and the Arab Middle Eastern States involved in the BRI. After reviewing the background of China’s legal involvement in the Middle East, China’s involvement with various transnational dispute resolution institutions in the Middle East is discussed, and special consideration is given to legal disputes in Kuwait, UAE, and Egypt. Finally, this article argues that rule of law legitimacy, social and cultural inertia, and governance cost-effectiveness all influence the resulting transnational dispute settlement scheme.

Application of Mediation Mechanism in International Investment Dispute Settlement

Transnational trade not only brings economic development but also produces many international investment disputes. As a result, many dispute settlement methods have emerged. The international investment dispute settlement Institution has gradually developed into a permanent institution for dispute settlement, with arbitration as the main means. However, the arbitration process has exposed many drawbacks since its development for a long time. Although mediation was relatively mature in other countries, its value was not appreciated until the end of the 20th century. As more and more international voices have pointed out the disadvantages of international investment arbitration, which not only increases economic losses but also takes a long time, the International Center for Settlement of Investment (hereinafter referred to as ICSID) is also making continuous reforms and adopted a new amendment on July 1, 2022, emphasizing the method of mediation mechanism. The current mediation system in international investment has gradually moved from theory to practice, so it is necessary to conduct further research on the development and future construction of mediation mechanisms. Literature research and comparative research are used in this paper to analyze. Since mediation and ADR mechanism have been introduced into the dispute settlement mechanism, the analysis of the mediation system puts forward suggestions on the current development dilemma and future construction of the mediation mechanism.

Alternative Dispute Resolution and Sustainability of Economic Development for the Consumer’s Benefit: An Islamic Moral Economy Perspective

Islamic Moral Economy (IME) rests on the idea of justice, goodness and fairness, and the social interest within the community. It provides a basic framework and moral-oriented principles to ensure the sustainability of economic development. In economics when contracts are formulated and signed, they are subjected to unexpected changes. Some issues may lead to disputes. The concept of Sulh (amicable settlement) can be used as an alternative dispute resolution (ADR) mechanism to solve these disputes. The scholars interpret such as mediation, arbitration, and conciliation. This paper aims to examine the potential of the applicability of mediation as a tool for dispute resolution in encouraging sustainability of economic development from an IME perspective. Based on a desk review of academic, peer-reviewed literature and reports, the particular focus of this study is on how mediation could assist the consumers of Islamic Banking and Finance in getting justice by applying dispute settlement methods between the parties. This paper suggested that the consumer obtains much benefit if the IME adopts ADR or mediation in resolving dispute and simultaneously maintains the sustainability of economic development.

Public–Private Partnership: A Legislative Model from the State of Qatar

Abstract The State of Qatar has recently witnessed a massive legislative movement designed to encourage foreign investment and enhance private sector participation in the economy, especially in trade and investment. This article addresses one of the most important enactments in this regard; Law No. 12 of 2020 on economic Partnership between the Government Sector and the Private Sector (hereinafter referred to as the ppp Law or Law N. 12 of 2020). The law encourages the expansive role of the private sector and provides for several incentives and guarantees. The law also designs rules of partnership that follow principles of transparency and good governance. This article focuses on international standards embodied in the uncitral model legislative provisions on public-private partnership and its legislative guide, especially public interest, stability and sustainability, restricted contractual freedom, contractual balance and risk transfer, legitimate and fair competition, transparency and integrity, equality and equal opportunities, the right to compensation, methods of dispute settlement and legislative integration.

Extension for contract performance under the CISG 1980 and implications for Vietnamese businesses

Being adopted in 1980 and getting effective from January 1, 1988, The United Nations Convention on Contracts for the International Sale of Goods (CISG) has become one of the most widely accepted international trade treaties. Despite its validity in Vietnam since the beginning of 2017, the Convention is still applied in a very limited way by domestic businesses. In fact, there have been a lot of sophisticated legal issues in international trade, especially in cases the parties fail to promptly or properly perform their contractual obligations or even in case of non-performance. This article is aimed to study the provisions of additional time for late performance (Nachfrist) under CISG 1980 in comparison with Vietnamese laws, and current situation of extension for contract performance under CISG 1980. The research collected, summarized, compared and analyzed data from trustworthy sources and conducted the in-depth interviews with the experienced experts in commerce, law, and dispute settlement. The results point out some similarities and differences in establishing the additional time between Vietnamese legal documents and the Convention. Furthermore, it is also showed in this article that disputes related to the Nachfrist clause are quite common and tend to decrease, but only with the participation of mainly European countries and China. In terms of content of dispute cases, the rate of disputes arising from the Seller's breach of contract is much higher than that rate from the Buyer’s. Regarding methods of dispute settlement, China has nearly always chosen arbitration while European countries have given priority to the court. From the analysis, some implications for Vietnamese businesses in the application and interpretation CISG’s provisions of contract extension were represented as solutions to help businesses improve their legal knowledge and limit risks in international commercial activities.