Dispute Settlement Model Research Articles

Dispute Settlement Model of Land Acquisition for Public Interest

<p><em>This study aims to analyze</em><em> </em><em>obstacles in resolving conflicts over land acquisition for public interest in Pohuwato Regency</em><em>, as well asformulate</em><em>the ideal model for resolving conflicts over land acquisition for the public interest in Pohuwato Regency</em><em>. This type of research uses empirical research, by using a statutory approach, a conceptual approach, and a case approach. Sources of data used are primary data and secondary data. The data that has been completed is analyzed using qualitative descriptive. Based on the research results that have been described, there are several findings in this study, namely (1)</em><em>There are </em><em>obstacles in resolving conflicts over land acquisition for public interest in Pohuwato Regency. The first obstacle is related to legal factors where in terms of legal substance, there is a regulation on the use of consignments as a safe</em><em>-</em><em>keeping of compensation</em><em> </em><em>private law provisions which shift to public law provisions. And the second obstacle is the determination of compensation, which should be based on an agreement with the land owners, turned out to be unilaterally determined by the Land Procurement Committee. estimate the amount of compensation for the holders of land rights.</em><em>(2) </em><em>T</em><em>he ideal model for resolving conflicts over land acquisition for the public interest in Pohuwato Regency, namely the non-adjudication settlement model, namely through deliberation where all parties involved carry out</em><em>activities that involve listening to each other, giving and receiving mutual opinions, as well as a desire to reach an agreement on the form and amount of compensation and other issues related to land acquisition activities on a voluntary basis. As well as a settlement model by adjudication or through a court route, where the Court has the authority to decide the amount and form of loss given to the holder of land rights whose rights are affected by land acquisition for development in the public interest.</em></p>

Compulsory financial ombudsman under the regulator’s umbrella: Testing a new model of dispute settlement

In post-Soviet countries, the courts are not always effective in resolving consumer disputes. I compare the models of organizing the work of financial ombudsmen in Russia, Kazakhstan, Azerbaijan and Armenia, as well as plans for its implementation in Kyrgyzstan and Belarus. Models of compulsory mediation in a number of European jurisdictions are also analyzed. In some countries there is a tendency towards an increase in the influence of the regulator on the work of financial ombudsmen. The reform of the Russian financial ombudsman is the first attempt at introducing a new compulsory ombudsman model for financial markets. It will be a mandatory stage initiation of a lawsuit in a civil court. The new Russian model is unique, differing both from the models established in the countries of the European Union (centralized, decentralized, professional association), as well as models implemented in other post-Soviet countries. The Russian financial ombudsman model is essentially a combination of Italian compulsory mediation on the basis of coercion before the dispute is considered by the court, and the English financial ombudsman on the basis of a vertical system headed by a sole chairman who is de facto appointed by the financial services regulator, while membership in this system of financial institutions that provide regulated services is generally mandatory. Whether the compulsory financial ombudsman under the Central Bank ‘umbrella’ will manifest itself positively or negatively will determine the possibility of extending this scheme to other categories of consumer disputes in the financial markets and such as housing construction and repair, utilities, and telecommunications with many small and medium consumer claims. Furthermore, since a number of post-Soviet countries continue to rely on the Russian experience, in such countries there may be an expansion of mandatory ombudsmen under the umbrella of regulators as well.

Legal Reformation of Tax Court in Indonesia: Reforming Legal Culture, Institutional and Legislative Aspects

This research is motivated by the many weaknesses that exist in the Ppajak court in Indonesia. Therefore, this research needs to be carried out with the aim that the tax court in the future will be better, more certain in law, and just. The problem is the reason for reforming the tax court in Indonesia and the way to reform the law on the tax court in Indonesia. The research method used is a statutory, historical, and comparative approach. The result of his research is that the tax court in Indonesia must be reformed because it contains many weaknesses. Furthermore, the findings show that tax court reform must be carried out from the aspects of legislation, institutional and legal culture. Based on the statutory aspect, synchronization of laws must be carried out. Based on the institutional aspect, institutional improvement must be carried out. Based on the aspect of legal culture, this must be done by increasing the morale of the parties. The novelty of this research is that the tax dispute settlement model is found after the tax court becomes a special court within the state administrative court. In conclusion, the tax court in Indonesia still contains many weaknesses, so it must be reformed immediately.

Le mécanisme de règlement des différends de la ZLECAf: un choix adéquat pour l’intégration économique en Afrique?

In order to ensure the peaceful resolution of disputes arising from the implementation of its norms, the African Continental Free Trade Area (AfCFTA) has adopted a dispute settlement mechanism that is almost identical to that of the World Trade Organization (WTO), although the two organizations have distinctly different objectives. While the ultimate objective of the AfCFTA is the progressive achievement of economic integration in Africa, the WTO aims to remove as many barriers to international trade relations as possible. This study attempts to demonstrate that the WTO model of dispute settlement adopted by the AfCFTA would not be appropriate to propel African economic integration, especially since not only is it characterized by a great deal of flexibility that allows member states to seek politically negotiated solutions, but above all, it does not take into account, either directly or indirectly, the individual, who is supposed to be the ultimate beneficiary of any process of economic integration of the African continent. Consequently, the present contribution advocates, on the one hand, the attribution of the competence to settle disputes related to AfCFTA’s Law to the future African Court of Justice and Human and Peoples’ Rights (ACJHPR) and, on the other hand, the incorporation of the preliminary referral into the AfCFTA’s Law that could be exercised by the national judge.

Regional Integration Through Dispute Settlement: The European Union Experience

Dispute settlement mechanisms have considerably advanced the European integration process. This paper aims to scrutinise the main legislative provisions and structure of the dispute settlement mechanisms in the European Union. It discusses the two different types of dispute settlement judicial and alternative as well as some mechanisms that have been designed to prevent disputes from arising. It is submitted that the current EU model of dispute settlement does not offer ideal solutions but could serve as a learning process for other integration processes such as the Andean Community and the recently created South American Community of Nations.

Designing Investment Dispute Settlement à la Carte: Insights from Comparative Institutional Design Analysis

Abstract The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as “dispute settlement à la carte”, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.

Development of Non-Litigation Civil Dispute Settlement Model Based on Madurese Local Wisdom to Reduce Cases Accumulation in Court

Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award. This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.

Designing Investment Dispute Settlement À La Carte: Insights from Comparative Institutional Design Analysis

The multilateral expression of the desire to reform investor-state dispute settlement (ISDS) at the United Nations Commission on International Trade Law (UNCITRAL) obscures the diverging preferences states have in respect of which future dispute settlement model to adopt. In order to garner broad acceptability, this article proposes that the reformed system could be designed as ‘dispute settlement a la carte’, with a Multilateral Investment Court coexisting with other forms of dispute resolution under the umbrella of one multilateral institution. With a view to showing that such a system is feasible, this article draws on comparative institutional design analysis, that is, a comparative assessment of dispute settlement design features across different international dispute settlement systems. This approach helps to explore what institutional design features are a useful source of inspiration for a future investment dispute settlement system that preserves flexibility for states in the choice of their preferred means of adjudication, while safeguarding legal certainty and promoting coherence in investment dispute settlement.

Experience mining based on case-based reasoning for dispute settlement of international construction projects

Abstract Considering the experience-orientation of the construction industry, the valuable experience of similar historical cases is important reference to resolve new problems, while research concerning this issue in dispute settlement is still relatively scarce. The objectives of this study are to (1) propose a pragmatic method for generating dispute settlement for international construction projects based on Case-Based Reasoning (CBR); and (2) validate the CBR model by a specific dispute case. To achieve the research objectives, successful historical cases are collected, and attributes that influence dispute-related problems are derived. A two-step refinement process is then conducted to extract similar cases. Finally, a dispute case in Ethiopia is used to demonstrate the application of developed model. This innovative dispute settlement model enriches the theoretical framework in the field of experience mining for decision maker, and the selected experiences provide an effective reference to resolve new dispute problems and reduce the transaction costs of dispute settlement.

PERATURAN MAHKAMAH AGUNG NOMOR 2 TAHUN 2015 TENTANG TATA CARA PENYELESAIAN GUGATAN SEDERHANA SEBAGAI INSTRUMEN PERWUJUDAN ASAS PERADILAN SEDERHANA, CEPAT DAN BIAYA RINGAN

There is a need to conduct business transactions rapidly and in a quick perfunctory manner. At the same time arose also the need to develop and implement a quick, simple and cost efficient business dispute settlement procedure. In response to this need, the Indonesian Supreme Court issued regulation no. 2 of 2015 re. procedure for filing simple civil claims. The legal issue to be discussed here, using a juridical normative or dogmatic approach, is whether this regulation succeed in fulfilling its promise to provide for a quick, simple and cost efficient civil claim examination procedure? The answer to this question is sought, in addition to the method mentioned above, by comparing the procedure provided by the Supreme Court regulation with the existing model of civil claim court examination procedure. By virtue of this comparison the strength and weakness of the Supreme Court dispute settlement model can be analyzed.

PERATURAN MAHKAMAH AGUNG NOMOR 2 TAHUN 2015 TENTANG TATA CARA PENYELESAIAN GUGATAN SEDERHANA SEBAGAI INSTRUMEN PERWUJUDAN ASAS PERADILAN SEDERHANA, CEPAT DAN BIAYA RINGAN

There is a need to conduct business transactions rapidly and in a quick perfunctory manner. At the same time arose also the need to develop and implement a quick, simple and cost efficient business dispute settlement procedure. In response to this need, the Indonesian Supreme Court issued regulation no. 2 of 2015 re. procedure for filing simple civil claims. The legal issue to be discussed here, using a juridical normative or dogmatic approach, is whether this regulation succeed in fulfilling its promise to provide for a quick, simple and cost efficient civil claim examination procedure? The answer to this question is sought, in addition to the method mentioned above, by comparing the procedure provided by the Supreme Court regulation with the existing model of civil claim court examination procedure. By virtue of this comparison the strength and weakness of the Supreme Court dispute settlement model can be analyzed.

Preventing Authorization Deviation of the Minister of Law and Human Rights to Political Parties in Indonesia through a one Roof Political Judging System

Law Number 31 of 2002 regarding Political Parties provides authority to the Minister of Law and Human Rights to register changes in the leadership of political parties was previously intended as a state administrator in the field of law and politics. The problem arises when the authority given in 2002 slowly shifted to become a government tool to obtain the support of political parties which is very dangerous for democracy and parties’ independency. Settlement of political parties’ leadership conflict is an integral part of the registration of political parties’ leadership therefore an ideal dispute settlement model is needed. This paper is the result of a research on the Court judgments in the dispute of political parties’ leadership. Ultimately this paper offers a One Roof Political Judgment Concept where one justice agency is empowered with an overall authority starting from the authority to examine the properness of the political party leadership at the central level and the Official decision regarding changes in the political party’s leadership at the central level by Bawaslu. During all this time the General Election Supervisory Agency (Bawaslu) itself has acted as quasi justice given the authority to adjudicate all issues of the general election involving political parties. Bawaslu itself consist of professionals in the field of general election which are not affiliated to the political parties and controlled by the Election Advisory Board (DKPP). Through this model Political parties, KPU and Bawaslu shall become a sub-sub system of the political justice system in Indonesia.

Brazil’s New Model of Dispute Settlement for Investment: Return to the Past or Alternative for the Future?

Abstract This article assesses the contribution of Brazil’s new bilateral treaties on investment, labelled Cooperation and Investment Facilitation Agreements (CIFAs), to the international legal framework for transnational investment. With its CIFAs, nine of which were concluded since 2015, Brazil offers an innovative model of International Investment Agreement (IIA) which does not contain investor-state dispute settlement (ISDS). Instead, CIFAs establish a system that combines dispute prevention mechanisms, creating institutions to ensure continued communication and foster cooperation, and state-to-state arbitration (inspired by dispute settlement provisions common in trade agreements and codified in the World Trade Organization’s Dispute Settlement Understanding). Like recent initiatives put forward by India and the European Union, CIFAs aim not only to regulate bilateral relations but also to positively influence the current debates relating to the reform of the international investment regime. Whether they will become an alternative to the current ISDS-dominated framework will be determined by practice.

Dispute Settlement for Labour Provisions in EU Free Trade Agreements: Rethinking Current Approaches

While labour provisions have been inserted in a number of EU free trade agreements (FTAs), extant clauses are widely perceived as ineffective. This article argues that there is a need to rethink the dispute settlement mechanisms related to labour provisions if their effectiveness is to be increased. It proceeds in three steps. First, we look at the current state of the art of labour provisions in EU FTAs in terms of legal design and practice and argue that the current arrangements are ill-equipped to foster compliance with labour standards. Second, we explore avenues to enhance the design of FTA labour provisions by reconsidering basic elements of the dispute settlement structure. Examining US FTA labour provisions, we highlight the importance of a formal complaint mechanism, on the one hand, and the availability of economic sanctions, on the other. Based on a review of existing practice, we contend, however, that these elements alone are not sufficient to effectively enforce FTA labour provisions. We argue that for FTA labour provisions to be effective, the current state-to-state model of dispute settlement needs to be complemented by a third-party-state dimension and that, additionally, there are good reasons to consider a third party–third party dispute settlement component. We ground these reflections in experiences with already existing instruments in other areas, namely investor-state dispute settlement and voluntary sustainability standards. Thirdly, we discuss options to better connect the dispute settlement mechanisms of FTA labour provisions to other international instruments for labour standards protection with a view to creating synergies and avoiding fragmentation between the different regimes. The focus here is on the International Labour Organization’s supervisory mechanism and the framework of the OECD Guidelines for Multinational Enterprises.

The Dispute Settlement Model of Regional Head Election Perspective Theory of Legal System in Indonesia

The effectiveness of law enforcement depends on three law aspects; those are the structure of law, the substance of the law, and legal culture. Law structure is about the law enforcers, law substance is about the legislative means, and law culture is about a living law adopted by society. This study defines the background of simultaneous regional head elections in Indonesia, the problems of the simultaneous regional head elections in Indonesia, and the implementation of legal system theory to solve the simultaneous regional head election problems in Indonesia. The research method used is normative juridical with the specification of descriptive analysis research. The result of the research is needed permanent law structures that cover (Election Police, Election Prosecutor, Election lawyer, and Election Jury), the law substance through the issuing of general regulations (lex general) which can integrate the Laws of Legislative, Presidential, and Regional Head Elections (lex specialist) and the legal culture of society as human behavior (including the legal culture of law enforcement officers) on the electoral law and law system that are in force at the moment.

Modeling and Analysis of Electronic Commerce Protocols Using Colored Petri Nets

Electronic commerce protocols are the basis of security in electronic commerce. Therefore, it is essential to ensure these protocols correctly. With the ideas of ZQ logic and the security protocols analysis method using Colored Petri Nets, a new method synthesizing ZQ logic and Colored Petri Nets is presented to analyze electronic commerce protocols. The new method is suitable for analyzing both accountability and fairness. However, it needs not to establish a dispute settlement model. Moreover, the ISI protocol is chosen to illustrate how an electronic commerce protocol is analyzed using the new method. An insecure state of the ISI protocol is found. Thus, the ISI protocol does not achieve accountability and fairness. The result is the same as the one in [10] where ZQ logic is used. These are stunning confirmations of the validity of the new method for analyzing electronic commerce protocols.

Political & Quasi-Adjudicative Dispute Settlement Models in European Union Free Trade Agreements - Is the Quasi-Adjudicative Model a Trend or is it Just Another Model?

In this paper, interpretation and application dispute settlement provisions of European Union (EU) Free Trade Agreements (FTAs) signed between 1963 and 2006 are analysed. This will be through the two models of Dispute Settlement in International Law: the political and adjudicative. Political elements of dispute settlement mechanisms in Public International Law and General Agreement of Tariffs and Trade (GATT) served to establish those of the EU FTAs. Adjudicative and quasi-adjudicative elements of dispute settlement mechanisms of Public International Law and World Trade Organization (WTO) Law were used as parameters to set up those of the EU FTAs. These parameters also helped to define a new and unique hybrid model. The features of this model were found in Agreements with trade issues other than FTAs. It is possible, however, for future FTAs to incorporate them. The hybrid model is based on an adjudicative framework and includes both political and adjudicative elements. In conclusion, it was found that even though WTO Members incorporated adjudicative elements in the Dispute Settlement Understanding (DSU), the EU did not incorporate them bilaterally for a further five years. Furthermore, since the creation of the DSU in 1995, the EU has established more FTAs based on a political model than on a quasi-adjudicative. Consequently, the quasi-adjudicative dispute settlement model has not represented a clear trend in EU FTAs.

Alternative dispute resolution, Africa, and the structure of law and power: the Horn in context

Data collected by comparative legal scholars show that legal transplants usually take place from more complex societies to less complex ones. By contrast, the alternative dispute resolution (ADR) movement that has recently developed in modern societies has been described as a return to a simple model of dispute settlement used in the past and in modern non-Western societies. Does this mean that we are experiencing a new kind of legal transplant, a transplant from less complex to more complex societies? In this article I will argue that this is not the case. Far from being a transplant from the southern to the northern hemisphere, ADR seems indeed to be a modern legal institution born from the retreat of the state from some of its traditional functions. A different question thus needs exploring: is ADR, at least, an institution that can easily be transplanted to Africa where the original transplant of the Western state has failed? In other words, is conciliatory ADR more similar to the African way of dealing with conflicts and consequently to be recommended as the dispute resolution mechanism for modern African states? The question appears to be appropriate in situations such as the one in the Horn of Africa—particularly Eritrea—where the new political leadership is confronting the difficult task of building a new legal system.

Collective Bargaining and Essential Services: the Australian Case

The introduction of collective bargaining and the right to strike in the federal jurisdiction in 1993 was accompanied by special provisions for essential services. These enable the Australian Industrial Relations Commission to remove the right to strike and substitute compulsory arbitration in the event of 'threatened danger' to the community. The essential services policy approximates the traditional Australian dispute settlement model. The model entails some choice for principal parties between bargaining and arbitration. Choice between processes is implicit in the essential services policy. This has led to controversy concerning union motives when seeking termination of bargaining. This study concludes that employer motives may also be questioned and that the issue of motives remains problematic. An analysis of disputes invoking the new provisions reveals that a predicted growth in interest arbitration has not occurred. The relevant disputes cover health, fire-fighting and electricity distribution services. Prefer ences between bargaining and arbitration vary for both unions and employers. They may also change during the course of a dispute. The mediating variable of commission discretion is crucial to process outcomes. Claims of unfair advantage to unions arising from the policy are rejected. Claims that the provision encourages action designed to threaten to endanger the public are upheld, where either party prefers arbitration and is prepared to take action to achieve that. A critical element of the policy's operation is evidence presented to the commission concerning the impact of industrial action. In some cases the commission has acted with alacrity to withdraw the right to strike. It has also tolerated lengthy periods of industrial action. This reflects, in good measure, the wide variations in the impact of industrial action. Union evidence, whether supporting or opposing termination of bargaining and the right to strike, has, on balance, fared better than employer evidence. Some weaknesses in the policy are identified. These include its reactive nature. Any pro-active measures directed to maintenance of essential services are solely the product of private or self-regulation. Exploration of international models, including diverse Canadian solutions, is advocated. These are the product of greater debate concerning the regulation of industrial relations in essential services than has occurred in Australia.

The Precedential Effect of WTO Panel and Appellate Body Reports

The Dispute Settlement Understanding in the WTO Agreement represents a significant shift from a diplomatic model of dispute settlement to a rule-based model. The substitution of legal legitimacy for political legitimacy in the dispute settlement process makes the success or failure of the system largely dependent on the credibility of the jurisprudence produced by the panels and Appellate Body. One way which international tribunals have established credible jurisprudence, is by following their previous decisions unless there is good reason for deciding otherwise. This paper examines the precedential effect of previously adopted panel and Appellate Body reports, and policy reasons for and against a stronger form of precedent in WTO jurisprudence.