Parties In Dispute Research Articles

Justice in the Digital State: Assessing the Next Revolution in Administrative Justice by JoeTomlinson (Bristol: Policy Press, 2019, 97 pp., £12.99 (pbk))

Justice in the Digital State: Assessing the Next Revolution in Administrative Justice by JoeTomlinson (Bristol: Policy Press, 2019, 97 pp., £12.99 (pbk))

Penerapan Asas Proporsionalitas Bagi Hakim dalam Mengadili Sengketa Kontrak

In fact the appropriateness of the contract substance is the dismissibility of the parties ' wishes in a contractual relationship, which is based on agreement, proficiency, ability and compliance with statutory regulations. However, the appropriation and exegesis of the existence of a new problem, there is a double understanding, ambiguity to lead to the misinterpretation of the wishes of the contractual parties, which can cause The Parties ' rights and obligations. For this it is important to do a search of the red thread of a contract, which is expected to find the identity of a contract when disputed by the parties. In this case the principle of proportionality can be used as a parameter for judges in each level of justice in finding a win solution in the matter of the commercial contract he handled. This is because the proportionality measure of the exchange of rights and contractual obligations is always based on equitability, freedom, distribution-proportionate that is not independent of the principle of accuracy, feasibility and Fit. All of which can be used as a red thread of the true meaning of a contractual relationship, which in fact does not have to be centered on the proportion of the distribution of rights and obligations mathematically, but more than that through The basic search of proportionality by the magistrate of the judge, then any contractual matters handled will be resolved worthily and appropriately (fair and reasonableness) in order to achieve a win-win solution among the parties in dispute.

KASUS LEDAKAN POPULASI KUMBANG KELAPA PADA PERKEBUNAN RAKYAT DI DESA SUNGAI NYIUR, KECAMATAN TANAH MERAH, KABUPATEN INDRAGIRI HILIR, PROVINSI RIAU

ABSTRAK
 
 Indragiri Hilir is a district in Riau Province where around 70% of the population depends on coconut plantations. In 2018, a large population explosion of coconut beetles, Oryctes rhinoceros was reported in several regions in the Province. The population explosion that occurred in Sungai Nyiur Village, Tanah Merah Subdistrict, has caused conflicts between the community who own coconut plantations and oil palm plantation companies in the area related to the source of pest outbreaks. The regional government has formed an independent team to conduct scientific studies to examine this problem. The independent team in charge consisted of 12 personnel involving universities (UIR) and Riau BPTP agricultural institutions. The steps taken include surveys, interviews, field investigation, and trapping. The survey was conducted to determine the epicenter of the attack by evaluating the intensity of the damage visually and with the drone aid. Excavation and inspection of breeding sites were carried out to evaluate the presence and presence of beetles and larvae. Pheromone trap installation is intended to analyze the distribution of coconut beetles. Interviews were carried out both for coconut farmers and staff of oil palm plantation companies related to the chronology of beetle pest explosion and activities carried out on oil palm plantation companies. The findings obtained from the study conducted were presented to both parties in dispute and also the Regional Government of Indragiri Hilir as described in this paper.

TINJAUAN HUKUM ATAS KEDUDUKAN KUASA HUKUM PADA PENGADILAN PAJAK

ABSTRACTTax Court is a part of the Administrative Court under the judicial power of the Supreme Court of Indonesia that exercises judicial power for tax payers or tax beares seeking justice for tax disputes. The respective parties in disputes can be represented by one or more legal proxies by special power of attorney. To become a legal proxy, a person must fulfill the requirements as stipulated by Minister of Finance and prossess a license from the Chairman of Tax Court. Furthermore, if the legal proxy is an advocate, he/she must fulfill the requirements as stated in Law Number 14 Year 2002 Concerning Tax Court.

JUDGMENT WITH CONSENT: ANALYSIS OF SULH INNOVATION

Disputes are a phase in human life. The dispute is a clash or disagreement of opinion, value, interest or emotion. Civilized communities require guidelines in dealing with any dispute to ensure that life carries on within its range of harmony. Conflicts and disputes are sometimes complex issues that require a settlement mechanism that reflects the taxonomy of the dispute itself, thereby justifying the establishment of a set of legislation and procedures that conform to certain forms and types of disputes. When solving a dispute, Islam promotes a method based on the principle of ‘al-Sulh’ which simply means peace. Islam truly encourages the practice of such as it highlights efforts of peace-making through acceptance and with the consent of both parties in dispute. Prophet Muhammad very much encouraged his followers to seek peace and avoiding from having disputes with one another. This research uses the qualitative method and the partially-structured interview approach, document analysis, literary research and scientific journals. This research will highlight such and its related provisions and is hoped to provide suggestions to disputing parties and authorities so that they can resolve their disputes faster at a cheaper price and proved to satisfy everyone who is involved by having judgment with consent. The increasing number of registered cases in the Syariah Court indicates the necessity of new method in resolving the dispute by the integration of such concept and Online Dispute Resolution (ODR) to resolve the issue faster and benefits to all the parties.

Singapore Case Note: Enforceability of Settlement Agreements

Since the signing of the Singapore Convention on Mediation in August this year, there has been an increased interest on the enforceability of settlement agreements, particularly those arising from mediation. The case of Law Chau Loon v Alphire Group Pte Ltd [2019] SGHC 275 from the Singapore High Court provides us with some general legal principles to consider when a settlement agreement is drafted. Although mediation did not take place between the parties in dispute, the principles stated by the High Court here remain relevant to the drafting of binding mediated settlement agreements (MSAs). This case is essential reading for mediators and lawyers involved in mediations in which Singapore law may be applicable in relation to enforcement.

EMBRACE THE ALTERNATIVE DISPUTE RESOLUTION IN ISLAMIC FINANCE

Alternative dispute resolution (ADR) is always seen as substitute way for the disputants and the court to look for dispute resolvers. ADR too has always been keen to solve any civil matters in a harmonious way. Due to its process which has many merits. First is of being cost effective. Then, the ability to resolve a dispute using a document only procedure and face to face discussion between the parties involved has been found to be both convenient and applicable. Moreover, with the increase cases involving Islamic finance disputes in Malaysia and the world in recent years, parties in dispute have become increasingly aware that disputes may be resolved quickly and without the quality of the decision impaired when applying the ADR mechanism. This paper discusses issues related the evolution of ADR and Islamic finance in Malaysia. In addition to that, researchers will also be conveyed to discover Islamic ADR as one vital role to resolve the dispute. Therefore, new recommendation should be imposed to solve legal conflicts related to Islamic finance in Malaysia.

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

Potential Appeal Mechanism by Consent: Arbitration

Arbitration is a process of resolving disputes out of the court. It goes through many other synonyms such as mediation, conciliation, adjudication etc. One thing common in all is that we appoint an arbitrator who looks into all the matters in dispute and lays his decision in accordance to the legal statutes related to arbitration formed by the legislature. However the party in disputes gives an early consent to go for the arbitration rather than an appeal for many reasons. Howsoever there are people who consider that proper justice are not granted to them until and unless they go for appeal, but there are numerous advantages because of which parties now a day’s prefer arbitration over the court proceedings. It is a less expensive, less time consuming process. Many states have made arbitration process compulsory. In many jurisdictions areas arbitration is somewhat a similar process to trial. This article will basically focus on the concept of Arbitration, its types and importance in today’s world. One more important aspect which needs to be taken into account is the concept of “logic”. Generally, we deal with the statutes or the codified law, but in this article we will try and see the genesis of applying logics in solving disputes, which is certainly more unpredictable approach towards any matter in dispute. This article, primarily focuses that even after having set of codified laws, how can one solve their matter in comparative less time period by using same set of laws and applying a little technical and logical reasoning towards it. These potential appeal mechanisms are friendly, and avoid signs of erosion. Along with the application of law, its enforcement (the arbitral awards given) also and always taken into consideration and are acted accordingly.

MEDIASI SEBAGAI UPAYA PENYELESAIAN MASALAH ANTARA PT ANEKA SUMBERBUMI JAYA DENGAN WARGA DESA BUMISARI KECAMATAN NATAR LAMPUNG SELATAN

This study analyzes: (1) the implementation of mediation as a method of resolving problems that occur between PT Aneka Sumberbumi Jaya and Residents of Bumisari Village, Natar Subdistrict, South Lampung (2) obstacles in conducting mediation as a method of resolving problems that occur between PT Aneka Sumberbumi Jaya and Bumisari Village Residents Natar District, South Lampung. This research was conducted in Bumisari Village, Natar District, South Lampung. The selection of research locations was done purposively. The informants from this study consisted of the Head of the mine who was a representative of the company, representatives of the residents of Bumisari Village, the village head and representatives of the Natar Police Sector as a mediator. The method used in this research is descriptive method with the data used are primary data and secondary data. The results showed that: (1) The mediation process carried out by PT Aneka Sumberbumi Jaya and Bumisari villagers proceeded well with 6 stages, namely the delivery of the wishes of the disputing parties, description of the situation and case identification, problem mapping, resulting settlement alternatives disputes, alternative evaluations and elections and formulating agreements (2) Obstacles in the mediation between PT Aneka Sumberbumi Jaya and Bumisari Village residents are the lack of awareness of the company in carrying out the rights and obligations that must be carried out to the community. Another obstacle is the selfish attitude of each party in dispute that causes problem solving to take place in a rigid and convoluted manner that takes a long time.

Elecciones 2018 en Paraguay: ¿hasta qué punto son democráticas las campañas y las elecciones?

El presente texto realiza un balance de las elecciones generales en Paraguay de abril de 2018, en las que fue electo presidente de la República Mario Abdo Benítez, de la Asociación Nacional Republicana (ANR), partido que lleva más de 66 años en el poder. El objetivo principal de este estudio es el análisis del proceso electoral, específicamente de la campaña electoral y la jornada de emisión del sufragio, considerando criterios democráticos.Se examinan los errores respecto a los resultados que vaticinaban las encuestas y las diferencias mínimas finales. Al respecto se plantea la pregunta: ¿qué tan democrática ha sido la campaña electoral? Para ello, se describe la oferta programática de los contendientes y las estrategias principales de la campaña electoral. Palabras claves: elecciones; campaña electoral; comunicación política; Paraguay**2018 Elections in Paraguay: how democratic are campaigns and elections?This article analyzes the general elections in Paraguay in April 2018, in which Mario Abdo Benítez, of the Republican National Association (ANR), was elected president of the Republic, a party that has been in power for over 66 years. The main objective of this study is the analysis of the electoral process, specifically the electoral campaign and the voting day, considering democratic criteria. The prediction errors in the surveys and the final minimum differences are examined. In this regard, the question arises: how democratic has the electoral campaign been? For this, the programmatic offer of the contenders and the main strategies of the electoral campaign are described.Keywords: elections; electoral campaign; political communication; Paraguay

ASAS KESEIMBANGAN DALAM ALTERNATIF PENYELESAIAN SENGKETA HUBUNGAN INDUSTRIAL DI LUAR PENGADILAN

Industrial labor disputes between workers or workers and employers often occur as a result of mismatches of opinion and / or actions of both. Both disputes are usually preceded by violations of law and may occur not for violation of the law. For the right institution to resolve industrial relations disputes, if based on the principle of balance thinking is a deliberation to seek dispute resolution, the right institution is a non-litigation institution outside the court, without having to be brought to the Industrial Relations Court. To further ensure the creation of a balance principle for the parties in disputes in industrial relations disputes, according to Law no. 2 of 2004 on Industrial Relations Dispute Settlement, dispute settlement takes priority through negotiation to seek deliberation outside the consensus of the courts, this will create a balance principle for the position of the parties while providing legal protection for workers/laborers. In accordance with the legal matter, the purpose of this study is to examine alternative forms of realization of industrial relations dispute settlement outside the court as a reflection of the principle of equilibrium.

Analisis Peran Rusia sebagai Mediator dalam Penyelesaian Konflik Nagorno Karabakh Periode 2008-2016

The Nagorno Karabakh conflict is a conflict over territorial disputes that is synonymous with inter-Azerbaijan strife that adheres to the principle of integrating its territory in Nagorno Karabakh and Armenia which support the Nagorno Karabakh region and ethnic Armenians who are in it for independence from Azerbaijan. The dynamics of the Nagorno Karabakh conflict between Azerbaijan and Armenia continue to unfold, and there has never been a sustainable peace agreement between the two parties in dispute since the peace agreement Bishkek (Bishkek Protocol) 1994. Along with the dynamics of the battle, Russia has a very active role in the mediation and peace-building process between the two parties in conflict. Russia's position as mediator is carried out within the official framework of the OSCE Minsk Group and in the personal initiation of the state in the medium of the trilateral meeting. This research will describe the dynamics of the Nagorno Karabakh conflict in the period 2008-2016 along with efforts to resolve disputes under the Russian role. 
 Keywords : Nagorno Karabakh Conflict, Russia, Mediation, and Contigency Model

Asia-Pacific Free Trade Deals Clash with GDPR and Convention 108

Two distinct worlds of international agreements – concerning free trade and data protection – are now colliding due to provisions which may impose incompatible obligations on parties to both types of agreements. On the one hand, new Asia-Pacific free trade agreements (FTAs) include strict limits on how legislation can restrict personal data exports or require data localisation. On the other hand, the EU’s GDPR, and Convention 108/108+ require countries’ laws to impose restrictions on data exports if those countries wish to be held to provide ‘adequate’ protection, or to accede to the Convention. Mexico and Japan are the first countries where a clash of these obligations requires resolution, but similar clashes may soon arise in relation to Canada, New Zealand, and potentially other countries. This article explains how and where these conflicts are arising. The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP – the ‘new TPP’) comes into force on 30 December 2018 because six of the eleven signatories (Mexico, Canada, Japan, New Zealand, Australia and Singapore) have ratified it and deposited their agreements (only four were needed). It comes into force between ratifying parties. CPTPP’s implications for privacy legislation are primarily that (i) it imposes an onerous Four-Step-Test’ for any exceptions to its prohibition on data export limitations. There are similar data localisation prohibitions. State party dispute settlement provisions can result in a panel awarding monetary assessments against a party, and in some limited situations Investor-state dispute settlement (ISDS) provisions could apply. The United States – Mexico – Canada Agreement (USMCA – the ‘new NAFTA’) was agreed to on 1 October 2018, but is yet to be ratified and come into force. The test for data export restriction limitations, although using different words, is in substance the same as in the CPTPP. ‘Data localisation’ by requiring local processing is prohibited, and there are no exceptions, unlike the CPTPP. The requirements of both the CPTPP and the USMCA require careful consideration by any of their Parties who are already Parties to Council of Europe data protection Convention 108 and its 2001 additional Protocol, or intending to accede to Convention 108+, or have obtained an adequacy decision by the EU or are attempting to obtain one under the GDPR. This article considers the position of Mexico, due to its accession to Convention 108 on 1 October 2018, its ratification of CPTPP, and potential ratification of USMCA. It also considers the position of Japan, due to it being about to obtain a positive ‘adequacy’ assessment under the GDPR from the EU, and its ratification of the CPTPP. Canada is in a similar position, and other countries may become so. When worlds collide, the results are unpredictable.

The Existence of Party Court in Completing the Internal Disputes of Political Parties in Indonesia (A Case Study of Persatuan Pembangunan Party)

Abstract According to Law Number 2 of 2011, “Any internal conflict inherent a political party, is resolved by that party’s internal organ known as the Internal Dispute Settlement Committee. But unfortunately, not all internal conflicts were ironed out, just as what happened to Persatuan Pembangunan Party. Based on the results of the current study, several factors could be identified to influence the resolution of internal political party disputes, including 1). the inability of the disputed internal party to pay heed to the decision of the Party Court. 2). the government violation of the decision made by the Party Court with biased interference. 3). There is doubtful neutrality considering the membership of the Party Court who comes from internal political parties. 4). Not considering the Party Court's decision while adjudicating disputes over the management of political parties.Keywords: Party Court, Decision, Final.

Application of direct payment clause 30A.0 of the Asian International Arbitration Centre (AIAC) Standard Form of Contract (with quantities)

Conditional payment such as “pay when paid” or “pay if paid” can create negative chain effect on the parties in construction projects, resulting in delay on the completion of a project, adversarialism and may affect a contractor’s reputation. Asian International Arbitration Centre (AIAC) has launched a standard form of contract which is Construction Industry Payment Adjudication Act (CIPAA) compliance with the aim to reduce payment issues. The aim of the research is to identify whether the clause for “direct payment under CIPAA 2012” of the new AIAC standard form of contract can facilitate problems in direct payment. In achieving the aim of the research, five legal cases were analysed and thirty questionnaires forms were distributed. Legal cases analysis findings highlighted that the major reasons of the direct payment issue being referred to court is due to the validity of the direct payment agreement between the disputant’s parties. Based on the cases heard before CIPAA enactment, the findings show that out of the three cases, the disputants went to litigation because of the legality of direct payment agreements. Most of the agreements were made orally. For cases analysed after CIPAA was enacted, the findings show that the disputant parties do not opt for adjudication and that the main contractors try to mitigate their responsibilities to the employer. The results from the questionnaires distributed established that, the direct payment clause could be successfully adopted for future use of the industry. Eventhough the AIAC standard form of contract has been formally introduced to the industry, but it is not widely used. From the findings of the questionnaire, it shows that with encouragement and support from the industry, direct payment clause of AIAC standard form of contract have the potential in reducing payment issues in the future. With the remodeling of standard form of contracts that are available in construction industry to be CIPAA compliance , it is hoped that this move may scale down the prevalent payment issues in Malaysian construction industry.

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.

ISSUES ARISEN TO RENT ARREARS DETERMINATION ACCORDING TO THE PURPOSE OF PREMISE

A significant part of disputes between the parties in the economic activity arises on the issue of establishing the real of arrears amount for rent of communal property. One of reasons for these disputes is the wrongly defined and applied rental rate while determining the rental amount. Amount and terms of rent payment are established in the lease agreement between the lessor (owner) and the tenant, and the lease agreement for such property is the basis for charging rent for the leased property. Application of the rental rate for calculating the rent to the tenant that does not correspond to the purpose of the leased premises, may lead to under-charging and, accordingly, to the non-transfer of rent to the lessor and to the city budget. This article considers the case of application of rental rates while concluding a lease agreement and demonstrates how the rent arrears amount can change in the case of improperly determined rental rate. The analysis of current legislation of Ukraine is given, which is concern of their correct using, namely, the method recommendations about established rental rates for premises using according to special purpose on example of “Methods of rental payment calculation for property, which is in communal property of Kharkiv territorial community and its distribution proportions”, which was approved by 12th session of Kharkiv City Council of 6th convocation from 23.11.2011 № 566/11 and specific lease agreement are analyzed. Presented analysis of the current legislation of Ukraine on rental rates application can help while performing forensic researches related to establishment of real arrears amount for rent while resolving litigious economic disputes.

Maritime Boundary Disputes and Article 298 of UNCLOS

Maritime boundary disputes pose the most dangerous potential for conflict between States. Article 298 of UNCLOS was designed as a safety valve to allow exclusion of sensitive disputes arising out of contested maritime boundaries—but also to provide a safety net for peaceful resolution of all UNCLOS disputes. This paper offers views on four questions which remain unresolved. First, may States exclude obligations of restraint and cooperation under Articles 74(3) and 83(3) of UNCLOS from compulsory dispute settlement by an Article 298 declaration? Second, for submission to compulsory conciliation, what criteria should be used to decide if the dispute arose subsequent to the entry into force of UNCLOS? Third, does a court, arbitral tribunal or conciliation commission have jurisdiction to consider ‘mixed disputes’ involving land sovereignty or other rights? Fourth, what is the meaning of “shall, by mutual consent”—when conciliation fails to reach an agreement, are the parties bound to refer their dispute back to compulsory third party dispute settlement under section 2 of Part XV of UNCLOS?

The Dispute Settlement Mechanisms in Major Multilateral Treaties

Although dispute settlement mechanisms providing for compulsory referral to a third party are rarely used, their presence can, and usually do, have a major underlying influence over the actions of States, which are typically anxious to avoid lengthy and expensive dispute settlement procedures. We undertook a quantitative analysis of the dispute settlement mechanisms of 236 major multilateral treaties and found that most of the multilateral treaties provide for compulsory referral to a third party (ie, they can be triggered without the consent of both disputing parties). Of those treaties, the majority provide for compulsory referral to an arbitral tribunal. These findings are significant, as they debunk the myth that treaties providing for compulsory referral to a third party are uncommon. This paper also looks at the various compromise solutions that have been developed over the years in response to State disagreement over whether to include compulsory third party mechanisms in treaties, as well as the number of treaties that contain voluntary and non-third party dispute settlement mechanisms. This analysis will enable a better understanding of the different types of dispute settlement mechanisms found in multilateral treaties and their background and purpose. We also hope that this paper will be useful for those involved in the negotiation of dispute settlement provisions in future multilateral agreements.