Practice Of Dispute Resolution Research Articles

OUT-OF-COURT AND JUDICIAL DISPUTE SETTLEMENT PROCEDURES IN KAZAKHSTAN

The article discusses the extrajudicial and pre-trial procedure for resolving disputes in the Republic of Kazakhstan, provided for by law, agreement and judicial practice. The advantages of resolving disputes out of court and before trial are noted, which are reflected in qualitative and quantitative characteristics at the level of the legal culture of the population and the regulatory burden of the courts. Among the problems of the theory and practice of dispute resolution, the authors indicate the lack of clear criteria and limits for the settlement of disputes in extrajudicial and pre-trial procedures. To solve this problem, the authors make a distinction between extrajudicial, pre-trial and judicial procedures for resolving disputes. Attention is paid to the ambiguous understanding of the extrajudicial and pre-trial procedure for resolving disputes in legislation, theory, and judicial practice. Therefore, the authors generally recognize dispute resolution in one form or another as alternative to judicial procedure as methods of resolving disputes, as well as as extrajudicial and pre-trial forms of protection of rights, freedoms and legitimate interests. The norms of the legislation of the Republic of Kazakhstan regulating the extrajudicial and pre-trial procedure for resolving disputes, scientific works of Kazakh and foreign authors, methodological recommendations of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Kazakhstan, pilot projects of the Supreme Court of the Republic of Kazakhstan and judicial practice on pre-trial settlement of disputes were studied. At the end of the work, it was concluded that the out-of-court procedure for resolving disputes mostly includes arbitration and the notary, and the pre-trial procedure with a conditional share includes external administrative procedures, mediation procedures and participatory procedures. In general, they are alternative methods of resolving disputes, differing in the purposes for which they are carried out, as well as the subjects who carry them out.

Restorative Justice Regulations in Reforming Criminal Procedure Law

The aim of this research is to determine restorative justice regulations in reforming criminal procedure law. This research is legal research with juridical-normative characteristics to gain an understanding of law at a normative level and its implementation at a practical level using Roscoe Pound's legal theory approach where law is a tool of social engineering. Various questions that arise in this research will be analyzed from the perspective of Roscoe Pound’s theories. The practice of dispute resolution involving the affected parties and the community has actually been widely implemented in Indonesia. In fact, dispute resolution outside the formal judicial process was carried out long before the Indonesian state was formed.

Klausul Arbitrase dan Kewenangan Absolut Lembaga Arbitrase dalam Praktek Penyelesaian Sengketa di Luar Pengadilan

In Indonesia, the settlement of disputes through arbitration is regulated by Law no. 30 of 1999 concerning Arbitration and Alternative Problem Resolutions. Article 7 Law no. 30 of 1999 stipulates that the parties can agree to an agreement on a dispute that has occurred or will occur between them to be resolved through arbitration with a written agreement agreed upon by the parties. In the selection of arbitral settlement there is a link between the arbitration clause and the selection of settlement through arbitration as well as the implementation of absolute authority and the selection of arbitral institutions in the practice of dispute resolution outside the court. The approach method used is normative juridical. The results of the study state that the choice of arbitration as a dispute resolution is based on a contract in accordance with what is implied in Article 7 and Article 9 paragraph (1) of Law Number 30 of 1999, and in this case the parties to the agreement agree to include an arbitration clause, The court is bound by the agreement made by the parties, with the provisions of the article, the absolute competence of arbitration is born when the parties expressly choose to resolve disputes through an arbitration forum where this has been accommodated in Article 3, Article 4, Article 10 and Article 11 paragraphs (1) and (2) in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, which negates the authority of court institutions to examine cases that are already bound by an arbitration clause.

CAS FOR ESPORTS: REALITY OR UTOPIA?

The authors examine the peculiarities of dispute resolution in esports and the current state of reforms. The author analyzes the factors influencing the choice of jurisdiction for consideration of disputes in the field of esports in the absence of clear rules for determining the jurisdiction and category of disputes in the field of esports. Attention is drawn to the possible options for jurisdiction in the field of esports. The author notes the peculiarities of dispute resolution within the framework of litigation, commercial arbitration, sports arbitration court and special arbitration bodies or persons authorized to consider disputes and their legal regulation. The author describes the advantages and disadvantages of the existing arbitration bodies and focuses on the mechanisms that have the potential to improve dispute resolution in the esports industry. Given the practice of dispute resolution, it is summarized that arbitration and which institutions are currently the main places for dispute resolution in the field of esports. It is concluded that due to the increasing inclusion of virtual sports (video games) in the category of sports, they should have the same protection regime, and therefore, the resolution of disputes related to them should fall under the jurisdiction of the Court of Arbitration for Sport. Therefore, the Court of Arbitration for Sport may potentially serve as the final court of appeal for any sports organization, if provided for in its regulations. At the same time, it is currently problematic that the Court of Arbitration for Sport has not yet recognised esports as a legitimate sport and has therefore not yet made any arbitral awards in cybersport disputes. This is the basis for the creation of a specialized court that would be able to consider a wide range of technical disputes related to video games. However, the author substantiates why the creation of a new institution is less effective than reforming the existing Court of Arbitration for Sport.

Implementation of Human Rights in International Investment Legal Relations: Selected Issues of Dispute Resolution Practice

The paper covers certain provisions of a comprehensive study of the implementation of human rights in international investment legal relations. The author attempted to reveal the relevance of the ongoing research and assess the significance of the interaction between international investment law and international human rights law in modern realities. The paper reveals the main options for the interaction of international investment law and international human rights law, both in material and procedural aspects. The author focuses on the practice of resolving international investment disputes in relation to the actions of the host state with reference to the protection of human rights as one of the options for manifesting the relationship between the two branches of public international law. The author reveals the existing patterns in the practice of resolving investment disputes. As a key conclusion, the author puts forward the idea that it is possible to generalize the results of a harmonious interpretation (construction) and the formation of an appropriate unified legal framework for the norms of international public law with a view to its subsequent harmonious application.

КОНКУРЕНЦИЯ ЕВРОПЕЙСКОЙ И БРИТАНСКОЙ ЮРИСДИКЦИЙ В УСЛОВИЯХ BREXIT

One of the features of the modern model of interaction between legal systems is the competition between national jurisdictions. The states use different methods to improve the efficiency of their courts in order to make their jurisdictions more attractive. The competition between jurisdictions is actively influenced by political processes. A striking example of the impact of politics on jurisdictional issues is Brexit. This article aims to consider the topical issues caused by the UK's exit from the single legal space of the EU in terms of the functioning of the civil justice system, the consequences of these processes for the mechanisms of choice of jurisdiction. Using the comparative legal method, this article explores the consequences of Brexit for Russian companies and Russia’s jurisdiction, including in connection with: a) the continuing practice of dispute resolution between Russian companies or Russian businessmen in London; b) the new conditions of competition between British and European, especially French, courts for attraction to their jurisdictions; c) the need for dispute resolution on a number of pressing issues, including those caused by the complicated geopolitical situation. The materials used include UK and European legal literature, the reports of the Council of the European Commission for the Efficiency of Justice and expert opinions of Russian and European lawyers. The conclusions include practical recommendations on how to improve the competitiveness of Russia’s jurisdiction and protect Russia's interests in the legal sphere. This article highlights the need to develop cooperation between the Russian court system and courts of the EAEU and EAEU countries, to create a system of economic dispute resolution courts, which would foster the transfer of important civil cases to the Russian jurisdiction or the jurisdiction of the EAEU.

Critical Issues Affecting Dispute Resolution Practice in Infrastructure Public–Private Partnerships

Infrastructure public–private partnership (PPP) projects across the world have suffered early termination, premature change of ownership, cost and time overruns, among others, often resulting from a number of issues some of which are related to poorly managed dispute. Despite this, literature revealed that no process-centric attempt had been made to highlight the critical issues affecting dispute resolution (DR) in infrastructure PPPs. Through event sequence analysis (ESA) of 158 data sources (including 63 journal articles), this study examined the critical issues affecting infrastructure PPP DR practice, with the motivation of unveiling areas of potential improvement to the DR practice. Among other findings, the multiple roles of the public partner in the DR process were found to result in ambiguity on who was responsible for overseeing their actions. Relatedly, the effectiveness of dispute boards was on some occasions undermined when they were assigned multiple functions. Besides this study adding to the theoretical body of knowledge through application of ESA in infrastructure PPP DR research, it clarified the critical issues affecting current infrastructure PPP DR practice, thereby enhancing infrastructure PPP practitioners’ understanding of potential barriers to successful infrastructure PPP DR. Although the researchers acknowledge the plausibility of an in-depth investigation into ways in which the critical issues in DR practice can be addressed, the main focus of this study was to provide clarity on the critical issues affecting DR in infrastructure PPPs. A separate study focusing on improvements to DR in infrastructure PPPs is recommended.

Pravni sistem svetske trgovinske organizacije i elektronska trgovina

The paper discusses several important issues related to the regulating of electronic commerce and their incorporation into the WTO legal system. First of all, the subject of the study is the relevance of the existing legal framework for this new area, with a special focus on the General Agreement on Trade in Services. Within that framework, the approach to the practice of dispute resolution in the given segment is considered. The paper also discusses the institutional efforts undertaken in the WTO with the aim of regulating electronic commerce. In particular, some of the possible courses of action are systematized and critically analyzed and suggestions are made for realistically feasible solutions to the problem of legal regulation in the given area. The paper concludes that electronic trade has posed a complex legal challenge to the WTO, which must be answered urgently and as comprehensively as possible. However, the existing legal rules of this organization are only partially applicable to the given area. The attempts to extend the relevance of the given rules through the practice of dispute resolution in WTO have a limited scope. On the other hand, the activities on institutional improvement through negotiations in the WTO are blocked due to the different positions of the member countries. Therefore, we are of the opinion it necessary to create a realistic approach that would be widely acceptable, and which would combine the development of the most general rules, while simultaneously resolving practical issues related to electronic commerce.

The Normativity of Law in Nature Revisited: Natural Law in Late Hellenistic Thought

In this paper I revisit nature as a source of normativity for law in the later Hellenistic period, that is beyond the opposition of law and nature in the early classical period, Plato’s and Aristotle’s naturalism, or the early Stoics’ conception of the common law. I will focus on the first century BCE, when the expression ‘natural law’ gained prominence, reconstructing its origins in the interaction between Hellenistic philosophers and the Roman elite, including jurists. I argue that for the jurists the Stoic doctrine of law in nature offered a theoretical underpinning for their unique practice of dispute resolution, whereas for the Stoics this Roman practice offered an unexpected opportunity to instrumentalise their conception of law.

Praktik Penyelesaian Sengketa Perbankan Syariah Di Pengadilan Agama Kota Kediri

This study aims to analyze the practice of sharia banking dispute resolution at the Kediri City Religious Court, to review the obstacles experienced by the Kediri City Religious Court in resolving sharia banking disputes, to examine the efforts that must be made by the parties towards the settlement of sharia banking disputes in the courts. Religion of the City of Kediri in order to create legal goals. This study uses field research and literature, there are two sources of data in this study, namely primary data sources and secondary data, after combining the data exposure using deductive, descriptive and inductive methods. The results of this study explain that the settlement of sharia banking disputes at the Religious Courts of the City of Kediri is still done manually and of course there are obstacles faced by the religious courts of the city of Kediri, namely from justice seekers and third parties, so in this case to realize the legal objectives to make it more effective. effective and efficient is resolved by peaceful means or amicably using a mediator.

Blockchain crowdsourced arbitration in construction project delay resolution

A major matter in any industry, especially one with complicated stakeholder relationships like the construction industry, is dispute resolution. Blockchain technology, in the form of crowdsourced arbitration, may assist project stakeholders to conclude a verdict for any conflict including an argument over delay damage responsibility. This paper aims to propose a Blockchain-based methodology to facilitate small and medium project delay resolution demands on a timely and transparent basis. The methodology consists of two implementation stages: (i) A Blockchain-powered crowdsourced arbitration jury to analyze and determine the responsible party and subsequent affairs following predefined conditions of the contract and (ii) Blockchain-based smart contracts to enable automatic implementation of said events including automatic payment of penalty and/or compensation cost. The introduced method is validated by a case study of crowdsourced arbitration using the Rhubarb plat-form to resolve disputes over who should be responsible for the delay of a garage construction project taken from an academic study on delay analysis techniques. The final verdict was that the contractor must reimburse the client’s financial loss following established terms and conditions on liquidated ascertained damages via smart contract operation. The research also underlines the pros and cons of both current decentralized dispute resolution practice and this research proposed model in the construction field for future studies.

Mediation as an alernative way to resolve economic dispute

Recently, Ukraine has increasingly used the practice of alternative dispute resolution without the use of traditional court procedures, as the established tradition of appealing to government agencies about each conflict has led to an overload of the judiciarysystem. There is an alternative way that can improve access to justice and reduce the burden on the courts –using a method of conflict resolution such as mediation. In the countries of the Anglo-Saxon legal system - the United States, Australia, Europe mediation has been the most common alternative way of resolving disputes for a long time. In the Ukrainian scientific and legal sphere the institute of mediation is not so developed and frequently used, and currently is only at the stage of formation and development. Scientists and legislators have been working for many years to create appropriate conditions for the introduction of mediation in Ukraine: educational work on the content and benefits of mediation, development, expert analysis of draft laws on mediation, providing detailed recommendations, adopting and implementing new regulation acts, special programs are being implemented through the creation of coordination groups, institutes and mediation centers. Therefore, there is a wide range of topical issues regarding the mediation mechanism, which are subject to detailed research and require practical studying.
 This article is devoted to the study of the general principles of the introduction of mediation as an alternative way of resolving economic disputes in the conditionsof updating legislation. The article identifies the main stages of the institution of mediation in Ukraine, the concept and features of mediation as one of the alternative ways to resolve commercial disputes, analyzes national and international regulations in the field of mediation.

Penyelesaian Sengketa Non-litigasi dalam Sejarah Peradaban Islam

Dispute settlements have two form, litigation and non-litigation. Some options as an alternative dispute resolution non-litigation include mediation, negotiation and arbitration. alternative dispute resolution has long been practiced in Islam to solve the problems. This qualitative-descriptive study uses a sociohistorical approach that examines and analyzes the practice of alternative dispute resolution in general, and mediation, negotiation, arbitration in particular. This study aims to discuss the theory of nonlitigation dispute resolution and its application in various areas of life in the classical Islamic era. The key issue explored in this research is how to implement non-litigation dispute resolution practices in Islamic history and the event that they are used. The conclusions of this study are; first, the practice of alternative dispute resolution has been done in the classical Islamic era on the event of retaking the Hajar Aswad by using the method of mediation. Second, the practice of negotiation on the event of the beginning of the Hudaibiyah treaty and the third, the practice of arbitration (tahkīm) on events involving Muawiyah and Ali bin Abi Talib in the battle of Shiffin.

Peculiarities of Ownership to Sunken Property Located in the Territorial Waters of the Russian Federation

The paper is devoted to the analysis of various aspects of the legal regulation of ownership to sunken property located within the territorial waters of the Russian Federation. The following areas of application of the rules governing the ownership to sunken (submerged) property are considered as the subject of regulation of ownership to sunken property and geographical arrangement in relation with regard to maritime areas. The author justifies the expediency of the Russian Federation’s accession to the International Convention on the Removal of Wrecks of 2007 that regulates the universal mechanism of liability insurance for the removal of wrecks. It is concluded that it is necessary for Russian courts to take into account the judicial and arbitration practice of dispute resolution arising from the application of unified norms that have accumulated in the States Parties to international treaties on the law of the sea. Numerous legal gaps have been identified in the special legal regulation of ownership of sunken property that are proposed to be eliminated by legislative amendments. The author dwells on the necessity of defining a clear procedure for the removal and destruction of sunken objects, ways of exercising the rights of persons who accidentally raised sunken property, as well as consideration of the issue of submerged ships and vessels that plays an important role in the protection of the environment from pollution by harmful substances and ensuring the safety of navigation at the state level by adopting a federal program in Russia on raising, removal, disposal of sunken property also as an objective before different departments. As a conclusion, the author emphasizes the need to register all submerged objects in the territorial waters of Russia on a specialized account in order to prevent unauthorized work on such objects, declare by a special government decree all submerged ships and vessels containing the remains of the soldiers killed in action as military graves, as well as conduct systematic scientific and technical studies of all submerged objects in order to identify the real environmental safety of the marine environment.

ОНЛАЙН-УРЕГУЛИРОВАНИЕ СПОРОВ УЧАСТНИКОВ ЦИФРОВЫХ ПЛАТФОРМ (ЭКОСИСТЕМ)

The development of digital platforms (and now ecosystems) logically leads to the emergence of various kinds of mechanisms for resolving disputes arising between platform participants (ecosystems). Online dispute resolution systems of this kind currently exist in Russia and abroad; there are also certain normative approaches to their creation and regulation at the level of UNCITRAL, the European Union and individual states. However, it is in the era of the platformization of economic relations that their regulation becomes important. Formally, today the parties to such disputes are not limited when resolving disputes in the use of state (justice) and alternative dispute resolution mechanisms, but in many cases their use can be difficult and burdensome (due to the cross-border nature of the platform). In addition, refusal or evasion from the use of online dispute resolution mechanisms “inside” the platform (ecosystem) can lead to certain negative consequences for a person. In this regard, the study of the phenomenon of online dispute settlement between participants of platforms (ecosystems) is of practical and theoretical interest. This is all the more important because there is no corresponding regulation in Russia and only attempts are being made to create special regulations. As their analysis shows, unfortunately, domestic approaches cannot yet be recognized as fully adequate and reflecting the interests of various parties – buyers, sellers and platforms. The author of the article analyzes the existing practice of online dispute resolution, draft regulations. The existing key forks in approaches to the creation of new regulation are shown and proposals are made on further directions of development of regulation.

African Customary Dispute Resolution vs Alternative Dispute Resolution for Juvenile Crime in Ghana

Juvenile delinquency is a challenge for most African states, and Ghana is no exception. Recidivism, stigmatisation and victim dissatisfaction indicate that Ghana’s formal criminal justice system, with all its merits, has posed severe challenges to the administration of juvenile justice. This article examines the practice of Alternative Dispute Resolution (ADR), which utilises restorative conflict resolution processes in place of prosecution and sentencing in juvenile justice systems of various jurisdictions. Through processes such as victim-offender mediation, ADR invites full participation and consensus between victims, offenders and persons indirectly affected by the crime committed and seeks full and direct accountability. Some inadequacies of ADR principles and practices render it less relevant to the African context. The resultant lacuna can be filled with indigenous dispute resolution practices to combat crime and its repercussions, constituting the African Dispute Resolution (AfDR). The reliance on Ubuntu in South Africa's Child Justice Act and traditional justice system mechanisms in the Democratic Republic of Congo, Rwanda and Uganda to deal with the aftermath of genocides and wars are contemporary examples of AfDR. Ghana would need to rely on AfDR to complement its formal criminal justice system to alleviate juvenile delinquency.

ADR practice in planning conflicts: Australian lawyers’ thinking on ADR, training and mentorship

ABSTRACT Lawyers’ alternative dispute resolution (ADR) practice is an important part of legal practice and education. In this research project, we explored the views of planning lawyers in Melbourne, Australia who were engaged in the ADR processes of mediation and compulsory conferencing. The participants interviewed endorsed the use of ADR in planning disputes and spoke of the need to adopt a collaborative approach drawing on their negotiation and communication skills. They also spoke of their role providing legal expertise in a complex jurisdiction. The lawyers reflected on the nature of planning disputes where conflict can be emotional as disputes deal with the communities’ lived experience of the built environment and the wider concerns of the planning of cities. The lawyers showed the ability to focus on the larger justice issues that affect the jurisdiction. Additionally, the study explored the lawyers’ views on their training in ADR. While some participants appreciated ADR training courses, many pointed to the benefits of learning from those lawyers experienced in planning law disputes. The research presented here suggests the need for ongoing peer support and mentorship for lawyers in the use of ADR, in addition to training, that is particular to their jurisdiction.

MODEL PENYELESAIAN SENGKETA WARIS DALAM MASYARAKAT ACEH

This article analyzes the models of the application of the theory of the inheritance dispute resolution in Bireuen community, Aceh. The inheritance dispute resolution in Aceh is not always done through the litigation system, but can also be done through non-litigation channels. This study is limited to the practice of the application of the alternative dispute resolution theories that took place in Bireuen community, Aceh, and describes the tendency of the Bireuen community to choose to resolve the inheritance disputes through the gampoeng justice system. The field data collection was carried out by observing the practice of dispute resolution in the community, and in-depth interviews with village officials and the disputing parties. The results show that the Bireuen community, Aceh tends to use the theory of negotiation, conciliation and facilitation through the customary justice system, namely the gampoeng court and the mukim court. Both of the gampoeng justice systems prioritize peaceful efforts and ensure privacy between family members. This principle is a consideration for the Bireuen community, Aceh chooses to resolve the inheritance disputes following the customary justice system compared to the official state justice system as a characteristic of the modern justice system implemented by the nation state.

On some Issues of the Practice of Dispute Resolution in the Field of Insurance Bank Deposits

The article analyzes the practice of applying the federal law «On Deposit Insurance in Banks of the Russian Federation», defines the categories of cases in the field of deposit insurance, highlights the circumstances and facts that the court pays special attention to when considering certain categories of cases. As a result, it is concluded that the Supreme Court of the Russian Federation should issue an act summarizing the practice of considering disputes in the field of mandatory deposit insurance.

Audientia sacerdotalis?—Remarks on the Legal Nature of Dispute Resolution by Ecclesiastics in Late Antiquity

Abstract The problem of audientia episcopalis in late antiquity has been the subject of extensive research in the past. Previous studies have usually focussed on the legal doctrine, as well as the picture of bishop courts in the light of the literary sources. In contrast, the question of how audientia episcopalis functioned in the legal practice as shown by papyri has caused scholars much difficulty, due to the limited material available as well as the obscure nature of the institution. One could therefore ask: how is it possible that such allegedly common practice of dispute resolution by the bishops—as literary sources make us believe—is so elusive in the papyri? How to explain the simultaneous increase for that period of the papyrological attestations regarding arbitration/mediation carried out by the clergy of lower rank? Could we be dealing with some sort of audientia sacerdotalis functioning in the legal practice? How widespread was in fact the audientia episcopalis, and was this institution homogeneous or rather heterogeneous in nature? The paper presents the attempt to answer these questions by confronting the imperial law with the evidence of legal practice.