Pretrial Settlement Research Articles

Institute of mediation as an independent kind of pre-trial dispute settlement

Institute of mediation as an independent kind of pre-trial dispute settlement

THEORY AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION TO PROTECT THE RIGHTS OF ENTREPRENEURS

The article provides a theoretical and legal analysis of the genesis, regulatory basis of the International Commercial Arbitration at the Chamber of Commerce and Industry of Ukraine in the direction of settling commercial disputes between businesses from different countries. Based on international agreements, which are part of the national legislation of Ukraine, the theoretical and legal author's investigation of the essence and significance of interstate instruments in the field of pre-trial settlement of trade disputes. Using the norms of current international trade law, as well as in view of numerous scientific studies in this field, the author presents different conclusions that may form the basis for improving existing regulations of Ukraine, especially the Laws of Ukraine "On Foreign Economic Activity" and "International Commercial arbitration". Due to a thorough economic and legal analysis of key concepts, such as "arbitration", "arbitration agreement", "international arbitration", "commercial arbitration", etc., the author's approach to the application of current legislation in the field of legal protection of rights and legally protected interests management. Particular attention is paid to those international legal instruments for settling economic disputes that best meet the interests of the domestic economy. The essence of autonomous, mixed contractual and procedural scientific theories on the legal essence of international commercial arbitration is analyzed, and their imperative filling with those legitimate instruments of coercion which are applied to violators of international commercial law and other normative legal acts which regulate legal relations is investigated. Particular attention is paid to the coverage of scientific and practical framing of issues related to the implementation of positive international and European experience in the legislation of Ukraine, primarily on the pre-trial settlement of commercial disputes.

The use of digital technologies in the administration of justice in the field of environmental crime

In the present paper the authors consider technological and legal problems that arise in the course of adopting information technology in legal proceedings. The authors analyze the efficiency of using digital technologies in the administration of justice within the crisis period of 2020 on the basis of the World Justice Project, worked out by the Council of European Commission for the Efficiency of Justice CEPEJ. These technologies are used by both courts of the Russian Federation and courts of some other countries. The paper presents the analysis of prospects to apply artificial intelligence in the work of courts during adjudication on certain categories of disputes (issuance of a court order, consideration of cases as summary judgment proceedings). In order to ensure accessibility of justice, the authors urge on necessity to turn to online legal proceedings; they also highlight the necessity to organize special legal services for individuals (free-of-charge) and for business entities. The paper calls for the urgency to create a special digital portal for pretrial settlement of disputes between legal entities.

ФОРМЫ ВНЕСУДЕБНОГО УРЕГУЛИРОВАНИЯ НАЛОГОВЫХ СПОРОВ: ПРАВОВАЯ ПОЛИТИКА СОВЕРШЕНСТВОВАНИЯ

Every citizen of the Russian Federation in everyday life directly or indirectly becomes a participant in tax relations, which are regulated by the Tax code. Since legal acts and laws are quite ambiguous, and the activities of the state are associated with the seizure of property from individuals and legal entities, the emergence of tax conflicts is inevitable. Compromise forms of pre-trial settlement of conflicts are particularly relevant in modern tax relations. They contribute to the emergence and development of trust and fruitful relations between citizens and representatives of tax authorities on the basis of cooperation. The introduction of such procedures as direct negotiations between the parties, mediation and arbitration allow not only to resolve tax disputes promptly, minimize the costs of the parties, reduce the periods of consideration, but also contributes to the unloading of arbitration courts. This article discusses all forms of pre-trial settlement of tax disputes, examines their strengths and weaknesses, the synergetic effect of these forms with preventive and Advisory methods, as well as the introduction of new procedures for the settlement of tax disputes.

ПОЗАСУДОВІ ФОРМИ ЗАХИСТУ ІНФОРМАЦІЙНИХ ПРАВ ПРИВАТНИХ ОСІБ ТА ОСНОВНІ НАПРЯМИ ЇХНЬОЇ АДАПТАЦІЇ ДО СТАНДАРТІВ ЄВРОПЕЙСЬКОГО СОЮЗУ

The article examines the methods and procedures for the protection of the information rights of individuals by the Ukrainian Parliament Commissioner for Human Rights, and by the executive and local authorities; identifies prospects for expanding alternative information disputes resolution involving citizens and legal entities based on the implementation of the European Union standards in the scope of legal regulation. The aim of this article is to conduct research about the features of non-judicial forms of protection of information rights of individuals, to identify the prospects of introducing an independent supervisory authority in Ukraine in the field of access to public information and personal data protection as the main institutions of pre-trial settlement of information disputes. ~ 40 ~ ВІСНИК Київського національного університету імені Тараса Шевченка ISSN 1728-3817 During the preparation of the article, general scientific methods of cognition were used: dialectical, system-structural, formal-logical, as well as special methods, inter alia, historical, comparative-legal, sociological. At the present time, in Ukraine, this is proven that the main form of non-judicial protection of information rights of individuals is to lodge a complaint about the violation of the relevant category of rights to the Ukrainian Parliament Commissioner for Human Rights. At the same time, the reasons for the low efficiency of the implementation of such form of protection of information rights as filing a complaint to the head of the entity or the entity in the activities of which the violation was committed or to a higher authority or an official. The necessity of establishing an independent supervisory authority in Ukraine in the field of ensuring access to public information and protection of personal data is substantiated, taking into account the experience of the European Union member states as the main institution of pre-trial settlement of information disputes. The main world models of these bodies are described, their advantages and disadvantages are analyzed in view of the prospects of improving the mechanism of alternative resolution of information disputes related to the protection of information rights of individuals. The conclusions set out the main provisions of the research, formulate further directions of research on the implementation of non-judicial forms of protection of information rights of individuals, outline vectors of implementation of the European Union's experience in establishing national supervisory authorities in this scope.

Optimism and pessimism in bargaining and contests

This paper uses the rank-dependent expected utility (RDEU) model to capture the effects of optimism and pessimism on the choice between a pre-trial settlement and a trial (or more generally, between a private settlement and a litigation). These two legal procedures are described as a bargaining game and a contest game, respectively. My models predict that a contest occurs if the aggregate optimism premium in a contest (AOPC) is sufficiently high. I also find that the AOPC tends to be higher for close cases. Such predictions are consistent with the Priest-Klein empirical observation that a plaintiff's winning probability is often near 50% in many areas of civil litigation. I also show that the highest levels of effort in both a bargaining game and a contest game are exerted when one is moderately optimistic. However, excessive optimism will reduce one's effort level, and hence, one's winning rate. As a result, when faced with an excessively optimistic party, a risk-neutral party may prefer a contest over bargaining.

Ways of development of pre-trial settlement of tax disputes in Uzbekistan with a glance at international experience

Ways of development of pre-trial settlement of tax disputes in Uzbekistan with a glance at international experience

HISTORIOGRAPHY OF THE LAW INSTITUTE OF ALTERNATIVE DISPUTE RESOLUTION IN ADMINISTRATIVE JUDICIARY

The relevance of the article is that in administrative law the legal institution is usually referred to as a kind of alternative dispute resolution, which under certain conditions is able to overcome or reduce the negative and help restore their rights. By its nature, this institution is designed on the basis of law and consensus of the parties to promptly resolve the issue on the merits and save heterogeneous resources. The consequences of this are several positive aspects, including, for example, the unloading of the judiciary, as well as a positive impact on public opinion or positive ratings of Ukraine in the world. The leading role in increasing the effectiveness of the legal institution of dispute resolution with the participation of a judge is played by its scientific basis, part of which is historiography. After all, it is well known that the neglect of the study of the genesis of thoughts is a manifestation of errors and one-sidedness, which can lead to undesirable consequences of varying severity. The purpose of the article is to provide a description of the historiography of the legal institution of alternative dispute resolution in administrative proceedings on the basis of dissertation research on dispute resolution with the participation of a judge. The article describes the historiography of the Ukrainian administrative and legal institute of alternative dispute resolution in court proceedings. The author focuses on the issue of dispute resolution with the participation of a judge at the present stage of development of scientific and legal thought. It is concluded that the issue of alternative, mediation or pre-trial settlement / resolution of disputes in the domestic legal literature remains controversial. In the past five years, a new impetus for the development of the historiography of the legal institution of alternative dispute resolution in administrative proceedings has been the problems of Ukrainian society related to unresolved judges and reasonable deadlines initiated by democratic European institutions. In Ukraine, along with its own practice, an urgent and popular transition has begun from the search for an effective model of dispute resolution to the study of empirics of dispute resolution, which is characterized by pronounced legal nihilism in part of its territory.

Mediation procedure in Ukrainian realities

In the modern world, the mechanisms of self-regulation become especially important, when the subjects of public relations have the opportunity to independently establish rules of conduct and monitor their observance. The growth of activity and responsibility of participants in civil turnover allows the state to delegate part of its powers in certain areas to civil society institutions. Reconciliation of the parties is one such institution. Today in Ukraine, court proceedings and other jurisdictional mechanisms for reviewing and resolving disputes are the main ways to protect violated rights, freedoms and legitimate interests. However, there is no denying that in today's conditions of formation and dynamic development of civil society, they are often not effective enough. Participants in disputed legal relations are becoming increasingly interested in selfsettlement of disputes arising between them. One of the alternative methods of conflict resolution is mediation. Mediation, as an effective method of pre-trial settlement of disputes, is recognized by the European Community, which recommends its introduction as the main method of alternative dispute resolution at the pre-trial stage and during court proceedings. Mediation procedure, as an effective method of pre-trial settlement of disputes, is relevant for almost all types of legal relations, but unfortunately is not always used, due to the fact that for a long time there was no relevant legislation that could clearly and effectively to settle relations in the field of mediation. On July 15, 2020, the draft Law on Mediation was adopted in the first reading. will provide an opportunity to unload the judiciary and provide a mechanism for the implementation of protection of fundamental human and civil rights and freedoms in our country, as in a modern European state. The scientific work determines the correct use of the mediation procedure and its implementation to today's Ukrainian realities.

Administrative Appeal as an Out-Of-Court Procedure for the Protection of the Rights of Individuals and Legal Entities

In administrative law, there are two major ways of contesting allegedly unlawful decisions/acts: the administrative appeal and the judicial review (court action). While the administrative appeal is an attempt to solve the dispute at administrative level, the judicial review is an adversarial proceeding by which an individual transfers the conflict with a public authority to the (administrative) courts. In principle, the administrative appeal and the judicial review are independent, and the rules for their exercise normally do not interfere with one another. One of the forms of legal protection of a person in relations with public administration authorities is the institution of administrative appeal, the purpose of which is to fully and timely prevent and eliminate any violations of law and discipline in the activities of public authority. It ensures the active and proactive participation of citizens in the protection of their rights in administrative manner. The right to administrative appeal of decisions, actions or inactivity of authority directly to them or to administrative bodies, which are higher in the system of hierarchical subordination, is an important and necessary mechanism for pre-trial settlement of a dispute between a citizen and the relevant authority. The resolution of such disputes within the framework of administrative appeal provides an opportunity for business entities, individual citizens to protect their interests, identify shortcomings in the work of public authorities and promptly eliminate them, save time and effort, bypassing the judicial form of protection.

The Problems Of Realization of Right to Participate in Decision-Making in Environmental Matters

The right of citizens to participate in decision-making in environmental matters is provided by many international acts: the Rio Declaration on Environment and Development, the Aarhus Convention, the EU Directives (Directive 2001/42/EC, Directive 2003/35/EC, and Directive 2011/92/EU). A group of rights aimed at the realization of this general right are also defined in national legislation, in particular, in the Law of Ukraine “On Environmental Protection”. To comply with requirements of Annex XXX (Environment) of the Ukraine-European Union Association Agreement, there were adopted the laws of Ukraine “On environmental impact assessment” (hereinafter – the EIA Act) and “On strategic environmental assessment” (hereinafter – the SEA Act). It has led to the formation of new mechanisms of interaction between the public, business entities and authorities. However, in spite of certain achievements in ensuring the implementation of the right to participate in decision-making in environmental matters, there are a number of problems in its application in practice. They are the next: the different understanding of the concept of “public” both within national legislation and in comparison with international law; the imperfect mechanism of preventing the ignorance of the public’s position. There is no legal regulation of the ways of pre-trial settlement of the dispute, in particular, through mediation. The organization and conduction of public discussion of plans, development strategies and specific planned activities requires an improvement. The article analyzes the peculiarities of realization of the right to participate in decision-making in environmental matters, reveals the shortcomings of the current legislation, suggests ways to eliminate them.

Pretrial settlement and coercion: An experiment

Pretrial settlements attempts can be either freely chosen by litigating parties or imposed to them, notably by law or by a judge, which renders the settlement stage mandatory in the latter case, as in mandatory mediation procedures. In a lab experiment, we first analyze the determinants of the litigants’ willingness to bargain. Then we investigate the impact of a bargaining obligation on the litigants’ behavior during the negotiation, by varying both the probability that the constraint is enforced and payoff asymmetry between parties. We show that the willingness to bargain depends on one's relative advantage in terms of expected judgment levels (after or instead of a pretrial settlement attempt), on gender and on the probability of being effectively constrained. We also highlight that players who are forced to bargain are more inclined to concessions within the negotiation than the pairs which freely bargain. Finally, we show that forced bargaining leads to more egalitarian agreements. Our results may have important implications in terms of public policy regarding mandatory mediation.

Обязательное досудебное урегулирование спора как правовое средство оптимизации судебной нагрузки

Обязательное досудебное урегулирование спора как правовое средство оптимизации судебной нагрузки

TO THE QUESTION ON PRE-CASE SETTLEMENT OF ECONOMIC DISPUTES

The article identifies the nature of pre-trial settlement of an economic dispute, analyzes the features of the pretrial settlement of an economic dispute. Taking into account the provisions of the current Commercial Code and the Commercial Procedure Code of Ukraine, the article examines the procedure for pre-judicial settlement of the economic dispute, including the analysis of the rules of economic law and commercial procedural law, which regulate the general procedure for pre-trial settlement of economic disputes. It is determined that pre-trial settlement of economic disputes is an independent legal institution, the rules of which are contained in both procedural and material sources of law of different legal force. Specified that pre-trial settlement of economic disputes is a set of actions defined by law and/or contract, On the basis of the conducted analysis, it is concluded that it is advisable to include in the Commercial Code a separate Chapter “Pre-trial settlement of economic disputes”, in which to determine the forms of pre-trial settlement (negotiations, claim procedure, mediation), the procedure for their application. The necessity to align the requirements of procedural and substantive norms in cases of obligatory application of pre-trial settlement of economic disputes was noted. The imperative prescription regarding the obligation to apply pre-trial settlement of economic disputes is contained in Art. 29, 30 of the International Rail Freight Agreement. In a number of other legal acts, the application of pre-trial dispute settlement is dispositive. Based on case law and business research, it is proposed to provide for the obligation of pre-trial settlement for transportation contracts, telecommunication services contracts, public procurement contracts. Keywords: pre-trial settlement, legal institute, economic dispute, parties to the economic dispute, claim, consequences of the pre-judicial settlement of the economic dispute.

Pre-Trial Settlement of Administrative Disputes in Lithuania: General Legal Characteristics

[only abstract in English; full article, abstract in Lithuanian]
 In Lithuania the extrajudicial settlement of administrative disputes is regulated by the main general laws, particularly, the Law on Administrative Proceedings, the Law on Public Administration and the Law of Administrative Dispute Commissions, which regulates the functioning of Lithuanian Administrative Disputes Commission as the quasi-court, having general competence of pre-trial administrative dispute resolution. Yet there are many special laws, which set different notions and norms of extrajudicial settlement of administrative disputes in separate fields of administrative law.
 In previous article having examined the substance and scientific insights on legal values, which relate to the pre-trial administrative dispute resolution, now the author continuously investigates the common normative legal background in the regulation of the pre-trial resolution of administrative disputes. This research is aimed at answering the main question, whether the norms of basic laws are sufficient to the formation of unanimous conception of institutional and functional system of pre-trial resolution of administrative disputes. Therefore, the article concentrates on the provisions of general legal regulation, which embed legal categories and criteria on the very description of the pre-trial administrative dispute resolution, and determine its position in the legal system, discerning from common administrative procedures. Also the author discusses the lack of common set and framework in this general regulation of the substantive procedural guaranties which ought to be adhered to the pre-trial dispute resolution, and finally – the effect of these general legal norms by vastly conferring the lawmaking and formation of the most legal characteristics of it to the same administrative authorities, having executive discretionary power.
 The author comes to conclusions, that in the provisions of general laws the legal category of the pre-trial administrative dispute resolution is described especially concisely, providing it should be established by the law. The legal description of administrative procedure autonomically is provided and regulated by the Law on Public Administration. But neither the Law on Administrative Proceedings, nor the Law on Administrative Dispute Commissions do give further qualitative criteria on the systematic establishment of the whole institutional and functional system of this kind of dispute resolution, clearly distinguishing it from common administrative procedures. This general regulation environment so far is not being elaborated in order to consolidate its legal provisions. Except the significant changes in the administrative dispute commissions regulation, broadening the provisions of the relevant law so that they now encompass the substantial material and procedural requisites and rules for its real functioning as the quasi-court, yet no respective essential alterations to regulatory arrangements of the pre-trial administrative dispute resolution in other institutions and the whole system have been made and are not expected in the near future. As the aspects of the possible independence and the level of judicial standards, transferable to the latter system still being not properly scientifically investigated, consequently this question is not raised in the initiatives of law making process. By the provisions of the discussed general legislation the established system of pre-trial administrative dispute resolution in administrative dispute commissions and other institutions in formal institutional and functional aspects is collateral. Yet general legislation does not ensure that in the use of essential material and procedural guaranties of the defense of persons’ rights the asymmetrical effect is avoided: the mentioned commissions are facultative institutions, whereas the regulation of the level and set of the material and procedural guaranties in special institutions (including compulsory ones), having a legal priority to the commissions, is vastly conferred to the specific laws of the particular area of public administration, relying the designing of the specific administrative dispute resolution on the legislative and administrative discretion. Using the latter, the administrative institutions can become not only the judge in its own case, but even “build the whole court”. Overall this does not sufficiently correspond with the nature and aims of the pre-trial resolution of administrative disputes, and constitutes an obstacle to systematize its legal regulation.

ПІДСТАВИ ВІДКРИТТЯ ПРОВАДЖЕННЯ У СПРАВІ ПРО НЕПЛАТОСПРОМОЖНІСТЬ ФІЗИЧНОЇ ОСОБИ ЗА ЗАКОНОДАВСТВОМ УКРАЇНИ І НІМЕЧЧИНИ

The article examines the grounds for initiating individual insolvency proceedings, which are regulated by Ukrainian and German law, as well as current positions of judicial practice in this area. Proposals are made to improve the provisions of the Bankruptcy Code of Ukraine and the Law of Ukraine «On Judicial Fees», which will have a positive impact on the legal regulation of insolvency of individuals and law enforcement practice in this area. It is established that in Ukraine the legislator uses not only the principle of insolvency or threat of insolvency to open an insolvency of a citizen, as is the case with a legal entity, but also payment inability. The author notes that using the principle of insolvency, the Ukrainian legislator in one case indicates the minimum amount of debt, and in another sets only the terms of suspension of payments and the minimum percentage of arrears, and in determining the threat of insolvency and payment inability does not provide any quantitative and qualitative characteristics. It is suggested that debtors must have the property in necessary amount to cover court costs when initiating insolvency proceedings. It is proposed to establish a court fee for filing an application for insolvency proceedings, differentiating its size depending on whether the individual debtor has the status of an individual-entrepreneur. It is noted that under German law, the procedure of insolvency of individuals may be opened at the request of both the debtor and the creditor. It is established that the opening of individual insolvency proceedings in Germany is possible only if there are additional grounds, such as: unsuccessful attempt of pre-trial settlement of debt within six months before the filing of the application for initiation of proceedings; availability of a certificate issued by a special entity and certifying a failed attempt of a pre-trial settlement; submission of an application for discharge from residual debt or an application for refusal of such discharge.

Settlement with Second-Order Uncertainty

The literature on pretrial dispute settlement has studied the effect of first-order uncertainty on pre-trial settlement bargaining while assuming away any uncertainty about higher-order beliefs. We propose a settlement bargaining model in which one player receives a private and noisy signal of another player's private type, thereby generating second-order uncertainty. We find that a private signal improves the efficiency of settlement bargaining. However, if the noisy signal of types is publicly observable, thereby eliminating the second-order uncertainty, the informational value associated with the signal of types completely disappears.

Implications of Case Management and Active Adjudication for Judicial Disqualification

The judicial role of Canadian judges is changing to allow judges to make trials fairer, more accessible, and more efficient. Along with the changing role of judges has come new tools, including pretrial settlement and case management conferences, and even active adjudication during the course of the trial. However, this new role and the use of its associated tools have the potential to raise an apprehension of bias. This article focuses on recent case law and commentary addressing case management and active adjudication by judges, with the aim of clarifying the boundary between permissible judicial intervention that fosters fairness and efficiency, and impermissible interventions that raise an apprehension of bias. Additionally, we discuss the role counsel can play in helping to avoid concerns of bias from arising.

Toward a Theory of Motion Practice and Settlement

A model studies the relationship between pretrial dispositive motions, settlement, and discovery. The trial court, defendant, and plaintiff start uncertain about what the jury might think of the defendant's carelessness. The plaintiff is optimistic about her prospects at trial. The degree of optimism is private information. Discovery yields partial information that allows the parties to update their assessment of what the jury might decide if granted the opportunity (i.e., if the case does not settle). We find that settlement offers increase following the denial of the defendant's motion for summary judgment. We also study the impact of increasing the threshold of plausibility the plaintiff's complaint needs to survive the defendant's motion to dismiss.

The Legal Nature of Pre-Trial Settlement of a Dispute, or One More Controversial Issue of The Theory of Civil Procedure

Compliance with the pre-trial procedure envisaged for the settlement of the dispute has traditionally been considered in the procedural literature as one of specific preconditions for the right to sue. However, after the Civil Procedural Code of the RF was adopted in 2002, it is considered by many scholars specialising in procedural issues as one of the conditions that constitute the procedure of bringing an action. The prerequisite of this was the distinction in the aforementioned Code drawn between the refusal to accept a claim and return of a claim as two types of judge's refusal to accept a claim. As the first ground to return the claim includes failure to comply with the pretrial procedure applied for the settlement of the dispute, the compliance with the procedure was associated with the right to sue. However, the paper focuses on the fact that the definition of the judge's refusal to accept the case for consideration in the CPC of the RF 2002 is associated not with the law-maker's views concerning the legal nature of the circumstances that served as grounds for refusing to accept the case and returning it, but with an intent to improve the legislation aimed at facilitating the procedure of determining the cases where, after a judge's refusal to accept an action, it is either impossible or possible to bring the same claim before the court.