Dispute Resolution Procedures Research Articles

Politics Legal Regulation of the Supreme Court of the Republic of Indonesia (Perma Ri) Number 2 of 2019 as a Guideline for Suits for Unlawful Acts Against Government Agencies And/Or Officials

The Supreme Court has issued PERMA No. 2 of 2019 concerning Guidelines for Settlement of Disputes on Government Actions and the Authority to Adjudicate Unlawful Acts by Government Agencies and/or Officials (Onrechmatige Overheidsdaad), with the aim of being a guideline in terms of the authority to adjudicate onrechtmatige overheidsdaad cases, as well as as statutory provisions and regulations in terms of governance method of resolving disputes regarding unlawful acts committed by government agencies or government officials, which has now become the absolute authority of the State Administrative Court (PERATUN). Regarding Legal Politics, the issuance of PERMA No. 2 of 2019 is important to study and research, because it has created a new "legal situation" and "legal consequences", namely regarding the authority to adjudicate overheidsdaad cases that are onrechtmatige, as well as regarding legal provisions regarding dispute resolution procedures against the government. From this research it can be concluded that with the enactment of PERMA Regulation No. 2 of 2019, cases of unlawful acts by government agencies and/or officials, which previously fell under the authority of the general judiciary to be examined and tried in the District Court, but are now expressly regulated. Becomes the authority of PERATUN and is tried at the State Administrative Court, so its implementation actually still requires improvements, so that in the future it can be implemented even better.

The legal policy in fostering the use of alternative dispute resolution procedures

The complications of social relations contribute to the growth of the number of disputes that result from conflict situations. In these conditions, the role of the state’s legal policy, aimed at stimulating the participants of social relations to choose economical, efficient, and prompt methods of conflict resolution, is significantly increasing. Improving the quality of dispute resolution directly correlates with a drop in the number of cases pending before a judge. This is achievable only through the development of the mechanisms of pre-trial dispute resolution and conciliation procedures. This paper aims to study legal issues and perspectives on the development of alternative dispute resolution based on the analysis of the legal policy of the Russian Federation. To achieve the mentioned goal, comparative legal analysis, a systemic approach, and formal-juridical methods were used to show the current developments of the legal policy of the Russian Federation in the sphere of stimulating and incentivizing alternative dispute resolution. Authors concluded that, unlike the domestic legal order, in foreign states, there is not only a formed normative basis for the procedures of alternative dispute resolution but also political acts of stimulating tone, designed to actively involved in these procedures more and more participants of social relations in a state of conflict. It has been established that the legal policy on introducing alternative dispute resolution procedures in foreign legal orders is characterized by a shifted emphasis on family law.

Current issues of labour dispute resolution through mediation

The article presents a comprehensive theoretical and legal study of mediation as an alternative procedure for resolving labor disputes. The author proves that the urgent issue of labor law science is to make specific proposals for the development of a systematic and consistent legislative framework for the use of labor mediation in resolving labor disputes. The author draws attention to the fact that current legislation makes situational references to this concept in certain articles without disclosing its content, which leads to law enforcement problems. Thus, the Law of Ukraine "On Mediation” supplemented the current Labor Code of Ukraine with a new Article 221-1 "Settlement of Labor Disputes through Mediation”. It is emphasized that the inclusion of the new provision in Chapter XV "Individual Labor Disputes” of the Labor Code of Ukraine indicates that the legislator has limited the mediation procedure to the settlement of individual labor disputes. The author emphasizes that failure to comply with the principle of legal certainty as a component of the rule of law principle enshrined in Article 8 of the Constitution of Ukraine impedes the proper protection of labor rights. The author argues that the national legislator incorrectly applies the concept of "labor dispute” by defining mediation as an alternative way of its resolution, since in fact a "labor dispute” arises at the time of applying to the bodies which consider them. Mediation does not resolve a labor dispute, but rather disagreements between the parties to labor relations at the stage of voluntary settlement of such disagreements, which is more appropriately called a "labor conflict”. The author denies the legislator's position that the mediation procedure is applicable only to individual labor disputes. Attention is drawn to the need to extend such an institution to collective labor disputes. The author argues that it is necessary to eliminate regulatory uncertainty regarding the terminology of the concept of "mediation" and to harmonize the provisions of the Law of Ukraine "On Mediation" and current labor legislation. The existence of stable and clear legislation on mediation is an embodiment of the rule of law and will contribute to the formation of public confidence in alternative out-of-court dispute resolution procedures.

Innovation Helps with Sustainable Business, Law, and Digital Technologies: Economic Development and Dispute Resolution

This paper discusses the dispute resolution procedure that innovative digital commerce has adopted for the future for sustainable business. As digital trade becomes increasingly important for economic growth, trade-related disputes must be settled in both business and consumer situations. This study examines the advantages of using digital technology to resolve disputes involving digital trade and discusses how digital technology is changing traditional dispute resolution procedures. Conventional trade disputes differ from their digital counterparts because the digital sphere gives rise to more complex trade conflicts that require stronger regulatory resources. The utilization of digital technologies such as blockchain, artificial intelligence, innovation-based models, digital strategies, and others can enhance the efficacy of conflict resolution. Digital technology can assist in resolving disputes with digital trade, even though procedural fairness issues including prejudice and algorithmic opacity may also arise. The research highlights the importance of developing innovative techniques to set up trade dispute resolution procedures and building legal frameworks for jurisdiction, trial, and enforcement procedures in addition to stressing the usage of digital technology.

THE SIGNIFICANCE OF THE LAW ON AMICABLE RESOLUTION OF LABOR DISPUTES AND THE REVIEW OF THE PRACTICE THUS FAR

During the work process, numerous instances of dispute regarding the positions of the employees, or the interpersonal relations between them or between them and their employer may arise. In addition to the traditional judicial method of labor dispute resolution, it is necessary to develop independent and impartial negotiation mechanisms between the parties in the area of individual and collective labor disputes. In Serbia, these are certainly the arbitration settlement of individual and collective labor disputes, and conciliation as a method of resolving collective labor disputes within and through the Republic Agency for Peaceful Settlement of Labor Disputes. There are many benefits to peaceful labor dispute settlement. The goal of supplementary procedures, i.e. procedures for peaceful labor dispute resolution, is to relieve the traditional judicial approach and direct it to the procedures where a judicial settlement of the dispute is truly necessary. Besides the concept, advantages and characteristics of the amicable labor dispute settlement procedures, certain types of these procedures such as mediation, conciliation and arbitration are also analyzed in the theoretical section of this paper, as well as the most important provisions of the Employment Act and the Law on Amicable Resolution of Labor Disputes. In the research section of this paper, the practice of the Republic Agency for Peaceful Settlement of Labor Disputes in the procedures of amicable labor dispute settlement, both for the territory of the Republic of Serbia and the territory of the City of Novi Sad, is analyzed. The primary research data source was the official data of the Republic Agency for Peaceful Settlement of Labor Disputes. The paper is methodologically based on a theoretical analysis of relevant contemporary theoretical views, a normative analysis of legislative sources, and a quantitative analysis of statistical indicators in the domain of the research subject.

New Trends of Digital Justice: The Online Mediation—Between a Challenge and a Reality (The Portuguese Legal Framework)

The Directive 2008/52/EU of the European Parliament and Council of 21 May 2008, regarding certain aspects of mediation in civil and commercial matters, does not seem to have been designed for online mediation since it does not expressly include rules in this regard, though it does not prohibit it either. The Portuguese legislator, through Law 29/2013, of 19 April 2013 regulated mediation in an autonomous and systematic way in Portugal, covering internal and cross-border conflicts, and went beyond the EU requirements prescribed by the 2008 Directive, which only specified regulation to cross-border conflict mediation. Like the EU Directive, the Portuguese law does not explicitly address online mediation, but it neither prohibits nor excludes its application. In this article, we intend to present and conceptualize online mediation within the scope of Online Dispute Resolution (ODR) procedures. We will present the specific features and principles of online mediation, thus enhancing the main challenges and potentialities of its use as an adequate means of resolving conflicts.

Mediation in the administrative process

The article is devoted to the issues of the peculiarities of mediation in the administrative process of Ukraine as a kind of alternative methods of conflict resolution, which needs improvement and development, taking into account international norms and national needs.
 It was found that in the process of reforming the judicial and law enforcement system, the issue of simplified dispute resolution procedures became relevant, in particular, we are talking about alternative methods (mediation, negotiations, etc.). This approach will make it possible to relieve the courts, speed up the resolution of disputes and help maintain friendly relations between the parties participating in the mediation process.
 It was emphasized that in Ukraine there are a number of cases in administrative proceedings that can be resolved in an alternative way. Alternative means of resolving administrative disputes will allow dynamic resolution of conflicts, in particular those related to traffic accidents, offenses in the field of labor protection and others, the settlement of which is possible under the legislation of Ukraine through the mediation procedure.
 It is noted that the Law of Ukraine "On Mediation” is in effect in Ukraine, the norms of which determine the peculiarities of mediation in civil, economic, administrative proceedings, in the field of notarial activity, modify social relations and require the use of special techniques, methods and methods of regulating mediation relations in legal processes.
 Attention is focused on the fact that for mediation in the administrative process it is important to observe the norms of ethical behavior, in particular, the mediator's code of ethics. In Ukraine today, the unified rules of ethical behavior of the mediator and participants in the mediation process are not legislated. Such rules are adopted by public associations based on the European Code of Conduct for Mediators.
 In administrative and legal practice, the experience of mediation is new, but, as practice shows, it is promising and in demand. The mediation procedure will help resolve the dispute positively for all parties, saving time and money as much as possible, and will also help the parties remain on good terms with each other.

Principle of Good Faith in Peace Agreements via Mediation

Many people have selected mediation as a dispute resolution procedure to get the best agreement and solution. However, it is not uncommon for parties to fail to consistently implement an agreement reached through mediation. The purpose of this article is to examine the essence of peace agreements reached through mediation, as well as the importance of the principle of good faith as a form of protection for the parties involved in such agreements. This is normative research that takes both a statutory and conceptual approach. The exploration of data in the form of primary and secondary legal materials was carried out through a literature review and descriptive-qualitative analysis. The analytical results reveal that the mediation process, which concludes with a peace agreement, represents the end of a dispute based on the ideals of benefit and justice. On that premise, its execution must be based on the principle of good faith to provide legal protection to the parties, whether mediation takes place in or out of court. Good faith in implementing a peace agreement is interpreted as an attitude that develops within the parties in dispute to carry out their commitments as a moral obligation to obey and accomplish things that have been agreed upon voluntarily.

Driving factors behind farmers’ preferences for choosing Xinfang system as land dispute settlement body

This study offers a focused examination on Xinfang system, China’s unique mechanism particularly on its ability and efficacy in mediating land disputes between farmers and governmental bodies for social governance purposes. Based on interviews with 10 farmers, the study elucidates the system has low entry barriers and user-friendly, thus fast becoming the preferred system option when dealing with land conflicts. Xinfang facilitates direct communication between farmers and government officials, thereby in line with the sociocultural conventions of the rural populace. The study also highlights several constraints. While the Xinfang system employs a multifaceted approach to conflict resolution, including negotiation and grassroots governmental intervention, it lacks legislative power and institutional authority that are required for effective management of more complex or multi-stakeholder land disputes. The study advocates for a comprehensive reassessment and subsequent reform of the Xinfang system, focusing particularly on its mechanisms and procedures for dispute resolution. Such reforms are not merely instrumental for the more robust safeguarding of farmers’ land rights, but also for enhancing the overall integrity and public trust in China’s legal and administrative frameworks.

Murabaha Contract Dispute Resolution Procedure

This study is to analyze the pattern of dispute resolution in Murabahah contracts in Islamic banking. The results show that there are several commonly used dispute resolution patterns, including negotiation, mediation, and arbitration. Factors that influence the outcome of dispute resolution include trust, communication and fairness. This research provides an in-depth understanding of dispute resolution patterns in Murabahah contracts and can be a reference for Islamic banks in resolving disputes that arise. The purpose of this study is to identify and analyze the pattern of dispute resolution in Murabahah contracts in Islamic banking. This study also aims to understand the factors that influence the results of dispute resolution and provide recommendations for Islamic banking in overcoming disputes that arise. The problem to be answered in this research is how the pattern of dispute resolution in the Murabahah contract in Islamic banking. This research uses a descriptive qualitative method with an interpretative approach. Data were obtained through literature studies and document analysis related to dispute resolution in Murabahah contracts. The interpretative approach is used to understand and analyze the pattern of dispute resolution in depth, as well as the factors that influence the outcome of dispute resolution. Based on the analysis, it can be concluded that the pattern of dispute resolution in Murabahah contracts in Islamic banking includes negotiation, mediation, arbitration, and reconciliation. Factors such as trust, communication, fairness, and understanding of sharia principles influence the outcome of dispute resolution.

REALIZATION AND PROTECTION OF THE RIGHTS OF SUBJECTS OF ECONOMIC RELAT ONS AS A COMPONENT OF A COMFORTABLE REGULATORY ENVIRONMENT OF THE DIGITAL ECONOMY

The purpose of the study. The article examines the issues of improving the quality of the regulatory environment of the digital economy from the perspective of the implementation and protection of the rights of subjects of economic relations. The article analyzes the interdependence between digitalization and legal processes, which generates both new legal and technological opportunities, as well as related problems and barriers that complicate the exercise and protection of the rights and interests of subjects in a digital environment and pose challenges to legal science to overcome them. The purpose of the study is to identify legal structures and legal means that contribute to the elimination of obstacles and the creation of a comfortable regulatory environment for the digital economy. Conclusions. The author, as a result of the analysis of legal approaches and structures peculiar to digital turnover, comes to the conclusion that a reliable and comfortable legal environment for online interaction is a legal «space of trust», including the responsibility of its participants for the adverse consequences that may occur if they fail to fulfill their duties related to such interaction. Among the components of a comfortable regulatory environment of the digital economy, a special place is occupied by: digital (online) dispute resolution procedures, including the use of automated solutions using smart contracts, digital platforms in the field of protecting the rights and legitimate interests of subjects of economic relations; the use of high technologies in notarial activities. The author draws attention to one of the most acute problems of the digital age-the growing digital divide, the overcoming of which is directly related to improving the quality of the regulatory environment of the digital economy.

Philosophical Foundations of the Transformation of the Judicial Method of Rights Protection in the Context of the Creation of a Unified Information Space of the EEU

The article is devoted to the study of the dispute resolution procedure by the EAEU Court in the context of creating a single information space of the member countries of this integration association. Within the framework of the theoretical and practical orientation of this study, special attention is paid to conceptual problems related to the description of key social and digital phenomena that arise in the process of implementing the digital agenda and its impact on the judicial method of protecting the rights and legitimate interests of citizens and business entities. The transition to digital or electronic justice will increase the efficiency of the EAEU Court and create the most attractive conditions for the parties to the dispute to protect their rights and legitimate interests. Digitalization provides for large-scale changes in the field of justice, the emergence of new means of proof, the introduction of an electronic form of cases, remote court sessions all this leads to a change in the fundamental principles of legal proceedings. The solution to this problem should begin with the creation of a comprehensive program of legislative changes to the judicial method of protecting rights related to their digital transformation within the EAEU.

Tanggung Jawab Nakhoda KM Sabuk Nusantara 62 Atas Kerusakan Terumbu Karang di Pulau Mius Mangara Kabupaten Raja Ampat

This research was conducted to know and analyze related to the captain's responsibility for the sinking of KM Belt Nusantara 62 and the settlement of coral reefs/compensation from the perspective of the Minister of Marine Affairs and Fisheries Regulation Number 28 of 2020 concerning Procedures for Dispute Resolution in the Management of Coastal Areas and Small Islands. This study also uses qualitative research methods with a normative approach where researchers conduct case studies (Case Research), data obtained by researchers related to events through shipping court decisions number: HK.212/05/IV/MP.2022 regarding KM ship accidents. Nusantara Belt 62 in the waters west of Yefmi island and the waters of Gag island in Raja Ampat. Based on data exposure and analysis, the results of the study can be concluded as follows, namely: 1) There are 3 forms of accountability of the Nahkoda KM Belt Nusantara for damage to coral reefs and 2) based on the Regulation of the Minister of Marine Affairs and Fisheries Number 28 of 2020 concerning Procedures for Dispute Resolution in the Management of Coastal Areas and Small Islands, compensation for KM Belt Nusantara 62 can be made through litigation (court) and non-litigation (outside the court).

Authority and Dynamics of Compliance to Resolve Sharia Digital Finance Disputes in Indonesia

This article focuses on analyzing the urgency of authorities in adapting technology to modern financial services. Conventional financial institutions (existing institutions) are entering a new era, where all financial transaction activities are connected to technology. The development of digital financial services such as electronic money (digital payments) and digital funds (crowdfunding) creates very fierce competition in today's modern financial services industry. The main problem that arises in the adaptation of information technology in financial services is legal certainty and protection for parties involved in digital financial transactions. This research analyzes the development trend of digital financial services in Indonesia. In addition, this study shows the efforts made by regulators in anticipating legal problems. Views on Islamic digital financial dispute resolution approaches and procedures are also the focus of discussion in this article. The method used in this study is literature research. This research uses an exploratory normative legal approach. Data collection techniques are carried out by observing, reviewing, and analyzing textual information which is then adapted as the main data in the discussion of this research topic. Data was collected from a literature review in the form of library materials or secondary data related to digital finance. This research produced several findings, namely: 1) the urgency of the authority in controlling the implementation of Islamic digital finance by presenting special regulations to minimize disputes between the parties. 2) Sharia digital financial platforms are ensured to have maximum Sharia compliance tools through Sharia compliance audits under the control of the authority.

Legal Challenges in the Development of Information and Communication Technology SMEs in Jabodetabek Region, Indonesia

The Jabodetabek region of Indonesia has had notable growth in the Information and Communication Technology (ICT) sector, primarily due to the efforts of Small and Medium-sized Enterprises (SMEs). SMEs encounter a complex network of legal obstacles that impede their growth and ability to compete. Using a mixed-methods approach that includes both quantitative surveys and qualitative interviews, this study explores these issues. The findings draw attention to important legal difficulties, such as limited access to legal services, contract conflicts, cybersecurity concerns, intellectual property issues, and regulatory compliance. The competitiveness and development of SMEs are significantly impacted by these issues. Comprehensive legal and legislative changes are advised to address these problems. These include simplified rules, strict enforcement of intellectual property rights, effective dispute resolution procedures, cybersecurity assistance, and improved access to legal services. This study highlights the significance of a supportive legal framework for innovation and economic growth, adding to our understanding of the legal aspects of ICT SME development in Jabodetabek.

Procedural Justice and the Design of Administrative Dispute Resolution Procedures

AbstractAre certain characteristics of dispute resolution procedures associated with higher levels of procedural justice? We address this question through a quantitative analysis of real-world experiences of 194 professional legal representatives with the objection procedures of 81 Dutch administrative authorities. In our analysis, two general procedural characteristics are taken into account: the involvement of an independent third party and the extent to which the procedure is focused on the conciliation of competing interests. The involvement of an independent third party was not associated with higher levels of procedural justice. Procedures that were perceived to be more focused on the conciliation of competing interests were evaluated as more procedurally just, even more so in disputes where the administrative authority was perceived to have a higher degree of discretion and in disputes that ended in a negative result for the litigant.

The role of traditional institutions in conflict resolution among Okija people

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

A Critical Evaluation of Environmental Dispute Resolution Mechanisms in Bangladesh: Addressing Challenges and Insights

Pollution is now the greatest dangerous threat to humanity. Nowadays, everyone scares pollution more than nuclear blasts. Human well-being and economic prosperity have made environmental conservation a critical global issue. Bangladesh is dealing with a number of environmental issues, including deforestation, land degradation, air pollution, water contamination, and biodiversity loss. In Part II (Fundamental Principles of State Policy) of the Bangladesh Constitution, Article 18A states, "The State shall strive to protect and develop the environment, as well as preserve and safeguard natural resources, biodiversity, wetlands, forests, and wild life for current and future inhabitants." However, Article 8(2) of the aforementioned Constitution stipulates that the fundamental principles outlined in Part II of the Constitution are not judicially enforceable. As a result, it is apparent that the Bangladesh Constitution does not contain any direct environmental protection. Furthermore, Bangladesh's constitution does not recognize the right to a healthy environment as a fundamental right. In Bangladesh, the environment doesn't at all promote healthy living. Severe air, water, and noise pollution endangers human health, ecosystems, and Bangladesh's economic progress. Population growth, the usage of fossil fuels, industrialization, and motorized vehicles all contribute to air pollution. Water contamination is the result of industrialization. The Government of Bangladesh has adopted various laws pertaining to environmental issues, such as the Environment Court Act, 2010, the Bangladesh Environment Conservation Act, 1995, the National River Protection Commission Act, 2013, the Bangladesh Water Act, 2013, etc. Despite the adoption of several laws and regulations, environmental pollution in the country persisted. This paper is qualitative in nature. The main purpose of this paper is to deliver a brief outline of the current legal regime dealing to the environment, as well as to identify environmental dispute resolution procedures within Bangladesh's existing legal framework. It will also investigate into the legal hurdles to pursuing environmental justice. This study presents some observations on achieving access to environmental justice for all population groups in Bangladesh.

Indigenous Peoples in International Investment Law: Time for a New Dispute Resolution Procedure

Abstract This article examines the role of indigenous communities in international investment law. It concludes that indigenous communities have only limited agency in the context of investment law-making and adjudication. Such limitations continue the colonial legacy of international law. If international investment law aspires to achieve legitimacy, the departure from the exclusionary practices is necessary. In this context, the article recommends carving out the investment disputes that involve indigenous peoples and/or impact their livelihoods from the traditional model of investor-State dispute settlement. It further argues for reframing investment rules to account for indigenous laws and practices.

Informing about mediation as a power of executive bodies of local self-government

The article examines the problem of low awareness in Ukrainian society of the right to mediation as a social service. According to the author, this does not correspond to Ukraine’s aspirations to practically implement the procedures for alternative dispute resolution recommended by international organisations, including mediation.The author emphasises that today, it is crucial to work on informing the public about mediation as a social service within the framework of Ukraine’s social policy. The decentralisation processes have brought local governments closer to the population, which undoubtedly contributes to providing complete and reliable information about the opportunities to receive social services. Informing recipients of social services about mediation is a direct responsibility of local governments. Therefore, there is an urgent need for them to inform the population about social mediation effectively.It is noted that the Law of Ukraine «On Social Services» includes informing the population about social services, including mediation, in a form accessible to persons with any type of health disorder (Article 11, part 4) as a part of the powers of executive bodies of local self-government (as a subject of the social services system). This power correlates with the right of recipients of social services to receive from executive bodies of local self-government complete and comprehensive information on social services, including mediation, in a form accessible to persons with any type of health impairment (Article 12, paragraph 3, part 1). The author conditionally distinguishes three components of the powers of executive bodies of local self-government to inform about social services, including mediation (object of information, subjects of information, form of information) and reveals their content. The article examines the issue of parliamentary control over the observance of the right to information of recipients of social services, as well as liability for its violation.