Dispute Settlement Procedures Research Articles

تسوية المنازعات في القانون التجاري - على ضوء القانون رقم 95.17

Mechanisms for settling commercial disputes have become one of the manifestations of legal and economic thinking at world level, a desired tool for regulating and stimulating national and international trade, and an important and essential factor in increasing the flow of investment and alleviating the burden on the national judicial system, prompting the various countries - at the highest level - to attach great interest to this peaceful means. In this respect, the high speech of His Majesty King Mohammed VI on the occasion of the opening of the judicial year on 29 January 2003 in Agadir affirmed the following: ‘.... Thus, in accordance with Our firm desire to continue working to promote investment and in application of Our directives set out in the letter We sent to Our Prime Minister to this effect, we invite Our Government to continue its efforts to modernise the justice system, by rationalising work, simplifying procedures and ensuring the widespread use of information technology. It is also necessary to diversify the procedures for the consensual settlement of disputes that arise between partners in commercial transactions, by proceeding, with all due speed, to draw up a draft law on national and international commercial arbitration, which will enable our judicial system to meet the requirements of globalisation and economic competitiveness, and to help attract foreign investment’. In his speech on the occasion of the anniversary of the Revolution of the King and the People on 20 August 2009 in Tétouan, His Majesty added that: ‘...At the same time, alternative dispute resolution methods such as mediation, arbitration and conciliation should be developed, alternative sentences should be applied and local justice should be reviewed....’. Then the speech of 14 October 2022, which stated: ‘Today, we are banking on productive investment as an essential lever for reviving the national economy and anchoring Morocco in promising sectors’.

THE LEGAL CONCERNS OF THE SETTLEMENT DISPUTES BY THE COUNCIL ON THE INTERNATIONAL CIVIL AVIATION ORGANIZATION

Background: The International Civil Aviation Organization (ICAO) is a “Club” of sovereign States. ICAO is a specialised United Nations agency (UN) with 193 Member States. If a dispute between these States and the diplomatic channels does not find a mutual solution, disagreement arises; however, the ICAO Council has an essential function in settling disputes. This settlement procedure is structured under the Chicago Convention (1944), the Rules for the Settlement of Differences (1957) and the Rules of Procedure for the Council (1969). However, Member States do not welcome these provisions, demonstrated by the scarcity of dispute settlement procedures before the ICAO Council in the last 80 years. This article introduces these legal disputes and looks for justifications based on the nature of the cases. The Council is a unique permanent body within ICAO. Although ICAO in the former century became rather a political (diplomatic) body upon its foundation, that is why the absence of successfully concluded dispute resolutions is a legal viewpoint that is more than interesting. This research paper reveals examples of the lack of effectiveness of the ICAO Council’s dispute settlement, focusing on the nature of the State’s interests and the outcomes of the procedure, furthermore, the role in these disputes in front of the International Court of Justice (ICJ) or arbitration. Methods: This article focuses on understanding and analysing the historical context, international cooperation and diplomacy, and the regulatory landscape of dispute resolutions and settlements. The search was based on databases, academic journals, and official publications from aviation authorities and organisations such as ICAO. The research utilised qualitative and quantitative methods based on empirical observations and examinations (document analysis and case studies). Results and conclusions: The ICAO Council has rule-making, judicial and administrative functions. It is a quasi-judicial body, and its President has the authority to settle disputes among the contracting States. However, if we look at the history, in the last 80 years, only 10 cases were handled by the ICAO Council. The main reason for the lack of ICAO Council dispute settlement decisions is the growing diplomatic (political) function of the ICAO Council. Aviation is a crucial commercial activity for every State, meaning the aviation industry is determined by political interests and decisions. Such political interests and subtle international relations often prevent States from submitting themselves to binding legal procedures. Another reason for fewer disputes before the ICAO Council is the need for more provisions and rules to support transparent and legally binding decisions. The current rules are neither appropriate nor comprehensive enough and cannot be executed in the same manner as court decisions. In addition, the ICAO Council’s decision can be appealed to non-ICAO bodies such as the International Court of Justice. Therefore, it is highly recommended that the whole processual mechanism be revised or that a new, dedicated judicial body with clear legal status, jurisdiction, and competence for dispute resolutions be created.

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.

EU resilience in investment protection: a case for revisiting and reinforcing the loyalty principle in EU external relations

Abstract This article explores the concept of European Union (EU) resilience in the area of investment protection and Investor–State dispute settlement. The article adopts a functional approach to investment protection and suggests that reforming dispute settlement procedures in line with current Commission initiatives is key to promoting open strategic autonomy for the EU. Support for those initiatives is however weak, also among EU Member States. It is argued that EU resilience requires new tools for more unity and coherence in external EU action, both generally and for the reform of Investor–State dispute settlement in particular. The tool devised here is an increased loyalty standard coupled with a justification test, based on both a modernized comprehensive reading of loyalty obligations in primary law and the effectiveness principle and rationale as applied in case law. The novel approach promises significantly better results in terms of commanding coherence in external action while fully respecting the principle of conferred powers. It challenges traditional power dynamics, but incorporates a bold vision for external EU action that is truly autonomous and assertive.

Is Compulsory Jurisdiction Under UNCLOS Part XV Expanding? A Critical Review of the Claims

A recent criticism of international courts and tribunals that have seized jurisdiction under Part XV of the United Nations Convention on the Law of the Sea (UNCLOS or the Convention), is that they have attempted to expand their jurisdiction beyond the limits conferred by the Convention. This article calls such criticisms into question. Most of all, this article raises doubts over what exactly “expansion” of jurisdiction means. Although many scholars claim that Part XV tribunals “expand” their jurisdiction, none of them clearly defines the meaning of such “expansion.” In addition, their arguments focus solely on a few widely known and controversial cases. Lastly, in focusing on and arguing solely about the expansion of jurisdiction, they run the risk of oversimplifying the overall contributions of Part XV tribunals to Part XV rules on dispute settlement procedures, meaning that other points that merit further study remain less noticed. The aim of this article is to reassess the recent criticisms of the expansion of compulsory jurisdiction under UNCLOS Part XV. This will complement existing scholarly works and provide the opportunity to investigate a different perspective when appraising judicial practice concerning the exercise of compulsory jurisdiction under UNCLOS Part XV.

Peaceful Settlement of International Disputes

Disputes (disagreements) between States are an evitable part of international relations and have frequently led to armed conflicts. Under Article 2/3 of the UN Charter, all member States are obliged to settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endanger. It is a natural corollary to the obligation of States to refrain from the threat or use of force as enshrined in Article 2/4 of the Charter of the United Nations, The maintenance of international peace and security has always been the major purpose of the International Law. It was the basic objective behind the creation of the League of Nations in 1919 and the United Nations in 1945. Since the direct cause of war and violence is always a dispute between States, it is therefore in the interest of peace and security that disputes should be settled. Methods and procedures for the peaceful (pacific) settlement of disputes have been made available in the International Law. The methods of peaceful settlement of dispute can be classified into three principal categories: diplomatic, adjudicative, and institutional methodologies

JUDICIAL MEDIATION IN CIVIL PROCEEDINGS REPUBLIC OF KAZAKHSTAN

The paper describes the main stages of the emergence, formation and development of judicial mediation in Kazakhstan civil proceedings. The legislation on judicial mediation and the practice of judicial mediation have been studied. The achievements of the judiciary in the settlement of disputes arising from various spheres of legal relations through conciliation procedures, including judicial and classical mediation, are noted. The socio-legal significance of conciliation procedures, which include elements forming the institution of restorative justice, is determined. The study of the conciliation procedure of judicial mediation allowed the authors to establish that today the assistance of courts, conciliation judges, retired judges to the peaceful settlement of disputes is an effective measure to reduce the level of conflict among the population and unloading of courts. Meanwhile, as judicial practice shows, the assistance of courts to the peaceful settlement of a dispute has a positive effect on increasing the level of legal culture of the population and its confidence in the judiciary. The authors show the consistency of judges, conciliatory judges, retired judges in the peaceful settlement of a dispute, the relevance of the conciliation procedure of judicial mediation in society. In the course of the research, normative legal acts regulating the procedure for the peaceful settlement of disputes, conceptual and strategic documents on the development and improvement of the national judicial system, pilot projects of the Supreme Court of the Republic of Kazakhstan on reconciliation in court, before court and outside court, statistical data of courts on conducting conciliation procedures were used.

Сoncept, Content and Types of Procedures for Pre-Court Settlement of Administrative and Legal Disputes

The topicality of the topic is due to the study of various forms and procedures of pre-trial settlement of administrative-legal disputes as alternatives to the judicial procedure for consideration of this category of disputes, which requires a much larger public resource. The purpose of the study is to carry out a scientific analysis of the legal nature of pre-trial procedures for resolving public-law disputes, their types, as well as substantiating proposals for their improvement. The tasks of the research are to carry out a theoretical-legal analysis of the concept and content of "administrative procedures", to define the concept of "procedures for pre-trial settlement of administrative-legal disputes", to clarify its content and types. Achieving the outlined goal and fulfilling the set tasks became possible thanks to the use of a complex of methods of scientific knowledge, in particular the dialectical method, the use of which made it possible to comprehensively reveal the nature of "administrative procedure" as a form of pre-trial settlement of an administrative-legal dispute, as well as to trace the genesis of this phenomenon; the formal legal method was used to establish the content of legal norms and analyze the practice of their application by courts. As a result of the study, it was established that the procedure for pre-trial settlement of administrative-legal disputes should be understood as a legally defined sequence of actions of a subject of authority or another authorized person aimed at taking measures to resolve an administrative-legal dispute out of court. The following alternative procedural forms of pre-trial and out-of-court settlement of administrative-legal disputes are singled out: 1) administrative procedure for consideration of complaints against decisions, actions or inaction of subjects of authority, in accordance with the Law of Ukraine "On Appeals of Citizens"; 2) the procedure for appealing an administrative act of a subject of authority, in accordance with the Law of Ukraine "On Administrative Procedure"; 3) mediation – an out-of-court procedure for the settlement of a public-law conflict (dispute), which is carried out with the help (mediation) of a mediator; 4) reaching a tax compromise when resolving tax disputes, in accordance with the Tax Code of Ukraine; 5) the procedure for administrative appeal of decisions in cases of administrative offenses, in accordance with the procedure specified by the Code of Ukraine on Administrative Offenses and the Customs Code of Ukraine. It has been proven that the most complete content of this procedure is defined in the Law of Ukraine "On Administrative Procedure", which gives reasons to distinguish the following stages of it: initiation of administrative proceedings (complaint and decision, action or inaction of the subject of authority) and filing of such a complaint directly to the entity authorized to consider it or through the Centers for the provision of administrative services; accepting, registering a complaint and opening proceedings for its consideration; investigation of the circumstances of the case and collection of evidence; consideration and resolution of the case; making a decision in a case in the form of an administrative act; bringing the administrative act to the attention of the applicant; ensuring the implementation of the adopted act. Proposals to improve the norms of the Law of Ukraine "On Mediation", which regulate the procedure for out-of-court settlement of public-law disputes by defining and meaningfully filling the stages of such a procedure, are substantiated.

Virtual Voting in rfmos: A Procedural Odyssey at the Indian Ocean Tuna Commission

Abstract This article examines, from the perspective of international institutional law, the variety of procedural problems which arose following an online vote by secret ballot taken by the Indian Ocean Tuna Commission (iotc) in 2021. By providing a detailed case-study of this novel instance of practice and the challenges it represents, this article aims to contribute to a better understanding of the institutional governance and procedural legal framework of regional fisheries management organizations (rfmo s). It first analyses the vote and the challenge to its validity. This article then constructs a taxonomy of the various procedural irregularities that were found to have occurred, the responsibility of institutional actors for their occurrence, and their legal consequences. The final substantive sections of this article examine how the iotc ultimately dealt with the situation and what potential role the available dispute settlement procedures could have had in addressing the discussed procedural irregularities.

Поняття та основи правового регулювання інституту медіації: український та зарубіжний досвід

The article is devoted to the concept and legal regulation of the institution of mediation in Ukraine. The authors note that today mediation is one of the most effective ways to resolve conflicts, because the decision made as a result of negotiations or mutual agreement of the parties reflects the true interests of the parties. Modern mediation is one of the methods of out-of-court informal settlement of disputes, such as arbitration, conciliation, arbitration courts, expert evaluation. Mediation can be used both in family disputes and in disputes between large corporations or international disputes as not only an alternative method of conflict resolution, but as the most effective one. The authors, analyzing the concept of mediation, point out that the National legislation contains the definition of the concept of mediation in the Law of Ukraine "On Mediation". The authors note that despite certain differences in definitions, the following characteristic features are decisive for the concept of mediation: the involvement of a third, disinterested, independent person who helps to reach a consensus between the conflicting parties; voluntary participation in the mediation process; confidentiality of the dispute settlement procedure. Also, its non-judicial character is one of the characteristic features of mediation. In the article, the authors note that the adoption of the Law of Ukraine "On Mediation" has its positive consequences, namely: increasing public awareness of mediation as a way of resolving conflicts through negotiations; increasing trust in such an out-of-court method of dispute settlement, thanks to the legal certainty of the mediation procedure, the legal status of the mediator, the rights and obligations of the participants in the mediation procedure, and the outline of the main principles (principles) of its conduct; legalization of the profession of mediator and the corresponding type of activity; determining the mediator's status in interaction with courts, authorities in matters of the mediation procedure; not allowing the mediator to be questioned as a witness regarding the information that became known to him during the participation in the mediation procedure. Legislative regulation of mediation procedures, according to the authors, creates conditions for more active use of this method of conflict (dispute) settlement and their resolution

A comparative analysis of compulsory conciliation under the United Nations Convention on the Law of the Sea

Compulsory conciliation is featured as a residual means in the United Nations Convention on the Law of the Sea, yet it is still an important dispute settlement procedure. In terms of jurisdiction and settlement of competence disputes, compulsory conciliation is closely related to arbitration and litigation under Article 287. The recommendations and reports of the Conciliation Commission are not legally binding. Compared with arbitration and litigation, compulsory conciliation has advantages in the form of procedural flexibility and controllability of results. Concerning the number of maritime delimitation cases referred to the International Court of Justice (ICJ), International Tribunal for the Law of the Sea (ITLOS) and Annex VII arbitral tribunals, all of them do not have a significant advantage over conciliation. The Conciliation Commission enjoys greater flexibility in the application of law and procedures, and its recommendations may even go beyond the request of the parties. Given that the procedure has a nonadversarial character, and the conciliation agreements are typically based on the voluntariness of the disputing parties, the willingness to comply and enforce is better than arbitration and litigation. It also has advantages over arbitration and litigation in terms of the political and time cost. Thus, with greater understanding and practice of the procedure, it will play a more important role in maritime dispute settlements.

Legal grounds for implementing the institution of recourse to the mediation procedure and the use of other alternative methods of resolving tax and customs disputes

In the research it is emphasized that, in some states of the European Union EU, tax mediation is already used and considered not only as an alternative method of dispute resolution, but also as a method used to prevent the occurrence of a tax dispute in the future. Thus, on the basis of legal methods of scientific knowledge, such as: dialectical, logical-formal, comparative-legal, etc., the article examined modern approaches to the characterization of mediation as a procedure for peaceful settlement of disputes, paying attention to its characteristic features and differences from other forms of alternative dispute resolution. The state of legal regulation of the mediation procedure in public disputes in general, and in tax disputes in particular, using the example of Latvia and Ukraine, is highlighted. It is concluded that the necessary condition for carrying out mediation in public disputes should be enshrined in the administrative procedural legislation, not only the powers of state and municipal authorities to initiate mediation should be, in addition, to recognize such a decision in the form of an administrative contract, from which legal consequences with the character of public law are derived.

CRIMEAN OCCUPATION AND UNCLOS DISPUTE SETTLEMENT: NAVIGATING TERRITORIAL SOVEREIGNTY AND NON-RECOGNITION

Abstract. The article examines the interplay between the Crimean occupation and UNCLOS compulsory dispute settlement procedures, exploring how the fact of Crimea’s occupation can be established and UNCLOS dispute settlement procedures applied. It also investigates the contradiction within the Annex VII Arbitral Tribunal’s award in the Coastal State Rights Dispute due to Crimea’s occupation. The study concludes that to address violations made by the Russian Federation under the provision of UNCLOS Crimea’s occupation, Ukraine can seek an advisory opinion from the International Court of Justice. Strengthening Ukraine’s position requires a legally binding decision on Crimea’s occupied status and Ukraine’s coastal state status, possibly through an ad hoc tribunal with jurisdiction. Supporting evidence from other courts may be valuable, despite their lack of direct jurisdiction over the matter of occupation. The article also discusses the principle of nonrecognition and the tribunal’s neutral approach to accommodate both parties in its award in Coastal State Rights Dispute.

Медиация и нотариат: опыт Франции и России

Mediation as a procedure for a peaceful settlement of disputes is gradually entering the legal life of many European countries. Mediation being in the “set” of conciliation procedures proposed by the state as an alternative to trial, as a friendly settlement of legal conflict, is developing in a priority order. One of the areas of development is the application of the procedure in notarial activity. The French notary achieved in this area certain results that are of interesting for study, analysis, and subsequent perception, taking into account Russian legal realities. A notary mediator, a notary who knows and accepts mediation as a way of resolving a dispute, a notarial intermediary is not only the names that are interesting for the theory of the civil process, bur they are notarial practices. The use of various aspects of mediation in notarial activity allows us to talk about the reality of the “union” between notaries and mediation, its organic character due to the similarity of the goal, objectives, principles of the notary and mediator. At the same time, attention is drawn to the presence of a number of problems that impede the active promotion of mediation into the sphere of notaries.

Improvement of the WTO Dispute Settlement System Effectiveness and the Monetary Compensation

This article examines the effectiveness of the suspension of concessions or other obligations taking into consideration the interpretation of the objectives of that measure by WTO doctrine and case law. In order to access if the suspension of concessions contributes to the effective implementation of the WTO DSB decisions and recommendations, the article adopts the theoretical concept of technical efficiency. Departing from an argument based on WTO doctrine and on the analysis of cases adjudicated by the WTO DSB, in which the measure was applied, the study demonstrates a mere partial efficaciousness of the suspension of concessions for the DSB compliance procedure. In this regard, it is suggested that the DSU adopts the institute of reparation, present in the International Public Law, aiming to stablish the obligation of indemnify the damages caused throughout the dispute settlement procedure, due to the continuation of the illegal practice by the transgressor member. The article concludes, therefore, with a proposal for including the retroactive monetary compensation in the DSU, in order to reinforce its compliance procedure and offering more effectiveness to the WTO DSS.

A New Type of Abuse at Observance of the Complaint Dispute Settlement Procedure

A New Type of Abuse at Observance of the Complaint Dispute Settlement Procedure

Standing in international investment and trade disputes

International investment agreements employ dispute settlement procedures that differ markedly from their counterparts in trade agreements. A prominent and controversial difference arises with respect to the issue of “standing”: Who has the right to complain to adjudicators about a violation of the agreement? While trade agreements limit standing to the member governments (state-to-state dispute settlement), investment agreements routinely extend standing to private investors as well (investor-state dispute settlement). We develop parallel models of trade and investment agreements and employ them to study this difference. We find that the difference in standing between trade and investment agreements can be understood as deriving from the fundamentally different problems that these agreements are designed to solve. Our analysis also identifies some important qualifications to the case for including investor-state dispute settlement provisions in investment agreements, thereby offering a potential explanation for the strong political controversy associated with these provisions.

국제재판소의 유엔해양법협약 제15부 법규범 형성에의 기여(원제목: ‘Judges Make UNCLOS Part XV’)

One of the greatest achievements of the Third UN Conference on the Law of the Sea was the introduction of the compulsory dispute settlement system into the United Nations Convention on the Law of the Sea (UNCLOS) as an integral part (Part XV). The introduction of the compulsory jurisdiction system was due to the shared need for comprehensive and effective dispute settlement mechanisms to prevent discretionary interpretation and application of the Convention. Thus, Part XV of UNCLOS maintains the overall balance and holds the whole structure of the Convention.
 Recently, the Part XV system of UNCLOS has been at the centre of controversies and debates among academics, which were mostly based on the views that tribunals have vigorously expanded the applicability of compulsory jurisdiction and that contradictions within the case-law have raised an inconsistency problem in interpreting and applying Part XV. However, the current thesis calls such criticisms into question. Instead, this research argues that the judicial findings concerning the compulsory dispute settlement system of UNCLOS can be analysed and assessed through the concept of judicial law-making.
 Among the different ways of understanding the concept of judicial law-making, this thesis considers that courts and tribunals may create and shift the normative expectations of other subjects of international law through the interpretation of a treaty. International judicial bodies’ interpretation of a norm in a treaty may inevitably affect all other states parties to the same treaty because their authority as judicial organs enables them to shape the meaning of the law and to make their decisions a reference point for other subjects of international law. In this regard, this thesis argues that judicial law-making may happen when international judicial bodies interpret the provisions of UNCLOS Part XV to find a way to apply the rules to actual cases.
 In brief, the present thesis will show what rules Part XV tribunals have created concerning the compulsory dispute settlement procedures of UNCLOS and how this system has developed through the clarification of norms by international adjudication. In this respect, this research will propose a different perspective on the study of the dispute settlement system under UNCLOS and the role of Part XV tribunals.

Reformation of Dispute Settlement Mechanisms for International Trade Organizations: Ensuring Developing Country Interests

Regional Trade Agreements (RTAs) are frequently advantageous for developing countries and can help them prepare for future trade opportunities provided by the World Trade Organization (WTO). Developing countries face a dilemma when disputes occur within an RTA; the WTO Dispute Settlement Body (DSB) tends to be too costly and inaccessible, while RTA dispute settlement mechanisms (DSM) tend to be underdeveloped and immature. In order to minimize the cost of dispute resolution and better safeguard the interests of developing nations and regional trade agreements, which are frequently more beneficial to developing countries, this paper describes why and how the WTO should change its dispute settlement procedures. It also argues that these systems should be established to make the WTO's dispute resolution mechanisms more effective.

Reforms Within the Current WTO System to Ensure Developing Nation Interests: Labor Standards, Intellectual Property, and Dispute Settlement

The modern international trade framework aims for trade liberalization, that achieving worldwide free trade would help people achieve higher living standards. However, the current WTO system still requires modifications to ensure the rights and benefits of developing countries regarding worker protection, intellectual property protection, and dispute settlement. This paper focuses on analyzing the current labor market, intellectual property policies, and judicialization within international dispute settlement procedures, points out the flaws in each of them and provides a solution for possible enhancement to ensure developing country rights.