Resolution Procedures Research Articles

The genesis of private dispute resolution in Irish industrial relations

AbstractThis article examines the genesis of private dispute resolution arrangements introduced by employers and unions in Ireland. These forms of collective alternative dispute resolution (ADR) comprise three‐person panels or sole adjudicators, who mediate and issue findings on collective disputes. Findings may be non‐binding or binding. Using data and interviews covering 11 private dispute resolution arrangements in 10 organisations, the paper identifies the circumstances in which they have emerged and a series of influences that lead employers and unions make path‐breaking changes in dispute resolution procedures.

Doctrine of Alternative Dispute Resolution in Commercial Contract Particularly Mediation Clauses

The Alternative Dispute Resolution procedure provides an amicable settlement mechanism with the assistance of independent or so-called neutral professionals to resolve conflicts between the contracting parties. Alternative dispute resolution has become increasingly relevant in today’s world, and the number of agreements involving alternative dispute resolution provisions is steadily growing. Alternative dispute resolution is typically more efficient and time-saving than conventional court litigation, which is one of the causes for its development. The current research explores European Union mediation’s most common alternative dispute resolution strategy. It is mainly concerned with the mediation of legal and commercial conflicts. The research discusses European Union alternative dispute resolution patterns and associated requirements under the European Union statute, the United Nations Commission on International Trade Law Model Law on International Commercial Conciliation (2002), as well as other laws defined by alternative dispute resolution related organisations such as the International Chamber of Commerce and Effective Dispute Resolution Centre. It also draws parallels between the United States of America and the courts of some Member States of the European Union regarding alternative dispute resolution matters. Furthermore, it finds alternative dispute resolution in the sense of the right to adequate remedies (fundamental principle of the European Union). The study further explores the roots of alternative dispute resolution, its features and applicability, and the benefits of alternative dispute resolution over litigation/arbitration procedures, both of which tend to facilitate alternative dispute resolution’s broader use of business dispute resolution procedures. The qualitative research methodology will be applying for this research.

Foreign experience in the implementation of mediation as an alternative method of conflict resolution (the German example)

The transformation of mediation as an alternative method of dispute resolution in Germany since the XIX century is considered. Particular attention is paid to the analysis of the main stages of the formation of mediation in Germany in order to determine the legal nature of mediation. The legal regulation of the mediation procedure in Germany and the requirements for the mediator are in the Federal Law «On the Development of Mediation and Other Methods of Out-of-Court Dispute Resolution» 2012 codified the legislation on mediation and related alternative dispute resolution procedures. The main ideas of this legal act were: voluntary mediation, autonomy of the will of the parties, full awareness of the parties about the mediation process, the obligation to implement the agreement reached by the parties in the mediation process; ensuring the confidentiality of the mediation procedure; suspension of the statute of limitations for the duration of the conciliation agreement. A characteristic feature of the definitions of "mediation" and "mediator" in the Law is the expression through them of the basic principles of the procedure, such as confidentiality and voluntariness of mediation, responsibility of the parties, neutrality of the mediator. This approach makes German law more concise and eliminates the need to include a separate article listing the principles of mediation. German law does not set requirements for the legal form for the provision of mediation services – it can be both individuals and legal entities. It should be noted that today in Germany mediation competencies are considered as one of the «compulsory elements of qualification" of law students. The priority of consolidating the legal regulation of mediation in the Ukrainian legislation is determined.

Judicial and non-judicial dispute resolution procedures

Judicial and non-judicial dispute resolution procedures

The Essence and Methods of Resolving Land Disputes

It is proposed to consider land disputes as a special type of legal relationship, which is based on differences of subjects manifested in the emergence, implementation, change or termination of land rights, their protection in connection with the violation of rights and legitimate interests (or their recognition) of owners or users of land plots, including tenants and other subjects of land legal relations. It is established that the process of improving the existing mechanisms for resolving land disputes is ongoing, so it should take place through a system of legal, organizational and economic measures. Such measures must be taken by authorized subjects of land relations in the application of procedures for the protection of land rights and ensuring the effective use of land under the conditions specified by the legislation of Ukraine. Land disputes are defined as a conflict between the subjects of land relations, which need to be resolved in the manner prescribed by law. Its participants are the subjects of land relations: the state and its authorized bodies, individuals and legal entities, whose legal status is determined by the rules of land and civil law. The classification of land disputes by nature, depending on the grounds (methods) of occurrence, change or termination of the right to use the land plot, depending on the settlement mechanism, according to the level of dispute resolution is proposed. The expediency of improving the procedure for consideration and resolution of land disputes by strengthening the administrative procedure for resolving them is substantiated. Due to the effect of quarantine and deterioration of financial situation, the possibility of a person to go to court to resolve a land dispute is significantly limited. The expediency of developing methodological recommendations for united territorial communities on the mechanisms and procedure for resolving land disputes and methodological recommendations for internally displaced persons on the procedure for protection of land rights is proposed.

COMPARATIVE ANALYSIS OF SETTLEMENT OF DISPUTES WITH THE PARTICIPATION OF A JUDGE AND WITH THE HELP OF MEDIATION

The purpose of the article is to define the criteria and compare the main aspects of the essence of the dispute resolution procedure with the participation of a judge and the mediation procedure. To achieve this goal, a set of modern general and special methods was used: analysis, synthesis, comparative law, generalization, etc. Through the use of such methods, the main differences and common features of the studied concepts were identified, and ways to improve them were proposed. Results: the dispute settlement procedure with the participation of a judge and the process of mediation are significantly different, so they are not identifiable. Dispute resolution with the participation of a judge is a procedure close to mediation, a hybrid tool integrated into the judicial system. The criteria for distinguishing the studied concepts are: their essence, the degree of state regulation, timing, participants in the procedure, the role and legal status of the mediator, the grounds for conducting and terminating the procedure. Among the common features: the procedure, the principles of implementation (voluntariness, independence, confidentiality, neutrality of the mediator, etc.). The need to create a special law on mediation and expand the powers of public administration bodies and their officials remains relevant. Discussion: procedural legal acts, which regulate the dispute settlement procedure with the participation of a judge, require clarification of the powers of judges during this procedure. The condition of dissemination and use of conciliation procedures in the administrative process remains unsatisfactory and requires a new approach, changing existing stereotypes about the authoritarianism of public authority. The development of a system of mechanisms for alternative resolution of administrative and legal disputes requires further thorough scientific research.

Protection of the Rights of Consumers of Services in Court and the Responsibility of the Contractor

Problem Statement. We believe that a special interest is the protection of the rights of citizensconsumers in domestic service, which is considered one of the most important socially significant sectors, providing a huge variety of services. Moreover, the most acute issues are the protection of the rights of consumers of services in court and the responsibility of the service provider. Purpose and Objectives of the Study. Identify the essential features of the application of consumer protection services in court to determine some features of the responsibility of the service provider under the legislation of the Russian Federation. Research objectives: to analyze some features of protection of the rights of consumers of services in court; to determine the order of responsibility of the service provider in case of violation of the quality of the rendered service; to identify the shortcomings of legal regulation in the protection of the rights of consumers of services in court and on their legal analysis to formulate individual proposals for the reform of the current legislation. Method of Research. We used empirical methods of comparison, description, and interpretation; theoretical methods of formal and dialectical logic; historical-legal and comparative-legal methods. Results, Brief Conclusions. It is defined that the protection of consumer rights refers to the activities of the state aimed at regulating public relations that arise between a consumer and a business entity. It is established that in the entire sphere of legal regulation of consumer protection there are certain principles that determine the ways to improve consumer legal norms, taking into account political, economic, ideological and environmental conditions. They help ensure the unity of the application of legal norms in the sphere of consumer services, as well as identify ways to improve the human rights mechanism. It is argued that in ensuring the quality of household services rendered, its performers play a fundamental role. However, the correct actions on the part of the consumer, expressed in its obligation to comply with the rules for using the results of the service provided, also play a role in ensuring their proper quality. In case of rendering of household services of inadequate quality and absence of a positive result of an out-of-court dispute resolution procedure, the consumer»s right to protection is implemented by applying to the court.

Expanding the Scope of the EU BRR Framework: An Administrative Receivership for the Banking Union

The global financial crisis of the early ‘00s prompted EU legislators to harmonize the regime for the management of bank crises and to establish a dedicated pillar within the scope of the European Banking Union to centrally manage credit institutions’ failures. Nonetheless, established policy approaches concerning the assessment of the “public interest” condition limit the effective use of resolution procedures to a minority of credit institutions able to meet the systemic importance threshold. In order to prevent the resulting renationalization of crisis management measures for the remaining banks, the scope of the EU BRR framework should be expanded through the establishment of a special bank administrative receivership (BAR) system managed by the SRB. The BAR should represent an alternative to the dichotomy between resolution and NIP, and it should leverage on the combined use of the Sale of Business and the Asset Separation tools, supplemented with DGSs’ bridge financing to realize a smooth transfer of quality assets to third party buyers. The regime should be open to failing credit institutions able to pass a new PIA test based not only on financial stability concerns, but also on an assessment of the value destruction associated with piecemeal liquidation.

Mobilizando o Raciocínio Proporcional na resolução de problemas de percentual

Este trabalho tem o objetivo de mostrar resultados e análises de dados de uma avaliação que versou sobre aumentos ou decréscimos percentuais de valores ou quantias na resolução dos 3 últimos problemas, de um total de 6(seis). O propósito que norteou o estudo foi o de descrever a natureza das soluções dos sujeitos, conforme o nível de raciocínio proporcional implicado, de modo a identificar e conhecer como se deu a aprendizagem ocorrente e a natureza das intervenções de ensino encaminhadas pelo professor. Os resultados da avaliação, aplicada a 12 dos 28 alunos da turma, em sala de aula de um colégio público, se deu após o desenvolvimento e a exploração de conceitos associados com o exercício do raciocínio proporcional via conceitos presentes nas funções lineares, durante a resolução de 13 problemas de Matemática Financeira, em um total de 4 aulas, de 40 minutos em cada. Trata-se de uma pesquisa qualitativa, na modalidade pesquisa-ação estratégica, segundo (FRANCO, 2005), segundo a qual a análise dos dados constituiu o mote para apontar indicações a respeito da apropriação do raciocínio proporcional durante a resolução de problemas dessa natureza.

Estudo da circunferência à luz dos princípios axiomáticos de rené descartes. Um olhar ao contexto de ensino-aprendizagem da Escola Superior Pedagógica do Bié (esp-bié)

Neste artigo apresenta-se um estudo relativo à circunferência, com base ao programa de Geometria Analítica do primeiro ano do curso de Matemática da Escola Superior Pedagógica do Bié, seguindo os princípios lógico-dedutivos introduzidos por René Descartes. A visão original que esteve na base deste estudo, tem a ver com um diagnóstico feito ao primeiro autor através de uma breve apresentação oral de um tema matemático de nível elementar referente ao ensino da circunferência, no âmbito do plano curricular da cadeira de Projecto de Ensino I do Curso de Mestrado em Matemática para Professores na Universidade de Beira Interior em Portugal. Cujo resultado do diagnóstico revela um rol imenso de insuficiências, relativamente a incapacidade do docente em lecionar o conteúdo da circunferência na perspectiva de um ensino que parte do mais simples para o mais complexo, demonstrando os resultados na base de teoremas e proposições adaptados a priori, o que promovia uma aprendizagem menos significativa por parte dos estudantes, neste âmbito. Neste sentido, pretende-se inverter esse quadro, com a realização desta pesquisa cujo objetivo é contribuir para o melhoramento do ensino da Geometria Analítica com particular realce ao tema da circunferência no curso de Matemática da Escola Superior Pedagógica do Bié. A mesma está encaminhada com vista a dar resposta a seguinte questão da pesquisa: como melhorar o ensino e aprendizagem da Geometria Analítica com ênfase ao tema da circunferência, nos alunos do primeiro ano do curso de Matemática da Escola Superior Pedagógica do Bié? A orientação metodológica é do tipo qualitativo e a abordagem descritiva, pois tratou-se de observar, analisar e descrever os procedimentos de resolução utilizados pelos professores e estudantes no estudo da circunferência, incluindo a revisão bibliográfica dos materiais de apoio utilizados como bibliografia básica na referida disciplina.

Process for assigning contracts for exploration and production of oil and natural gas - procedure and main aspects of ANP Resolution No. 785/2019

Process for assigning contracts for exploration and production of oil and natural gas - procedure and main aspects of ANP Resolution No. 785/2019

The Institution of the Financial Ombudsman as an Instrument for Improving the Model Disputes Resolution Procedure in the Financial Market (Attempted Inductive Analysis)

The paper analyzes the experience of the newly created institution of the financial ombudsman that serves to consider property disputes arising between consumers and financial organizations through pre-trial procedure; considers the main trends and patterns shown at the initial stage of functioning of the institution; provides forecasts and recommendations for the development of the institution of pre-trial dispute resolution in financial markets. The author focuses on the anlysis on the role of the financial ombudsman in the formation of the procedural aspect of the contemporary financial disputes resolution. According to the results of the study, the author concludes that the institution of the financial ombudsman can and should be developed with due regard to the comments made on possible areas of expansion of his or her functions on the basis of the main task, namely: to create a business environment where the rights of consumers of financial services are protected to the greatest extent possible. However, to move to this makes sense only after the Federal Law of June 04, 2018 № 123-FZ “On the Ombudsman for the Rights of Consumers of Financial Services” comes into force, i.e. after January 1, 2021.

Implementation Law Issues Of Supreme Court Regulation No. 4 Of 2019 About Perma Revision No. 2 Of 2015 About Small Calim Court Resolution Procedures And Its Settlement Efforts

Legal dispute resolution can be done through non-litigation channels or through litigation channels. The non-litigation route as an alternative to dispute resolution (APS) outside the court route through its main mechanism, namely negotiation, mediation and arbitration, is increasingly loved by the public, especially the business world, because it offers various advantages compared to using the litigation route. But for some people, they still view dispute resolution through litigation as the main dispute resolution so that the consequence is that there is a buildup of cases in courts both at the first level, especially at the Supreme Court level. To anticipate this, the Supreme Court issued Perma No. 2015 concerning Procedures for Settlement of Small Claim Courts which was later revised to Perma No. 4 of 2019 concerning Amendment of Perma No. 2 of 2015 concerning Procedures for Settlement of Small Claim Courts. The Supreme Court's biggest hope is that this procedure can reduce the buildup of cases and can provide a sense of justice for the small community who demand justice, but in its implementation, there are still several legal problems that can cause the Small Claim Court to not run optimally. This study uses a normative juridical method supported by interviews. The primary data of this research are interviews with Supreme Court officials and several District Courts such as Central Jakarta District Court Class IA, Bandung District Court Class IA, Bale Bandung District Class IA and Garut District Court. Secondary data for this research were obtained from a literature study of laws and regulations governing the Small Claim Court procedure. Based on the results of the research, there are several problems related to the application of the Regulation on Small Claim Court related to the binding power of the use of the Small Claim Court, the use of a single judge in deciding, the problem of domicile differences. These problems can be minimized with several efforts to resolve them properly and effectively so that the application of the principles of fast, simple and low cost justice in a Small Claim Court is not only a mere slogan without any real realization.

Онлайн-урегулирование споров в сфере электронной коммерции

This article on Online Dispute Resolution in E-Commerce provides a detailed analysis of the international legal framework for conciliation and online dispute resolution. The authors analyze the conceptual apparatus of online dispute resolution in the field of e-commerce, the subject of this category of disputes, as well as the person composition of their dispute resolution, including the relevant specializedorganizations, includingmediationcenters, andaspecializedentitiessuchasInternetombudsmen, e-commerceombudsmen and etc. Special attention is paid to the rules ensuring transparency of information about the functioning of platforms for online dispute resolution, and about the persons administering their activities. The article examines the online dispute resolution procedure, as well as the activities of online dispute resolution platforms and persons administering their activities, including their functional responsibilities. The authors come to the conclusion that at a certain stage of the introduction of digital technologies there is competition between legal norms and regulations and algorithms that mediate the use of these technologies. Unfortunately, both are subject to the threat of corruption. In this regard, a proposal is being formulated regarding the establishment of anti-corruption restrictions and obligations, and a requirements to avoid conflicts of interest with respect to persons administering online dispute resolution platforms.

Развитие электронной торговли и основные направления модернизации гражданского и процессуального законодательства

The research goal of this article is to reveal and substantiate the main trends in the development of civil and procedural legislation in the context of the development of E-commerce, to analyze the dynamics of the development of institutions of modern civil law and procedure in a digital society. The study shows the dynamics of development of legal regulation in the conditions of transformation of economic relations, growth and intensification of digital technology, identified and revealed the development of civil law in the context of digitization technologies and markets. In future, it is expected that the scope of online dispute resolution procedures will be expanded; but even in such case, the guarantee of unhindered access to justice implies active judicial control.

Keeping dispute resolution internal: Exploring the role of the industrial relations climate, organizational embeddedness and organizational turbulence

Drawing on job embeddedness theory, this study investigates how and when the industrial relations climate influences employees’ preference for particular labour dispute resolution procedures. Analyses of multisource and multilevel data from China show that organizational embeddedness mediates the relationship between the industrial relations climate and preference for internal dispute resolution (IDR) and this indirect effect is stronger in organizations with a high level of turbulence. These findings provide novel theoretical explanation of the linkage between the industrial relations climate and employees’ preference for IDR and highlight the interactions between the industrial relations climate and organizational turbulence. Practical implications are also offered to facilitate employees’ preferences for IDR by improving the quality of the industrial relations climate.

Reformulating Political Party Court Procedures in Parties' Dispute Settlement

This paper aims to revisit the procedures for internal dispute resolution of political parties through political party courts. Reformulation is the stage of law enforcement in abstracto by the legislature or is limited to the formulation of provisions and substances that will be regulated in law in accordance with the situation and conditions, both present and future. The political party court is an important institution in the law enforcement process that has a mixed-function, namely as a regulator, administrator, and even adjudicator with a quasi-judicial nature. Internal dispute resolution brought to the political party court is to ensure the freedom of political parties, as well as to limit government interference which can lock in the freedom and role of political parties as one of the institutions needed to exercise people's sovereignty. Thus, it is urgent to have the idea of ​​reformulating the procedural arrangements of the political party court which are in accordance with the principles of justice and can be accounted for. This is an answer to the problems of political party disputes so that these dispute cases can be accommodated through strict and perfect regulations.KEYWORDS: Reformulation, Political Party Court, Dispute Resolution, Political Parties.

Новые организационные формы работы судов в условиях их цифровизации

Formulation of the problem. A distinctive feature of the modern stage of digital modernization of ships is the structural changes in the organization of their work, caused by the introduction of IT-technologies. Digital technologies cause a regulatory impact on the organizational aspects of the courts, which actualizes the problem of finding new forms of their work. Purpose of work: from the point of view of achieving the expected benefits of introducing a variety of digital technologies in the courts, the long-term areas of work, as well as identifying potential risks associated with their use, justify new approaches to the organization of the courts during their digitalization. Methods. The methodological base consists of traditional techniques and methods of scientific knowledge, including empirical research methods, which allowed the author to formulate proposals for testing new ideas on the basis of experimental sites – pilot courts. Results, brief conclusions. The use of communicative technologies in the courts does not lead to access to justice for all, which makes the courts obligated to provide specific assistance to persons without technical skills, as well as to create a variety of organizational forms of assistance to citizens applying to the court that would meet their needs for a fair hearing and reduced the risks of anonymity in litigation. Among these forms of assistance to citizens are: front-office models for organizing the reception of citizens, dispute resolution procedures online and in the courthouse, where appropriate premises are provided for this. To test digital technologies, as well as eliminate potential risks associated with their implementation, it is proposed to use the concept of «pilot» courts on the basis of which to develop systems for assessing and measuring the judicial burden in courts, as well as new forms of organization of court work (forms assistance to citizens), given the features of the judicial work of city and rural courts, military and arbitration courts.

Criminal Liability in Conflictological Discourse

The paper deals with the history of criminal law and criminal liability in conflictological discourse. On the basis of ideas of legal pluralism, the authors investigate the transformation of the criminal and legal mechanism of conflict resolution from ancient times to the present. They study the customs of exile, blood vengeance, blood reconciliation, as well as a number of other customs of Amazonia and North America. The paper explains that such customs remain until now due to the expressed compensatory character and evaluates the origins of ritualization of conflict resolution procedures in ancient society. The authors examine the circumstances of the disappearance of the victim concept from repentant law, as well as the borrowing of the religious concept of responsibility not before the victim, but before the suzerain by secular law.The authors note that many generations of lawyers have formed their professional consciousness under the influence of an indispensable formal cliché: for the committed crime the perpetrator must be held criminally liable not before the injured person, but before the State that is not in the least at times guilty of failing to provide the victim with a safe life. Few doubted that the postulate given is the only one true. This example of survivability of ancient criminal law customs demonstrates the interest of society in alternative ways of solving criminal law disputes. The authors conclude that legal pluralism is natural for the area of criminal law due to the expressed compensatory tendency in the society’s perception of criminal liability. The penetration of compensatory elements into modern criminal law is assessed as a positive and only possible trend of further criminal law development.

Dispute Resolution Provisions in Life Sciences Agreements

This paper surveys the dispute resolution provisions of 15 life sciences research and development collaboration and license agreements that are non-confidential exhibits to reports filed with the United States Securities and Exchange Commission during the first seven months of 2020. Part II provides an overview of the Agreements, including the governance provisions. Part III reviews the dispute resolution provisions, and describes the disputes the parties have agreed to submit to internal resolution procedures, the disputes they have agreed to exclude from any form of external resolution, and the disputes they have agreed to submit to expert determination, mediation, arbitration, or litigation, or some combination of these procedures. Part IV describes the parties’ approaches to the substantive law governing their disputes. For disputes the parties have agreed to submit to arbitration, Part V describes the arbitration agreements, focusing on scope, choice of seat, and arbitrator selection. Finally, Part VI concludes that the complex dispute resolution provisions in these Agreements can lead to litigation on scope and exercise of decision rights, jurisdictional disputes, parallel arbitration and litigation proceedings, and inconsistent judgments.