Dispute Review Research Articles

Pre-trial procedure for settlement of economic disputes

The article is devoted to the institution of pre­trial dispute settlement as a type of reconciliation of the parties to the dispute. The question of assigning such an order to the stages of the judicial process is being investigated. It is proven that the pre-trial (claim) dispute settlement procedure should be recognized as an optional stage of the economic court process, because it affects the formation of the evidence base and the choice of the form of proceedings. It was concluded that, by its nature, this institute in Ukraine should be called «out-of-court (claim) procedure for dispute settlement», since the main direction of its application is an attempt to resolve a conflict without going to court, however, documents, correspondence between counterparties arising in the process of dispute settlement may later become evidence in the case. It was concluded that it is inexpedient to establish (expand) the list of disputes for which the application of such a procedure is mandatory. Such expansion will lead to an unjustified restriction of the right of access to the court and will provide opportunities for business entities to abuse their rights. At the same time, the application of such procedure by the parties to the dispute leads to the formation of an evidentiary base, which later in the process is submitted to the court and evaluated by it along with other evidence in the case. Only compliance with all the requirements established by Article 222 of the Economic Code of Ukraine gives the court the opportunity to recognize correspondence between the parties as a pre-trial dispute settlement procedure and to apply negative consequences to the party that violates the procedure established by law. It is proposed to enshrine in the procedural law the duty of the court to explain in detail to the parties to the dispute the consequences of concluding a settlement agreement during the review of disputes in cases where they tried to settle the dispute by applying the pre-trial (claims) dispute settlement procedure before applying to the court. At the same time, the term given by the legislator to respond to the claim is proposed to be significantly reduced, as economic relations are dynamic and require prompt resolution.

A Review of Disputes in Claims for Loss and Expense Related to the PWD Form of Contract Based on Malaysian Legal Cases

Construction disputes arising from claims have become common in this unique and complex industry. Resolving disputes leads to extra costs and is time-consuming. Most of the disputed claims in construction occur due to project delays. A claim for loss and expense is one of the claims incurred due to certain events that usually arise from the delay. Therefore, this paper aimed to identify disputes in claims for loss and expense related to the PWD form of contract based on Malaysian legal cases. Understanding why disputes occur in construction contracts can reduce the chances of their occurrence, and parties can establish a quick, cost-effective resolution process that will not jeopardise their potential in future business relationships when disputes arise. The research adopted a review related to construction law cases from 'Malayan Law Journal Report/Unreported'. Findings indicate that disputes in claims for loss and expenses related to the Public Works Department (PWD) form of contract can be categorised into contractual, documentation, and procedure. Understanding the contract provisions is a must for every construction party to obtain successful claims. This paper suggests identifying disputes related to PAM forms of contracts in the Malaysian construction industry, so that the contracting parties can understand the impact of the disputes.

Video Game as an Object of Copyright in the Era of Digital Technology Development

This article is devoted to a video game as an object of copyright. The paper defines the concept of “video game”, highlights its features, summarizes approaches to determining the right mode of a video game. American literature and copyright legislation in relation to video games are also analyzed. In particular, the paper considers the experience of protecting the rights to an audio-visual work in the USA. Examples from judicial practice in such cases are also given. This made it possible not only to analyze the legal regime of regulation of multimedia objects, but also to raise the issue of some features of judicial review of such disputes. Noteworthy is the example of an independent allocation by the court of elements of a video game that are subject to judicial protection as objects of copyright. Particular attention is paid to the need to consolidate the work of representatives of the gaming industry and the legislator in terms of the normative definition of a “video game”, the objects of which it may consist and the possibility of their addition to existing ones, as well as determining the circle of authors of a multimedia work.

Legal Disputes on the Assessment of Customs Value: Trends in the Courts Rulings

The article presents the findings of scientific and practical analysis of court decisions made following the review of disputes on the assessment of customs value over the past few years. The author comes up with suggestions aimed at improving legislation and unification of law enforcement practice in Russia and throughout the territory of the Eurasian Economic Union.

К вопросу о разграничении компетенции судов при рассмотрении споров, связанных с наследованием корпоративных прав

К вопросу о разграничении компетенции судов при рассмотрении споров, связанных с наследованием корпоративных прав

Shift of Criminal Acts of Copyrights to the Direction of Civil Dispute (Review of Article 95 Paragraph (4) of Law Number 28 Year 2014 on Copyright)

This article conducted a study about the obligation of mediation as a precondition for copyright infringement based on article 95 paragraphs (4) of the Law Number 28 of 2014 concerning Copyright. Mediation provisions in the Laws Number 30 of 1999 on Arbitration is a way of settlement of civil disputes outside the court to reach a settlement by consensus with the help of a mediator. While mediation is based on the supreme court rule number 1 of 2008 is intended as an obligation for judges at first instance in the district courts and religious courts in the settlement dispute resolution is the authority of commercial courts as special courts general judicial. But the commercial court does not apply the obligations mediation. A study conducted by the approach of the laws and regulations. By considering the crime of copyright as higly relevant to a complaint mediation prior obligations imposed as a condition of doing criminal charges. Article 95 paragraph 4 of the law number 28 of 2014 on copyright, which requires the completion of mediation prior to file criminal charges has brought about a shift in the field of copyright criminal offenses into civil disputes. Thus the obligation of mediation in the settlement of copyright disputes is not only necessary for a criminal offense, but also expanded as a condition for completion in litigation in the commercial courts. Artikel ini melakukan kajian terhadap kewajiban mediasi sebagai syarat untuk melakukan tuntutan pidana atas pelanggaran hak cipta berdasarkan Pasal 95 ayat (4) UU No. 28 Tahun 2014 tentang Hak Cipta. Ketentuan mediasi dalam Undang-Undang No. 30 Tahun 1999 tentang Arbitrase merupakan cara penyelesaian sengketa perdata di luar pengadilan untuk mencapai penyelesaian secara musyawarah mufakat dengan bantuan mediator. Sedangkan mediasi berdasarkan Perma No.1 tahun 2008, ditujukan sebagai kewajiban bagi hakim pada pengadilan tingkat pertama di Pengadilan Negeri maupun Pengadilan Agama dalam rangka penyelesaian sengketa keperdataan. Penyelesaian sengketa hak cipta merupakan kewenangan Pengadilan Niaga, sebagai pengadilan khusus di lingkungan peradilan umum. Namun di Pengadilan Niaga tidaklah berlaku kewajiban mediasi. Kajian dilakukan dengan pendekatan peraturan perundang-undangan (statuta aproacht). Dengan mengingat tindak pidana hak cipta sebagai delik aduan sangatlah relevan dibebankan kewajiban mediasi terlebih dahulu sebagai syarat melakukan tuntutan pidana. Pasal 95 ayat (4) UU No. 28 Tahun 2014 tentang Hak Cipta yang mensyaratkan penyelesaian mediasi terlebih dahulu untuk mengajukan tuntutan pidana, telah membawa konsekuensi pergeseran tindak pidana bidang hak cipta menjadi sengketa keperdataan. Dengan demikian kewajiban mediasi dalam penyelesaian sengketa hak cipta (HKI) tidak hanya diperlakukan bagi tindak pidana saja namun juga diperluas sebagai syarat untuk penyelesaian secara litigasi di Pengadilan Niaga. DOI: 10.15408/jch.v5i1.6581

JUDICIAL REVIEW OF DECISIONS OF DISCIPLINARY TRIBUNALS OF VOLUNTARY ASSOCIATION: THE POST-1994 INTERPRETATION

The relationship between a voluntary association and its members is founded on a contract. The constitution of the association regulates the acquisition and termination of the membership of the association. The courts have always had the jurisdiction to hear disputes between members of the association, and they can also interfere with its decision if it has acted ultra vires, or in an instance where its decision was vitiated by bias. After the dawn of the new constitutional democracy, the Constitution became the supreme law of the Republic, and it enshrined the transformative clauses. Thus, the process of transforming the adjudication of disputes in the private sector has to be aligned with the values embedded in the Constitution. This article explains the review of the decisions of a disciplinary tribunal prior to and after the 1994 constitutional dispensation. This it does by discussing the effect of transformative constitutionalism on the review of disputes in the private sector. The relevant transformative clauses in the Constitution are discussed. More particularly, the article concentrates on the effect of the just administrative clause in the Constitution and the Promotion of Just Administrative Act (PAJA) in transforming the rules of natural justice. Furthermore, instances where the PAJA is applicable with regard to the decision of a tribunal of voluntary association, are explained. Finally, a conclusion is drawn on the post-1994 courts’ reviews of decisions of disciplinary tribunals of voluntary associations.

The Political Context of Judicial Review in Indonesia

Indonesia Constitutional Court will celebrate 12th birthday this August 2015, and it cannot be denied that the Court play significant role in securing democracy in Indonesia. In exercising their authorities, including the election result dispute and judicial review, the Court continue to affirm institutional judicial legitimacy and pursue their role to guard 1945 Constitution and continue to do so. The first Chief Justice Jimly showed how within five years of the Court’s creation, he could strategically maximise its momentum and build up the Court as a respectful institution. The Chief Justice Mahfud MD was then elected to reduce the judicial activism started by Jimly’s bench. However, against promises and expectations, Mahfud MD brought the Court to a level far beyond the imagination of the Constitution drafters. Parliament and President tried to limit Court’s authority, not ones, and the Court able to overcome those constrain. Current various available studies observed only how the Court issued their decision and solely focus to the impact of the decision. Scholars slightly ignore that study about the Court, by reducing other constitutional actor in Indonesia, produce study about the Court itself isn’t complete. In fact, political environment in which the Court operated at that time is one of utmost importance the strengthen of the Court institutional legitimacy. This paper is trying to discover the rise of the Indonesia Constitutional Court, not from what the Court did, but from political environment outside the court. Political parties realize that the Court is the only institution that act as political dispute resolution among them. Political parties maturity and political constraint are the key factor that support the development of the Court’s institutional power.

Administrative Justice in Brazil: A Judicial, Non Judicial or Hybrid Jurisdiction?

La version espanola de este articulo se puede encontrar en: http://ssrn.com/abstract=2390139 A versao em portugues deste artigo esta disponivel em: http://ssrn.com/abstract=2390775 Based on the institutional and procedural design of what is considered "administrative justice" in Brazil, and on the basis of on US judicial review, the text advocates a reinforcement of the administrative authorities, giving them prerogatives to act with effective independence, as a viable alternative to contending with excessive judicial review. Introduction. (i) Excessive judicial review of administrative disputes in terms of the number of cases and amounts at issue. (ii) Unsuccessful attempts to minimize the excessive judicial disputes. (iii) The origin of excessive judicial review of administrative disputes. 1) Are administrative decisions subject to due process of law? 2) Schizophrenic panorama of the Brazilian administrative jurisdiction. 3) Brazil's US-inspired monist judicial system and due process of law. 4) New perspectives for an effective administrative jurisdiction in Brazil. Conclusions.

Final Order of the Cauvery River - A Review Report

Water as a natural resource is a crucial requirement both for mankind and by and large progress of a nation. In 1992, the International Conference on Water and Environment at Dublin upheld its significance asserting 'fresh water is a finite and vulnerable resource essential to sustain life, development and the environment'. The current problem faced by the worldwide population is inadequate water supply exceeding the demand requirement. According to official source of UNICEF, about 50% of the world population lack access to clean water. The constant initiatives of sustainable water conservation unfortunately falls short taking into consideration extraneous factors like-population explosion, climate change, ever expanding industrialization and politicization of water. Similarly, in India which is crisscrossed by innumerable rivers of which chiefly fourteen being inter-state ones, water access and scarcity is an important concern. The river water, bone of contention, between the co-riparian states witnessed post Independence era, innumerable inter-state disputes like - Cauvery river conflict mainly between Karnataka and Tamil Nadu, Godavari water dispute between Andhra Pradesh, Maharashtra and Karnataka, Yamuna river dispute among Delhi, Haryana and Uttar Pradesh, Narmada river conflict between Gujarat and Madhya Pradesh, Ravi-Beas River dispute between Punjab and Haryana etc .However, the concerned paper will only confine its study to the Cauvery river dispute and critical review of the Final Award (2007) by the Cauvery Water Disputes Tribunal established in 1990 thereby excluding from its purview other inter-state river water conflicts. Following are few reasons for writing this particular problem: The Cauvery, lifeline of the Indian Peninsula, is a monsoon fed river unlike the North Indian rivers. The agriculture and economic life of people of Tamil Nadu and Karnataka turn around the river. Water shortage in the area unfavorably affects the food security of paddy cultivable areas. Further more, distress years often strike a death knell to quantum of water release by the upper riparian State like Karnataka to the lower riparian state like Tamil Nadu. In this perspective, it is a very serious socio-environmental issue characterized by failure of political negotiations and interference of central governments.The Cauvery river issue is an age old problem and still continuing for more than 120 years; whereas most inter-state river disputes is more or less settled. Till now, the legal path of the Cauvery disputes is not a smooth sail. Non observance with the award given by the tribunal (Cauvery River Water Disputes Tribunal) is not backed by strict sanctions and by rendering apology the political officials had taken the escapist route. Even after the final order, the petitions filed by the rival states are pending for hearing before the Supreme Court. Thus, the issue demands attraction undeniably due to its legal regulatory gaps. In this relevance, the present article will deal with the extent of future promise hold by the order in encouraging peaceful settlement among all the stakeholders. For convenience, the whole paper is divided into various parts. The First Part deals with the water jurisprudence of the inter-state river disputes. The Second Part will focus on the legal framework in India in relation to inter-state river disputes. The Third Part deals with a brief genesis of Cauvery river issue and significance of the Final Order. The Fourth and the Fifth Parts deal with the optimistic impact and critical analysis of the Final Order respectively. Finally, the last Part ends with suggestion and conclusion.

Should Constitutional Courts Adjudicate Political Disputes? The Perspectives of Democratization in Soviet Successor States

AbstractThis article explores the consequences and the opportunities of political involvement of constitutional courts in post-Soviet countries. The answers to this inquiry allow a discussion on institutional design alternatives that would help constitutional courts to better support democracy. The author identifies particular practical difficulties with the present institutional settings (referring to them as to a 'paradox of political empowerment') and investigates the options for addressing the limitations created by the described model. In particular, the article reconsiders the widely accepted opinion that constitutional designers should have abandoned the 'political' responsibilities of constitutional courts (such as review of electoral disputes, inter-branch conflicts of jurisdictions, etc.) in these countries for the sake of preserving their institutional survival and legitimacy. The author argues that these 'political' responsibilities are essential for enabling democratic contributions by constitutional courts, and two conceptual justifications are forwarded to support this proposition. In contrast to the suggestions to abandon the 'political' responsibilities, the article proposes to address the problem of constitutional courts' political involvement and the hazard of damaging their legitimacy by enhancing the discretion of constitutional courts through introduction of a sound 'political question doctrine'.

Enactment controversies: A critical review of current debates

This critical review of the current disputes concerning countertransference enactment systematically outlines the various issues and the perspectives adopted by the relevant psychoanalytic authors. In the light of this the ‘common ground ’ hypothesis concerning the unifying influence of contemporary countertransference theory is challenged. While the existence of enactments, minimally defined as the analyst’s inadvertent actualization of the patient’s transference fantasies, is widely accepted, controversies regarding the specific scope, nature, prevalence, relationship to countertransference experience, impact on the analytic process, role played by the analyst’s subjectivity, and the correct handling of enactments abound. Rather than taking a stand based on ideological allegiance to any particular psychoanalytic school or philosophical position, the author argues that the relative merits of contending perspectives is best evaluated with reference to close process scrutiny of the context, manifestation and impact of specific enactments on patients’ intrapsychic functioning and the analytic relationship. A detailed account of an interpretative enactment provides a context for the author’s position on these debates.

Православие и хозяйство. Обзор русскоязычных исследований, диссертационных работ, конференций, полемики по основным социально-экономическим доктринам РПЦ, XIX – начало XXI вв.

Православие и хозяйство. Обзор русскоязычных исследований, диссертационных работ, конференций, полемики по основным социально-экономическим доктринам РПЦ, XIX – начало XXI вв.

Two Faces of State University Employment: Ethics in Access to Federal Due Process

State universities have grown to become monumental enterprises generating revenues of more than $124 billion a year in the sale and delivery of education and other services. They compete in a marketplace composed of private secular, nonsecular and for-profit higher education institutions. In addition, state universities in their own right engage in a number of traditionally for-profit "business" enterprises competing with the private sector. However, as the enterprise aspect of state universities grows; so too does the impact of a unique competitive advantage enjoyed solely by state universities--that is, the ability of state universities to immune themselves from lawsuit in federal court under the guise of "sovereign immunity" for disputes arising under federal employment laws. Indeed, as a consequence of recent Supreme Court rulings, state agencies, including universities, are the only entities in the United States that are effectively exempt from the enforcement of federal employment laws in federal or state courts. This article reviews the condition of the "two faces" of the state university regarding federal employment law and the apparent new barriers to federal court access of employees to judicial review of employment disputes.

Problems on determining the jurisdiction of claims when appealing against state authorities and local self-government decisions in the land disputes field: genesis, features and notion

The issues of jurisdiction in disputes over appeals against decisions of state authorities and local self-government is one of the reasons for the ineffective implementation of these constitutional norms. The ascertainment of the issue of jurisdiction in a case in this category may be considered by courts of all three tiers and result in the closure of the proceedings in the case. Given that the issue of subject-matter jurisdiction in appealing against decisions of state authorities and local self-government in the field of land relations is poorly researched as a separate category of disputes, this article covers this issue.
 The author identifies three key stages in the formation and development of this group of disputes, which influenced the procedure for determining the subject-matter jurisdiction of disputes over appealing against decisions of state authorities and local self-government in the field of land relations. The first stage is the period of the formation of procedural legislation, allowing to appeal against the decisions and inaction of state authorities. The second stage is the stage of active formation of the practice of litigation over the choice of jurisdiction when appealing against decisions of state authorities and local self-government in the field of land relations. The third stage is the stage of deepening the law enforcement practice of litigation concerning the choice of jurisdiction when appealing against decisions of state authorities and local self-government in the field of land relations.
 The conducted research suggests that each of these stages has its own features, characterizing this group of disputes as a separate category of disputes has the following features:
 
 is formed from a derivative object related to the protection of the subjective land right or the realization of land legal personality;
 is always subject to judicial consideration within the stated claims, related to the protection of the subjective land right or the realization of land legal personality;
 creates independent legal consequences in the form of admission of the case to be considered in substance or revision of the made court decision or court decisions in the case, cancellation of the made court decision or court decisions in the case, and the closure of the proceedings in the case;
 has general and specific rules of application. General rules of application are stipulated by the requirements of the current procedural legislation, and specific rules have been formed by the case law in the judicial review of land disputes;
 the cases of this group at the stage of cassation are considered by the Grand Chamber of the Supreme Court, whose decisions are final and are not subject to appeal.
 
 Thus, disputes concerning the determination of jurisdiction when appealing against decisions of state authorities and local self-government in the field of land relations are a derivative category of disputes, which has its history of formation, forms an independent subject of judicial consideration and is based on the application of general and specific rules determined by, accordingly, the legislation and judicial practice.