Settlement Agreement Research Articles

FUQAROLIK SUD ISHLARINI YURITISHDA ADVOKAT ISHTIROKINING PROTSESSUAL JIHATLARI

This article highlights the role of the representative institution and the lawyer in civil proceedings in our country. The specifics of representation are described in terms of legal representation, contractual (voluntary) representation, representation of legal entities, representation of trade unions, and other public organizations. Thus, the lawyer has special rights of the plaintiff and the defendant: full or partial waiver of claims, change the basis or subject of the claim, increase or decrease the amount of the claim, recognition of the plaintiff’s claims, the conclusion of a settlement agreement. contract, to transfer authority to another person (entrust another person), to have the right to file an appeal against the decision (judgment) of the court, to issue a writ of execution for recovery, to receive the recovered property or money—the exact order of these actions is described in the article. The article analyzes the procedure for exercising the special powers of lawyers, provided by the decision of the Plenum of the Supreme Court of the Republic of Uzbekistan “On the application of the rules of civil procedural legislation on representation in courts.” Also, foreign experience, such as the practice of Düsseldorf and Munich, which are the rules of confidentiality of information in the procedural legislation of the Federal Republic of Germany, has been studied.

Implications of Climate Change Litigation for Environmental Law and Policy in Ghana

Purpose: The aim of the study was to examine implications of climate change litigation for environmental law and policy in Ghana Methodology: This study adopted a desk methodology. A desk study research design is commonly known as secondary data collection. This is basically collecting data from existing resources preferably because of its low cost advantage as compared to a field research. Our current study looked into already published studies and reports as the data was easily accessed through online journals and libraries. Findings: The study found that the implications of climate change litigation for environmental law and policy in Ghana underscore the urgent need for robust legal frameworks and adaptive policy responses to address the multifaceted challenges posed by climate change. While Ghana has made strides in enacting environmental legislation and participating in international climate agreements, the increasing frequency and severity of climate-related impacts necessitate greater legal clarity, enforcement mechanisms, and stakeholder engagement to enhance climate resilience and adaptation efforts. Climate change litigation provides a crucial avenue for affected communities, civil society organizations, and environmental advocates to hold governments and corporations accountable for their contributions to climate change and their obligations to protect the environment and uphold human rights. Unique Contribution to Theory, Practice and Policy: Legal Mobilization Theory, Policy Diffusion Theory & Ecological Modernization Theory may be used to anchor future studies on implications of climate change litigation for environmental law and policy in Ghana. Encourage strategic litigation that targets key actors, industries, and policy arenas to maximize the impact of legal interventions on environmental protection and climate action. This involves identifying leverage points within existing legal frameworks and leveraging innovative legal strategies, such as public trust doctrines and rights-based approaches, to advance environmental objectives. Foster greater integration of climate change litigation outcomes into national and international environmental policy-making processes. Governments and intergovernmental organizations should proactively incorporate legal precedents, court decisions, and settlement agreements into policy development, implementation, and evaluation.

Enforceability of agreements to mediate and mediated settlement agreements in Albania

The article aims to examine the provision of the Albanian Mediation Law that provides mediation as a condition for the admissibility of the lawsuit in court when the parties have provided for it in the contract as a preliminary condition before addressing the court. This legal provision is addressed considering the right of access to court and aims to discuss how these agreements to mediate are enforced. In addition, since enforcement of mediated settlement agreements is also a guarantee for the effectiveness and success of mediation, this article also focuses on the analysis of the legal framework and the problems related to their enforcement, which differ depending on how the parties have resorted to mediation (voluntarily, due to the contract, or by referral from the court), and on the type of disputes, where mainly problems arise with conflicts of ownership over immovable property. Besides the analysis of the Albanian Mediation Law, following a comparative approach, the article also addresses the mediation laws of some foreign countries.

Agreement on the results of mediation and settlement agreement in the field of land disputes

Agreement on the results of mediation and settlement agreement in the field of land disputes

Debt restructuring procedure of an individual

The article examines the procedure for restructuring debts of an individual in the process of bankruptcy. It is noted that the relevance of this article in the context of the procedure for restructuring the debts of an individual in the process of bankruptcy is determined by the need to understand and develop mechanisms that will allow debtors with financial difficulties to receive effective support and preserve their rights during such procedures. On the basis of judicial practice, it is determined that the restructuring of the debtor’s debts is the first, mandatory and priority stage of the case of insolvency of a natural person, in which the debtor can exercise the right to change the method and order of debt payment, taking into account his objective capabilities and desire to settle with by creditors, having guarantees of leaving part of the income to meet household needs and can receive forgiveness (write-off) of creditor claims or part of them. The mechanism of drawing up a plan for restructuring the debts of an individual is analyzed. It was concluded that the restructuring of the debts of an individual is the optimal way to end the bankruptcy case both for the individual and for his creditors, since his solvency is restored and debts are repaid. The procedure for restructuring the debts of an individual will be implemented on the condition that the debtor implements the restructuring plan on time and in full. Based on the analysis of judicial practice and legislation, including European countries, it is proposed to implement out-of-court debt restructuring of an individual, namely the approval of a restructuring plan based on a settlement agreement between an individual and creditors. It is argued that a general retreat from excessive formality and burdensome procedures in restructuring the debts of individuals in Ukraine can contribute to improving the efficiency of this process and protecting the interests of all parties. Such implementation will help to improve the efficiency and accessibility of the debt restructuring procedure of natural persons in Ukraine, contributing to solving financial difficulties of citizens and ensuring the stability of the country’s financial system.

Mediation as a 21st century conflict resolution mechanism: Exploring procedural fairness experiences of mediation users in Ghanaian courts

AbstractMediation has become a contemporary conflict resolution mechanism in the 21st century that offers an alternative to traditional legal processes. This qualitative study explores the experiences of mediation users in three courts in the Central Region of Ghana, with a focus on procedural fairness. Grounded in the theory of procedural fairness, the study examines how Ghanaian and African conceptions of fairness influence mediation practice. The study found that the Ghanaian and African understanding of procedural fairness is rooted in specific situations—taking into account parties' demands in generating settlement agreements, allowing parties to select their mediators, involving important personalities in mediation, ensuring the fair settlement of cases, and deciding who should speak first. Participants evaluated procedural fairness within the context of confidentiality, neutrality, party empowerment, and the assurance of being heard. These evaluations align with what has been reported in Western literature. This research contributes to the growing body of literature on conflict resolution by providing insights into the significance of procedural fairness within mediation practice, with specific reference to Ghana. The findings underscore the importance of aligning mediation processes with principles of procedural fairness, offering valuable lessons for practitioners, policymakers, and researchers who seek to optimize the efficacy and fairness of mediation as a conflict resolution mechanism.

An Outcome Evaluation of Private v. Public Mediation in Dispute Settlement Agreements

An Outcome Evaluation of Private v. Public Mediation in Dispute Settlement Agreements

THE ROLE OF THE POLICE AS MEDIATORS IN RESOLVING CRIMINAL CASES OF DOMESTIC PHYSICAL VIOLENCE THROUGH RESTORATIVE JUSTICE IN THE JURISDICTION OF THE BENGKULU CITY RESORT POLICE

Based on the data obtained in the resolution of criminal cases involving domestic physical violence through the restorative justice approach in the jurisdiction of the Bengkulu City Resort Police from 2019 to 2021, it has not been able to function optimally. This condition is because the police, particularly the investigators, await a settlement agreement between the parties involved and the withdrawal of complaints by the complainants. This condition raises the question of how the resolution through a restorative justice-based approach, carried out by the police as mediators, can be the best solution for resolving cases involving the parties through a restorative justice approach. This reason is what motivated the author to conduct this research. The methodology employed is empirical legal research, utilizing primary and secondary data. The data was analyzed qualitatively through a juridical lens, leading to inductive conclusions. Based on the results of this research, the following findings emerge: (1). The concept of restorative justice is employed in handling criminal cases with an emphasis on the integration of perpetrators, victims, and the community as a whole, seeking to find solutions and restore a positive relationship between the perpetrator of the criminal act. (2). The role of the police as mediators has yet to be optimally executed, primarily due to concerns and suspicions from the involved parties regarding potential bias by the police towards one party. Internally, the police have established regulations, such as the Telegram Letter from the Head of the Criminal Investigation Division Number S.T./583/VIII/2012 dated August 8, 2012. (3). Investigator's considerations as mediators in using the restorative justice-based approach to resolvedomestic physical violence within the jurisdiction of the Bengkulu Resort Police include the submission of peace agreements by both the victim and the perpetrator. This consideration is especially relevant in cases of minor physical violence, where the victim does not wish to prolong the case, and the interests of the victim in domestic violence are accommodated Keywords : Police Role, Mediator, Restorative Justice, Domestic Violence

Energy (in)justice in the green energy transition. The case of Fosen wind farms in Norway

In 2021, the Norwegian Supreme Court ruled that wind power licences issued in 2010 for two wind farms in the Fosen area near Trondheim violated the cultural rights of the local Sámi herders. The Fosen case is of interest as it demonstrates how policy intervention to honour the human rights of citizens to a healthy environment came into conflict with the indigenous human rights. Our study explores why this wind power project became a policy failure and what the Sámi achieved in terms of green energy justice through their legal and political struggles as well as settlement agreements. The green energy justice framework fails to address longstanding indigenous injustices and inequalities. Hence, it needs to recognise traditional knowledge, assess the historical context of the intervention, and include a veto right to indigenous minorities to ensure that their rights protected by Article 27 of the ICCPR are respected. The policy failure involved opposition among the Sámi herders to the intervention. The failure occurred as politics shaped the decision and decision-making process underestimated the impact on reindeer husbandry and ignored the objections raised by the Sámi herders. The Supreme Court ruling addressed the reasons for the policy failure and strengthened the indigenous dimensions of the green energy justice. The Sámi herders and their supports were unable to mobilise public media support for the removal of the windmills to undo the human rights violation. Hence, the settlement agreements included distributional justice in the form of monetary compensation and the recognition of their need for new land for winter grazing as well as strengthening of their procedural justice with granting of a veto right on future licenses of the two wind farms.

Коллективные иски в гражданском процессе

The article contains the result of a study conducted by the author on the institution of class actions in civil proceedings. The author has documented the trend of using class actions to protect the violated rights and legitimate interests of a group of people. Certain areas for improving the legislation on class actions in civil proceedings have been identified. Firstly, the specifics of suspending proceedings on an independent claim of a member of a group of people who refused to join the class action. Secondly, the apparelment of considering a class action for compensation for moral damage. Third, the consequences of concluding a settlement agreement in civil case of class action. In relation to these areas, the author has put forward proposals for improving the current provisions of the Civil Procedure Code of the Russian Federation.

Наделение юридическим действием медиативных соглашений с иностранным элементом в России: текущее состояние и перспективы развития

The article examines the indirect and direct approaches of granting the legal effects to the terms of the mediated settlement agreements with a foreign element subject to the Russian existing and future legislation. Every approach research concerns the examination of judicial, arbitration and notarial ways of granting legal effects to such agreements. The suggestions for Russian law development correspond to the elicited defects of the current legal situation. It is concluded, that further research of the current and future legislation in the field of granting the legal effects to the mediated settlement agreements with a foreign element will promote effective vindication of subjects of law legal interests.

Conceptualising State-Centric Mediation: An Analysis of China's Foreign Investment Complaints Mechanism

AbstractThis article argues that China's foreign investor complaints system constitutes ‘state-centric investment mediation’. The Rules on Handling Complaints of Foreign-Invested Enterprises, which entered into force on 1 October 2020, place a state agency in the position of facilitating negotiations between a foreign investor and the agency being complained against. The prospects for this complaints system depend on how the state-as-mediator dynamic is perceived by foreign investors. To this end, it will be argued that settlement agreements reached pursuant to this system may be enforceable under the Singapore Convention on Mediation in certain circumstances. Investors and government entities operating similar systems worldwide should be cognisant of the broad drafting terminology of the Singapore Convention. Moreover, it is proposed that further clarification of the procedural rules and the inclusion of China's foreign-related dispute resolution institutions may enhance investor confidence and encourage use of the complaints system.

Electronic dispute resolution in business: Opportunities for implementation in Kazakhstan

Relevance. The relevance of conducting a study on alternative dispute resolution between business entities stems from the fact that the current processes of digitalisation and globalisation have extended the opportunities for the introduction of innovative technologies in court proceedings. Purpose. Among the key tasks and objectives of the study was the analysis of the mechanism for implementing electronic dispute resolution in business activities, highlighting its characteristic features and the principles on which this activity is based. Methodology. The methods used in the present study are the theoretical-methodological approach, the functional methodological approach, the method of legal hermeneutics, the dogmatic methodological approach, the method of synthesis and others. Results. The study analysed the specifics of the implementation of mediation as an electronic dispute resolution method in business. International practices have been analysed and the advantages and disadvantages of implementing an electronic dispute resolution mechanism in the business sector have been highlighted and recommendations have been made to make the implementation of the mechanism in Kazakhstan more effective. To complete the analysis, statistical data were reviewed, based on dispute resolution by courts of general jurisdiction and the Specialised Inter-District Economic Court in comparison to the methods they use, and analysis was carried out on the use of mediation and settlement agreements, as well as through the use of online systems. Conclusions. A scientific study of electronic dispute resolution reveals that integrating innovative communication technologies into legal proceedings significantly enhances traditional dispute resolution methods. Electronic dispute resolution can address conflicts ranging from interpersonal disputes to state-level conflicts and is particularly beneficial for business disputes. The practical value of the findings is that the introduction of an effective e-justice mechanism will provide an opportunity to protect the rights of entrepreneurs and conduct this type of activity in the Republic of Kazakhstan. Keywords: protection of entrepreneurs; mediation; arbitration; foreign economic disputes; electronic justice; negotiations

Aftermath of a Storm: Women and Reparations for Residential School Abuses

This article is an effort to explain how a gender-specific (women only) community-based research project, working in partnership with an Indigenous women’s organization, made visible issues of gender, sexuality, and race in the Indian residential school (IRS) compensation claims process. The study focused on the Independent Assessment Process (IAP), which involved an out-of-court adjudication whereby IRS Survivors gave oral testimony to an adjudicator about serious physical and sexual abuses they experienced at IRS and the consequential harms. The IAP was a key part of the IRS Settlement Agreement. The article discusses the IAP in the context of Canada’s colonial history, and then it provides, through results of a community-based study, insights from Survivors, support workers, and adjudicators. The study demonstrated how the absence of a gender lens in legal policy and practices can create unfair bias and, conversely, how attention to gender, sexuality, and race can assist in mitigating colonial or settler bias. The article was inspired by a 2014 Queen’s University Faculty of Law conference in honour of the late Dr. Patricia Monture.

Free movement of mediators across the European Union: a new frontier yet to be accomplished?

Background: This article explores the challenges that stem from the existing national legislation in the field of mediators’ profession regulations on an EU level. It identifies some professional and training requirements in this area and analyses their impact on the freedom and quality of the mediation services offered from one Member State to the other. It further outlines the variety of regulatory models and accreditation practices that apply towards mediators having been certified in the Union or third countries and puts this in the context of spreading mandatory mediation models. The authors explore the different procedures that apply to training and accreditation to see the similarities and differences in the professional standards that apply and their impact on the mediation settlement agreements reached. Methods: Research commenced with a review of the existing scientific literature, a brief overview of the national regulation on the mediators’ profession, and a document analysis concerning the recognition and accreditation of mediators in the EU. This was followed by a comparative study of training requirements and court-related mediation procedures that exist in a number of jurisdictions like Bulgaria, Lithuania, and Italy to highlight some of the main differences. Results and Conclusions: The analyses of the existing national legislation in the field of mediators’ profession regulations on an EU level showed that it is hard or nearly impossible for mediators trained in one EU Member State to render mediation services in other Member States. The existing regulations, coupled with the diverse national training requirements, call for adopting uniform training standards with a synchronised and applicable curriculum across all states. The authors see this as one of the ways to increase the trust in the quality of the mediation service to be of a certain fixed standard and to support the numerous mandatory mediation schemes which in cross-border disputes raise the question of the suitability of the mediator assisting parties in such a dispute resolution process.

Enhancing Legal Certainty for Consumers in Apartment Unit Trade: A Comparative Analysis of Dispute Settlement Agreements in Indonesia and the Netherlands

The purpose of this study is to analyze the dispute settlement binding Trade Agreement (PPJB) unit flats through litigation in Indonesia compared to the Netherlands and to analyze the reconstruction of the law in dispute resolution PPJB in Indonesia to provide legal certainty. The main problem in this paper is that the dispute resolution of the binding Trade Agreement in Indonesia has not provided legal certainty due to court decisions that are difficult to implement due to weak supervision. This research method is normative research with a comparative approach. The urgency of this study is that 276 PPJB disputes in Indonesia are resolved through the courts are difficult to implement. The novelty of this study lies in the researchers ' efforts to reconstruct the law of flats, especially in the implementation of PPJB dispute court decisions. The results showed PPJB dispute settlement unit flats through litigation, experienced obstacles in the application of the judge's ruling, which won the consumer as the injured party. The obstacles to the application of the ruling do not provide legal certainty for consumers. In the Netherlands, the settlement of flat sale and purchase disputes is carried out through non-litigation channels that are more effective in providing legal certainty. Legal reconstruction in PPJB dispute resolution in Indonesia to provide legal certainty that is to accommodate the provisions of supervision for putting the court's decision into action or arbitration decisions in PPJB dispute resolution, as outlined in the provisions of Article 105 of the flats law.

A Settlement Agreement in Civil Process as Ensuring of the Principle of Dispositiveness

The article is devoted to the analysis of the settlement agreement as a guarantee of the principle of dispositiveness in the civil process. However, substantive law is the basis for any procedural legal relations. Thus, the civil procedural principle of dispositiveness is an analogue of the principle of freedom in civil law. The principle of dispositiveness in the civil procedural sense means the possibility for the parties of the case to dispose their rights regarding the subject of the dispute at their own discretion. Dispositivity in the civil law sense is the freedom to perform procedural actions freely, without coercion. Dispositiveness in civil proceedings means that the parties to civil proceeding have the right to waive their claims against each other at any stage of the trial by waiving or admitting the claim, or by entering into a settlement agreement. The conclusion of a settlement agreement by the parties at any stage of the court proceedings is an ensuring of the principle of dispositiveness - the freedom to freely dispose of one’s procedural and material rights.
 Researched that settlement agreement is a reconciliation mechanism and the result of an agreement between the parties. The purpose of concluding a settlement agreement is to settle the dispute on the basis of mutual concessions and should concern only the rights and obligations of the parties. Also, the parties can go beyond the scope of the dispute, provided that the settlement agreement does not violate the rights or legally protected interests of third parties. The settlement agreement is a mixed contract, as it is regulated simultaneously by two branches of law - civil and civil procedural. In this regard, the norms relating to bilateral deed, civil obligation and civil agreement may be applied to the settlement agreement. The common features between these concepts in relation to the settlement agreement are that the settlement agreement is a bilateral agreement with a specific subject, parties, rights and obligations, and form. The settlement agreement is also considered concluded from the moment the parties have reached all essential conditions, which characterizes it as a consensual civil law agreement. The essential conditions of a settlement agreement as a civil law agreement are the condition about the subject and terms. All of the above means that due to its legal nature, the settlement agreement has both procedural and substantive legal features.

Peace agreement (reconciliation) in civil and administrative jurisdiction: a comparative aspect of the study

The article is devoted to a comparative legal study of the institution of settlement agreement (conciliation) in the fields of civil procedural and administrative procedural law.
 The main purpose of the article is to highlight the significance of the settlement agreement in civil and administrative processes. Attention is drawn to the fact that when a settlement agreement is concluded and approved by the court, the parties have the right to independently choose a way out of the conflict situation, while the court is released from the obligation to review the merits of the case for which proceedings have already been opened. The value of the settlement agreement is to encourage the parties to voluntarily fulfill their obligations, thereby reducing the burden on enforcement agencies. Therefore, the right to conclude a settlement agreement in administrative and civil processes is an important procedural tool that contributes to the successful protection of the rights and interests of the participants in the process and the parties to the case, as well as relieves the court’s activity in considering court cases.
 A comparison of the normative and legal regulation of the settlement agreement by the norms of the Civil Procedure Code of Ukraine and the Code of Administrative Procedure of Ukraine is carried out. The commonality of legislative approaches in solving such issues as who can conclude a peace agreement (reconciliation) is noted; the possibility of the parties to go beyond the scope of the dispute when concluding a settlement agreement (conciliation statements); availability of a written settlement agreement (reconciliation) of the parties; the court’s duty to explain to the parties the procedural consequences of approving a settlement agreement (reconciliation); the court’s obligation to check the terms of the settlement agreement (reconciliation) before approving them; fixing the terms of the settlement agreement (reconciliation) in the court decision, which simultaneously closes the proceedings in the case; the presence in most cases of identical reservations regarding the impossibility of approving a settlement agreement (reconciliation) of the parties, etc. On the other hand, distinctive features of the normative regulation of the settlement agreement and the reconciliation of the parties in civil and administrative proceedings, respectively, are noted. Based on this, it is proposed to improve domestic legislation in the field of civil and administrative jurisdiction.

Judicial communication while approving a settlement agreement in bankruptcy case

The article analyzes the court role while approving a settlement agreement in a bankruptcy case. The implementation of the active component of this role makes the court a subject of proof and а subject of communication in the case. Recently, both the legislator and the law enforcer are inclined to limit the adversarial and dispositive principles in favor of the active role of the court in civil litigation. This trend is most pronounced in bankruptcy proceedings. Particular attention to bancruptcy cases dealt to their social significance, due to the multiplicity of diverse interests, that take place in bankruptcy procedure.The article discusses the controversial judicial practice that exists in the modern legal field. Author concludes that the settlement agreement in the bankruptcy case cannot be limited either strictly by the concept of “settlement agreement” or — “bankruptcy procedure”.

ԱՊՕՐԻՆԻ ԾԱԳՈՒՄ ՈՒՆԵՑՈՂ ԳՈՒՅՔԻ ԲՌՆԱԳԱՆՁՄԱՆ ՀԱՅՑ ՀԱՐՈՒՑԵԼՈՒ ՀԻՄՔԵՐԻ ՈՒՍՈՒՄՆԱՍԻՐՈՒԹՅՈՒՆԸ ՀԱՇՏՈՒԹՅԱՆ ՀԱՄԱՁԱՅՆՈՒԹՅԱՄԲ ԱՎԱՐՏԵԼԸ

The procedure for the confiscation of property of illegal origin is a civil procedure designed to confiscate property acquired through criminal activity. It encompasses not only the confiscation of property through a court decision but also allows for the voluntary transfer of illegally obtained property to the state through a settlement agreement. This article explores the requirements and criteria for settlement offers, presented by the authorized body. It highlights the unique characteristics that differentiate settlement agreements from agreements reached in other legal proceedings, considering the nature of the legal relationship and the state’s interest. The article emphasizes the importance of guaranteeing the rights of individuals involved in the proceedings in the context of submitting an agreement offer by the authorized body. It references the order of the General Prosecutor of RA that establishes the procedure for concluding a settlement agreement and defines the scope of issues to be addressed within this framework. The author suggests regulating a special procedure for court approval of prejudicial settlement agreements through the RA Civil Procedure Code. Additionally, the proposal includes introducing the possibility of partially concluding the investigative phase by reaching a settlement agreement. These suggestions aim to facilitate the amicable completion of the investigation phase and enhance the effectiveness of court proceedings related to the confiscation of property of illegal origin.