Traditional Dispute Resolution Research Articles

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

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

Review of Arbitral Award of Network Loan and Analysis of Construction of Implementation Review Rules

The network arbitration cases arising from the network lending disputes are pouring into the courts in large numbers. It is reported that the network arbitration system of some arbitration institutions even “can accept more than 10,000 cases every day,” while online lending is booming, it has also caused a lot of contradictions and disputes, and traditional dispute resolution methods have failed to effectively respond to the need for efficient and convenient resolution of online lending disputes. This paper tries to study the arbitral award of online loans and proposes the construction of implementation review rules.

Enhancing Construction Claims and Dispute Resolution in the Nigerian Building Sector: Insights from Thematic Analysis.

The study investigates the mechanisms of construction claims and dispute resolution within the Nigerian building sector, employing a thematic analysis to uncover insights that could enhance these processes. The research methodology involved semi-structured interviews with professionals from leading construction companies in Abuja, Nigeria. Participants were selected through purposive sampling, ensuring they possessed relevant experience in managing construction claims and disputes. The data collected was rigorously analyzed using thematic analysis, which facilitated the identification of prevalent challenges and the evaluation of current dispute resolution methods. The findings reveal that contractual ambiguities, communication failures, and cultural differences are the primary sources of disputes, leading to significant project delivery issues such as cost overruns, schedule delays, and quality defects. Traditional dispute resolution methods, including negotiation, arbitration, and litigation, are commonly utilized, yet the study identifies a notable gap in the adoption of Alternative Dispute Resolution (ADR) techniques. Barriers to ADR implementation, such as lack of awareness and trust among professionals, were highlighted. The study contributes to knowledge by providing a comprehensive understanding of the dispute sources and by evaluating the effectiveness of existing resolution methods. It also offers strategic recommendations for the development of a structured framework for claims management, tailored to the Nigerian context. The implications of this research are far-reaching, suggesting improvements in contractual clarity, communication training, and policy reforms that could significantly benefit the construction industry.

The Ways to Overcome Sanction Pressure: from External Management to Payment of Compensation under the Rules of International Treaties

Sanctions which were imposed by unfriendly nations on the Russian state, legal entities and individuals are unilateral coercive measures which have no basis in international law. They are indiscriminate since they apply to large groups of individuals and legal entities on the basis of their nationality. They are aimed at infringing on the sovereign rights of the Russian state and changing its policy. For compensation of losses which Russian companies have suffered abroad the latter should be provided with the opportunity to demand that the assets of foreign companies from the relevant unfriendly jurisdictions should be transferred to the external management of the Russian companies. Russian investors are also entitled to seek protection under international investment treaties due to the fact that the expropriation of their property was carried out without legal grounds and without payment of prompt, effective and adequate compensation. The legal reality which exists in relations with unfriendly countries demonstrates the crisis of traditional dispute resolution mechanisms and the necessity for establishing new effective international instruments.

The role of traditional institutions in conflict resolution among Okija people

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

STAKEHOLDER-INVOLVEMENT IN WATER RESOURCE RELATED CONFLICT MANAGEMENT IN LAKE TURKANA BASIN OF KENYA

Lake Turkana is the largest permanent desert lake in the world and a crucial water source in Turkana County, sustaining thousands of livelihoods. The ethnic groups are primarily nomadic pastoralists. The region is heavily prone to perennial water resources related conflict resulting into perennial displacement of human beings and animals. Prior studies established that perennial resource conflict is fuelled by stakeholders. The study aimed to determine stakeholders' participation in managing water resource conflict in Kenya's Lake Turkana Basin. A descriptive research design anchored on negotiation theory was applied. A sample of 36 respondents were contacted through a structured questionnaire, Key Informant Interview (KII) schedule, observation guide and Focused Group Discussions (FGDs). The study revealed limited stakeholder exposure to conflict management and biased participation. The study concluded that stakeholder involvement and poor stakeholder identification bred water resource related conflict. In matters conflict management, the under-developed road structures and poor communication facilities make it difficult to mobilize people in the vast lake basin The study recommends broader stakeholder inclusion in future conflict management, applying Alternative Dispute Resolution (ADR) methods such as enhanced traditional dispute resolution mechanism, mediation and negotiation.

Features of Online Settlement of Consumer Disputes by e-commerce Platforms in the People’s Republic of China

Objective: to research the features of online dispute settlement by e-commerce platforms in the People’s Republic of China, to reveal positive features and drawbacks of ODS technologies applied by the platforms.Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic. Specific scientific methods were used: legal-dogmatic and the method of legal norms interpretation.Results: it was found that the internal ODS model on e-commerce Taobao ODS platforms is a direct, clear and effective means of online resolution of consumer disputes. However, being a non-independent “third party”, the internal ODS mechanism of e-commerce platforms will never be able to substitute other external systems of dispute resolution. ODS relies on the data and Internet processes much stronger than traditional dispute resolution. Among the many safety factors emerging as a result of online processes, ODS creates the risk of data leakage, lack of confidentiality and unsafe consumer protection. ODS also causes concerns due to traditional principles of justice such as objectivity, confidentiality and safety of data in the process of dispute settlement. Not only the People’s Republic of China but any country introducing the ODS technologies into the procedures of dispute resolution should take serious measures to ensure the ODS processes are just, unbiased and guarantee observance of procedural rights. Scientific novelty: consists in a complex research of online dispute settlement by e-commerce platforms in the People’s Republic of China, the practice of implementation thereof has its specific features stemming from the model of self-regulation of thee relations, further stipulated by normative legal acts of the People’s Republic of China and reflected in the activity of private ODS platforms.Practical significance: is due to the current absence of possibility to apply the legal norms and rules, taking into account the specific features of ODS technologies on private platforms, to the relations using such technologies. The main provisions and conclusions of the research can be used to improve the mechanisms of legal regulation of ODS technologies in the procedural legislation of the Russian Federation.

Traditional Dispute Resolution through Lekgotla: The Approach of the Bakgatla Ba Mosetlha in the North West Province of South Africa

Traditional Dispute Resolution through Lekgotla: The Approach of the Bakgatla Ba Mosetlha in the North West Province of South Africa

Baseball Arbitration as a Suitable Alternative for Construction and Real Estate Disputes

Baseball Arbitration (or Final Offer Arbitration (FOA)) is a dispute resolution mechanism to resolve controversies where each party submits a final offer. The arbitral tribunal must then decide by picking only one of these proposals. Given the arbitrators’ powers’ limitations, these proceedings are usually shorter and less expensive than traditional dispute resolution mechanisms. In addition, contrary to conventional arbitration, parties tend not to assume unrealistic or extreme positions, which could promote amicable settlement since it is an all-or-nothing proceeding. FOA could effectively resolve monetary disputes in industries where parties seek to preserve the commercial relationship while avoiding unnecessary delays. Therefore, Baseball Arbitration could be advantageous in the construction and real estate sectors. However, most arbitral institutions do not have specific rules for conducting Baseball Arbitration proceedings. This article proposes a model clause for parties wishing to submit their disputes to FOA. In our proposal, the arbitrator will receive the parties’ final offers and then issue its reasoned award, asserting the rationale to choose one offer over the other. Arbitration, Baseball Arbitration, Final Offer Arbitration, ADR Mechanisms, Construction Disputes, Construction Arbitration, Real State Disputes, Real Estate Arbitration, Model Clauses

Restorative Justice through the Application of Traditional Dispute Resolution Mechanisms in Criminal Matters

Restorative Justice through the Application of Traditional Dispute Resolution Mechanisms in Criminal Matters

Give Full Play to the Role of People's Mediation System in Campus Sports Injury Disputes

Due to the drawbacks of the traditional dispute resolution methods and the difficulties faced by the campus sports injury arbitration system, people's mediation has its unique advantages in the campus sports injury disputes and has the necessity to expand its application in the campus sports injury disputes. People's mediation should pay attention to the combination of autonomy, the rule of law and the rule of virtue, and attach great importance to the private rights relief of both parties, so as to achieve the fundamental settlement of disputes. In the construction of the procedural approach of campus sports injury disputes, we should deeply consider the three aspects of mediation mode, mediators and identification procedures. Through empirical research methods, the above questions are answered one by one in the paper.

Communicating cultural identity in the management of forest related conflicts in Eastern Mau, Kenya

AbstractConflict behavior is thought to result from attitudes. Attitude which is a tendency to favor or disfavor is thought to be a function of perceptions. Perceptions are influenced by our cultural identity. In Kenya, different communities have been involved in violent identity conflicts which peaked in 2007/2008 during the post‐election violence. The role of politics and natural resource competitions as sources for conflicts in Kenya has been widely exposed. This paper enriches the discourse on manifestation of conflict by an in‐depth analysis of how cultural identity is communicated drawing examples from communities residing adjacent to Eastern Mau forests complex in Kenya. The main research question is that, since inter‐group conflict involves identity competition, how are attitudes expressed in this context? Qualitative data sources were obtained for this study through key informant interviews and Focus Group Discussions. Data analysis was through thematization, content and linguistic analysis. Results from this study reveal that conflicts involving different ethnic communities have escalated over time. The study further reveals that attitudes are expressed through figures of communication such as stereotypes and nicknames, metaphors, and naming of places. Conflicts in Eastern Mau seemed to persist, vacillating between periods of relative peace and periods of escalation. Mediation has been proposed in recent literature as a sustainable solution for intractable conflicts. This paper suggests that more research is needed on traditional dispute resolution in Eastern Mau with a view to understanding how mediation could be integrated in the existing formal conflict resolution in the study area and beyond.

Bapalas as Alternative Dispute Resolution of Fighting on Muslim Dayak Community in Muara Teweh, Central Kalimantan

This study discusses the tendency of the Muara Teweh Muslim Dayak community, who prefers bapalas in resolving fighting disputes over other legal remedies. Bapalas is a traditional dispute resolution of fights with the help of mantir and community leaders and is attended by the families of both parties. In the Dayak community, there are various bapalas, such as midwives bapalas, marriages bapalas, births bapalas, death bapalas, and fights bapalas. This research focuses on studying the fight bapalas as an alternative dispute resolution for fights in the community. Fighting is part of criminal law, usually resolved through litigation by repressive settlements. However, it is different in the Muslim Dayak community in Muara Teweh. They prefer to settle the dispute through this bapalas tradition. The research was conducted using empirical legal research methods using an Islamic law approach. The theory used is the theory of ‘urf and the concept of iṣlāḥ in Islam. The study result indicates that the Muslim Dayak community in Muara Teweh prefers this settlement because, first, it has become customary law that has been passed for generations. Second, bapalas minimize the grudges between the conflicting parties. Third, compared to other resolutions, primarily through litigation, bapalas are much easier dan more effective in resolving conflicts, especially in terms of time. This dispute resolution model aligns with Islamic law according to 'urf and the concept of Islam.‘Urf can be a source of law as long as it does not conflict with sharia and is in line with the sadd al-żarī‘ah method, which means if the customs in society can prevent or block the harm, then it is allowed. It is also in line with the concept of iṣlāḥ that bapalas is a conflict resolution method that can eliminate and stop hostility and conflict between humans.

Could traditional dispute resolution mechanisms be the solution in post-colonial developing countries – particularly in Africa?

This paper deals with the possible role that traditional dispute resolution mechanisms can play in reducing the burden of too much litigation in post-colonial countries – particularly in Africa. The importance of such mechanisms has been recognized by the United Nations and by the constitutions and laws of many African countries. The paper addresses the issue of the effect a paucity of lawyers in African countries might have on the litigation in such countries. The approach and methods of traditional dispute resolution in Africa are discussed and the question raised whether such traditional dispute resolution mechanisms can be integrated into the Western approach to dispute resolution in order to reduce litigation. The challenges facing such integration are also addressed. The article concludes that traditional methods of dispute resolution are already reducing the burden of too much litigation, but further research using statistical and empirical data should be undertaken to substantiate this.

Decentralized Justice: A Comparative Analysis of Blockchain Online Dispute Resolution Projects

In recent years, the digital economy has experienced a growing number of transactions. Traditional dispute resolution methods such as court and international arbitration are ineffective for handling a large volume of small value claims across national borders. Decentralized justice is a new approach to online dispute resolution that combines blockchain, crowdsourcing and game theory in order to produce resolution systems which are radically more efficient than existing methods. This article offers a review of the decentralized justice industry and of the key players participating in it. It presents a number of key dimensions of the industry and reviews the mechanism design choices made by these different platforms. Finally, it discusses a growth hypothesis for the industry and how it may grow in the future.

Building on “Traditional” Land Dispute Resolution Mechanisms in Rural Ghana: Adaptive or Anachronistic?

Despite the ongoing land administration reforms being implemented across sub-Saharan Africa (SSA), including Ghana, as a viable pathway to achieve tenure security and greater efficiency in land administration, the subject of land dispute resolution has received relatively less attention. Whereas customary tenure institutions play a central role in land administration (controlling ~80% of all land in Ghana), they remain at the fringes of the formal land dispute adjudicatory process. Recognising the pivotal role of traditional institutions as development agents and potential vehicles for promoting good land governance, recent discourses on land tenure have geared toward mainstreaming traditional land dispute institutions into the architecture of the formal judicial process via alternative dispute resolution pathways. Yet, little is known, at least empirically, as to the operations of traditional dispute resolution institutions in the contemporary context. This study therefore explores the importance of traditional dispute resolution institutions in the management of land-related disputes in southcentral and western Ghana, drawing on data collated from 380 farming households operating 746 plots. The results show that contrary to the conventional thinking that traditional institutions are anachronistic and not fit for purpose, they remain strong and a preferred forum for land dispute resolution (proving resilient and adaptable), given the changing socio-economic and tenurial conditions. Yet, these forums have differing implications for different actors within the customary spheres accessing them. The results highlight practical ways for incorporating traditional dispute resolution in the overall land governance setup in Ghana and elsewhere in sub-Saharan Africa. This has implications for redesigning context-specific and appropriate land-use policy interventions that address local land dispute resolution.

Effectiveness of the Conflict Management Mechanisms in Land Use Conflicts in West Pokot County, Kenya

West Pokot County, Kenya has experienced land use conflicts for a very long time. Land is a very important resource for pastoralists and agropastoralists’ livelihood. Formal Conflict management mechanisms were established to manage land use conflict in West Pokot County however, the conflicts persisted. The Constitution of Kenya 2010, transformed the conflict management mechanisms by integrating the formal and the informal mechanisms. The judiciary system of conflict management was complimented by the alternative dispute resolution mechanisms and the traditional dispute resolution mechanisms. Despite the integration of the formal and informal conflict management mechanisms, land use conflicts have persisted in West Pokot County, Kenya. Therefore, this study explored the effectiveness of the conflict management mechanisms in transforming land use conflicts in West Pokot County. The study used the conflict transformation theory to analyze the effectiveness of the conflict management mechanisms in transforming land use conflicts in the county. It used both descriptive and explanatory research designs to give the actual picture and explanations of the effectiveness of the conflict management mechanisms in West Pokot County. The questionnaire, interview schedule, focused group discussion and observation schedules were used to collect data primary data. This study used the SPSS to analyze quantitative data while qualitative data was analyzed using qualitative analysis. The findings of the study shows that the conflict management mechanisms in West Pokot County are not effective in the transformation of land use conflicts. Complete implementation of the conflict management mechanisms will improve the transformation of land use conflicts in West Pokot County. Keywords: Conflicts, Mechanisms, Management, Land-use, County DOI: 10.7176/RHSS/11-4-02 Publication date: February 28 th 2021

Legal Protection of Land Right Holders Against The Establishment of The Rechtsverwerking Institution

The purpose of this research is to investigate the implementation of rechtsverwerking (waiver of right) institution and to investigate the legal protection for land rights holders because of the implementation of the rechtsverwerking institution. The current research approach is a normative-empirical juridical approach. This type of research is live case study research (especially the implementation of rechtsverwerking legal institutions in Biak Numfor District), implementing normative legal provisions that refers to certain legal events occurring in a society. The data collection technique carried out by studying literatures with respect to various regulations and other related documents for this current research. Qualitative analysis is employed in analyzing the existing data. The research findings demonstrated that Biak’s Regional Land Agency has not fully implemented Law No 5/1960 concerning Basic Agrarian Regulations and Government Regulation No. 24/1997 concerning Land Registration. In addition, some land disputes (customary land) are resolved through traditional law (adat law), holding traditional rituals to honor the ancestors. Traditional dispute resolution is represented to Rechtsverwerking institution.

Mediation in civil proceedings during the COVID-19 pandemic

The article deals with the problems of implementation of the mediation procedure in civil proceedings and the technical possibilities of distance mediation, prospects for implementation, as well as the legal and social consequences of using this method of dispute resolution during the COVID-19 pandemic. The authors emphasize the importance and necessity of using distance mediation, especially during the COVID-19 pandemic, as it allows resolving civil cases without a health risk. Emphasis is placed on what difficulties may arise in choosing this particular way for resolving the dispute and possible ways to overcome them. It is noted that many problems arise, primarily due to the fact that mediation has not yet found its place in a separate law. The article gives a detailed analysis of how a mediator can ensure the confidentiality of the procedure and which his actions are possible if it is impossible to conduct it remotely. In contrast to mediation, which due to the flexibility of the procedure can take place remotely, a parallel is drawn with the traditional dispute resolution, in courts, as well as the reasons for the ineffectiveness of distance format in choosing this method and the advantages of mediation in this case. It is spoken in detail about the issue of conducting mediation in other countries and shown the conclusions, which summarize the solutions for overcoming problems, their effectiveness and experience for Ukrainian mediators, which can be borrowed from foreign professionals. Examples of solving the problems, caused by the pandemic, in distance mediation considered by the examples of France, the United Kingdom, and some states of the United States. The article draws attention to the fact that civil cases are best resolved through the mediation procedure, and under quarantine - remotely. It is emphasized that civil cases often meet all the criteria of the eligibility for mediation in contrast to criminal, economic, administrative cases and cases of administrative torts.

Lekgotla and Idiomatic Expressions in Traditional Dispute Resolution: The Case of Makapanstad, North West Province, South Africa

The importance of traditional dispute resolution is embedded in the culture of a people. Idiomatic expressions seek to harmonise the process of lekgotla and to heal the families involved in disputes. As a cultural system and a process that is different from the Western courts, lekgotla relies heavily on the use of idiomatic expressions as important guidelines and tenets that are utilised to unravel the complexities and challenges presented by participants in the lekgotla processes. Lekgotla is an African system of dispute resolution in its own right; however, it is subsumed in the South African national legal system, which is colonial in letter and spirit. This article aims to discuss the interrelations between lekgotla and idiomatic expressions in traditional dispute resolution as used by the Bakgatla Ba Mosetlha traditional council in Makapanstad village, North West province, South Africa. The interrelations between lekgotla and idiomatic expressions constitute a complex process with the aim of bringing families together to negotiate, confess, forgive, compensate, heal, and engage in a ceremony that restores harmony in the community. Culture is at the core of this interaction between lekgotla and idiomatic expressions, with the goal of enhancing traditional dispute resolution. Fifteen key village leaders (traditional council members) in the community of Makapanstad were the primary sources for this study. The key idiomatic expressions shared in this article, and as utilised by these village leaders, focus on maintaining the human relationships in the community.