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Journal articles on the topic 'Dispute resolution; Litigation'
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1
Wibowo, Afrizal Mukti, Sukarmi Sukarmi, and Siti Hamidah. "ANALISIS YURIDIS KEWENANGAN PENYELESAIAN SENGKETA PEMBIAYAAN KONSUMEN DI INDONESIA." Legality : Jurnal Ilmiah Hukum 27, no. 1 (July 22, 2019): 41. http://dx.doi.org/10.22219/jihl.v27i1.8957.
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Consumer financing disputes can be resolved by litigation and non-litigation. However, the choice of dispute resolution raises an competence dispute between dispute resolution institutions. Thus giving rise to legal uncertainty and losses for the parties to the dispute. The purpose of this study is to analyze the competence of consumer financing dispute resolution institutions in Indonesia. This research is a normative juridical approach with a legal, conceptual and case approach. The results of this study are that each dispute resolution institution has the attribute attributive in resolving consumer financing disputes. The competence to settle consumer financing disputes for each settlement institution must pay attention to two aspects, including the types of consumer financing disputes; and the choice of dispute resolution based on the agreement of the parties.
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Kaya, Serkan, Muhammed Danyal Khan, and Rao Imran Habib. "Advanced Technologies for Supporting Dispute Resolution: An Analysis." Review of Applied Management and Social Sciences 2, no. 1 (June 30, 2019): 47–57. http://dx.doi.org/10.47067/ramss.v2i1.14.
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Current Traditional litigation in courts is still considered as the main dispute resolution forum for civil disputes. However, as a result of the digital revolution of society, traditional litigation has become very slow, expensive, formal, and complex. To meet the requirement of the digital age regarding the resolution of disputes, Online Dispute Resolution which is a combination of Alternative Dispute Resolution with Information Communication Technology, has become the new trend for resolving disputes. This article critically examines the use of Artificial Intelligence in ODR and gives some successful examples of global ODR services.
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Broadbent, Nigel. "Alternative Dispute Resolution." Legal Information Management 9, no. 3 (September 2009): 195–98. http://dx.doi.org/10.1017/s1472669609990326.
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AbstractFollowing the enactment of the Civil Procedure Rules in 1999, potential litigants are expected to pursue alternative means to litigation for solving their disputes. In this article, Nigel Broadbent a Director at Lupton Fawcett LLP in Leeds clearly explains the various activities which fall within ADR, including mediation, family dispute resolution, arbitration, conciliation and adjudication.
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Izzati, Nur Arissa, Chusnul Qotimah Nita Permata, and Miftah Santalia. "Assessing the Effectiveness of Settling Indonesian Sea Border Disputes through Litigation and Non-Litigation Paths." Lex Scientia Law Review 4, no. 1 (May 8, 2020): 1–18. http://dx.doi.org/10.15294/lesrev.v4i1.38261.
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Conflicts or disputes over maritime boundaries often occur, disputes that cause two or more countries are one of the authorities of their respective countries to conduct negotiations so as not to cause prolonged conflict or dispute. Border disputes between sea, island, and state are included in the affairs of the international court through the role of international law, such as the dispute between Indonesia and Vietnam in the Natuna Sea region which mutually claims sea borders both the continental shelf boundaries and the Exclusive Economic Zone (EEZ) boundaries, disputes between Indonesia and Malaysia in the Malacca Strait, the South China Sea Dispute, and so on. The existence of unilateral claims from each country there are still problems regarding sea borders that cause relations between countries experiencing conflict. Problems that cause disputes between countries are caused because the negotiations between the two parties have not been completed, violations occur by the disputing countries, there are still unclear sea boundaries, and others. The United Nations Convention on The Law of the Sea (UNCLOS) 1982 is an international maritime law that applies in the resolution of disputes at sea, but only countries that have ratified UNCLOS can apply this international sea law. In resolving this dispute a country can do with two channels namely litigation and non-litigation, where litigation is used for the last point in this dispute through ITOLS. The purpose of writing this article is to find out how the effectiveness of sea base dispute resolution in Indonesia through litigation and non-litigation.
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Hudiata, Edi. "REKONSTRUKSI HUKUM PENYELESAIAN SENGKETA PASAR MODAL SYARIAH: PENGUATAN ASPEK REGULASI UNTUK MEMBERIKAN KEPASTIAN HUKUM." Jurnal Hukum dan Peradilan 6, no. 2 (July 31, 2017): 297. http://dx.doi.org/10.25216/jhp.6.2.2017.297-316.
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The regulation of the Islamic capital market following the rules contained in Law 8/1995 on Capital Market, DSN MUI Fatwa No. 40 / IX / 2003, Bapepam-LK Number IX.A.13, No. IX.A.14, and No. II. K.1 From that rules, nothing has clearly set the Islamic capital market dispute resolution, both litigation and non-litigation resulting in a legal vacuum (leemten in het recht). Islamic economic dispute settlement provisions, including the dispute over the Islamic capital market, is only found in Law 3/2006. Through quantitative research methods, the study sought to harmonize the empty rules at the same time filling thus legal vacuum. The research concluded that the settlement litigation of disputes in Islamic capital markets settled in the Religious Court, while in non-litigation resolved through BASYARNAS (National Sharia Arbitration Board) and / or as other civil disputes can also be resolved through Alternative Dispute Resolution in accordance with Law 30/1999.Keywords: legal vacuum, the Islamic capital market.
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Hartman, Francis T., and George F. Jergeas. "A model for proactive mediation of construction disputes." Canadian Journal of Civil Engineering 22, no. 1 (February 1, 1995): 15–22. http://dx.doi.org/10.1139/l95-002.
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Alternative dispute resolution methods remain an area of interest and study because of the continued increase in the incidence of disputes, be they claims or litigation. Practice in the industry tends to stimulate litigation if negotiation of claims is unsuccessful. At variance with this is the declared preference of construction industry practitioners for mediation over arbitration and for arbitration over litigation. Mediation has had a high success rate when used in construction dispute resolution. The cost of mediation is significantly lower than litigation or arbitration. The probability of the parties to the dispute being able to work together effectively after the dispute has been resolved is higher, and the dispute can be resolved more quickly than by arbitration or litigation. This paper presents the findings of a study undertaken to identify a better process for construction contracting. An essential part of the new process is the use of proactive mediation. Proactive mediation is the use of a mediator prior to a dispute arising to help identify and address potential problems before they become difficult or unsolvable issues. The proposed methodology has been tested through a process which obtained the input of over 60 senior industry practitioners. Key words: mediation, construction management, contracts, claims, cost reduction, alternate dispute resolution, risk management.
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Nufaris Elisa. "The Resolution of International Trade Disputes through Arbitration." Britain International of Humanities and Social Sciences (BIoHS) Journal 2, no. 1 (February 29, 2020): 296–301. http://dx.doi.org/10.33258/biohs.v2i1.191.
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If an international trade dispute occurs, so that the ways of resolution can be reached through non-litigation (alternative litigation) or Alternative Dispute Resolution (ADR). The facilities classified as ADR other than Arbitration facilities as contained in Article 6 of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution which includes facilities including Meditation facilities, Negotiation facilities, Consolidation facilities, and other facilities. Based on the Arbitration Law it provides an opportunity to resolve trade disputes through the Arbitration institution and it is very appropriate if this institution has a very important role in resolving disputes that occur in the world of international trade. The scope of disputes which can be tried in a trial of the International Commercial Arbitration institution must be related to the issue of trade, finance and general trading (commerce), while those relating to other matters have nothing to do at all.
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Rasyid, Abdul. "Relevance of Islamic Dispute Resolution Processes in Islamic Banking and Finance." Arab Law Quarterly 27, no. 4 (2013): 343–69. http://dx.doi.org/10.1163/15730255-12341267.
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Abstract In the Islamic legal system, the ways in which disputes are resolved generally fall under two categories. The first category is through litigation, namely in Islamic courts (al-qaḍāʾ or adjudication), and the second is through amicable means such as negotiation, conciliation and compromise (naṣīḥah or sincere advice), mediation (ṣulḥ), arbitration (taḥkīm), mediation along with arbitration (ṣulḥ and taḥkīm), an ombudsman (muḥtasib), expert determination (Mufti’s fatwā, pl. fatāwā), etc. These mechanisms are called alternative dispute resolution (ADR) that refers to a range of dispute resolution processes which are alternative to traditional litigation. Over time, the term ADR is now coming to mean ‘appropriate dispute resolution’ or the most appropriate resolution process in the given circumstances. One of the principal goals of ADR is to provide parties with choices for the effective and efficient resolution of disputes. The above-mentioned dispute resolution processes have different characteristics. This article will discuss only the relevant mechanisms with a view to examine how far they may be suitable to resolve Islamic banking and finance disputes effectively, cheaply and quickly.
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Moisejevas, Raimundas. "The Damages Directive and Consensual Approach to Antitrust Enforcement." Yearbook of Antitrust and Regulatory Studies 8, no. 12 (2015): 181–94. http://dx.doi.org/10.7172/1689-9024.yars.2015.8.12.8.
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The article focuses on the novelties introduced by the Damages Directive in the field of consensual settlements of disputes concerning private enforcement. The Damages Directive obliges Member States to ensure that the limitation period for bringing an action for damages is suspended for the duration of any consensual dispute resolution process. The Directive also establishes the main principles that govern the effect of consensual settlements on subsequent actions for damages. Since the EU framework for consensual dispute resolution of private enforcement disputes is quite new, many issues must still be solved in Member States’ practice. While analysing consensual dispute resolution in private enforcement cases, particular interest should be paid to mediation and arbitration as a form of Alternative Dispute Resolution (ADR). Mediation is often used in competition law litigation. In a mediation process, parties are subject to fewer legal costs than in litigation and arbitration. It may thus be concluded that consensual dispute resolution is usually a faster way to receive compensation. However, voluntary arrangements and ADR in competition law still raise many problems concerning both procedural and substantial legal acts
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Aswandi, Andi. "UPAYA HUKUM DALAM PENYELESAIAN SENGKETA PERDAGANGAN EMAS BERJANGKA PADA PT. RIFAN FINANCINDO BERJANGKA PEKANBARU." JCH (Jurnal Cendekia Hukum) 4, no. 2 (March 28, 2019): 302. http://dx.doi.org/10.33760/jch.v4i2.107.
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Gold futures trading is very vulnerable to disputes. Therefore, understanding the efforts to resolve futures trade disputes is very important to know. This research was conducted empirically, the nature of descriptive analysis research with qualitative data analysis. Futures trading dispute at PT. Rifan Financindo Berjangka Pekanbaru is caused by customer misunderstanding about the process and legal aspects of futures trading. This was made worse by the lack of education conducted by futures brokers and the existence of unlawful acts committed by sales marketing and futures broker representatives. Gold futures trade dispute settlement can only be done by litigation in the South Jakarta District Court or non-litigation through the Commodity Futures Trading Arbitration Board. Constraints encountered in resolving disputes are; disproportionate choice of dispute resolution forums, lack of customer understanding of legal aspects in resolving disputes and violations of Standard Dispute Resolution Operational Procedures.
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Sari, Dewi Utami. "PENYELESAIAN SENGKETA PERBANKAN SYARIAH DI INDONESIA." Al-Munqidz : Jurnal Kajian Keislaman 8, no. 2 (July 28, 2020): 157–71. http://dx.doi.org/10.52802/amk.v8i2.236.
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The development of financial institutions and syaria banking is so fast, but in terms of legal regulations it still lags. Among the regulations that still need to be improved is the regulation of resolute dispute syaria banking. Where in this case there is still a juridical problem there is dualism of judicial authority in the resolute dispute syaria banking. The results showed that the dispute resolution of syaria banking in Indonesia can be done through two ways, both litigation and non-litigation.Religion Court has the authority to resolve syaria banking disputes on litigation ways, while the non-litigation can be done through deliberation, banking mediation. National Sharia Arbitration Board is the most strategic forum for resolving disputes about banking Sharia outside the court because it could resolve the dispute quickly, simply and at low cost.
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Pujiyono and Sufmi Dasco Ahmad. "Legal Protection Carried Out by the Financial Service Authority in a Dispute between Consumers and Insurance Companies in Indonesia." International Journal of Social and Administrative Sciences 3, no. 1 (October 18, 2018): 55–61. http://dx.doi.org/10.18488/journal.136.2018.31.55.61.
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This study aims to find out how the form of legal protection carried out by the Financial Service Authority towards consumers who experience disputes with insurance companies in Indonesia. This research is a normative legal research that is the prescriptive approach. The data are taken from secondary data types that consist of primary and secondary legal materials. Data collection techniques used are library studies, and the analytical techniques used are deductive by syllogism method. The result of the study shows that a form of repressive protections is carried out by the Financial Service Authority after a dispute between consumers and insurance services and a legal defense that contains many weaknesses. Settlement of disputes between consumers and Insurance Companies can be done through litigation/ court and non-litigation/ out of court settlement. In the litigation process through the Commercial Court. The non-litigation process that will carried out with the institution/ internal dispute resolution step, limited facilities through mediation that facilitated by Financial Services Authority and finally through the external dispute resolution or the arbitration institution.
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Wiguna, Made Oka Cahyadi. "Peluang Penyelesaian Sengketa Perdata Tentang Tanah Melalui Alternative Dispute Resolution." Masalah-Masalah Hukum 47, no. 1 (January 30, 2018): 47. http://dx.doi.org/10.14710/mmh.47.1.2018.47-55.
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AbstractThe current developments, there are many land disputes that are vertical or horizontal. Issues concerning land affairs are often caused by salim claims over land rights. The intended land dispute is a civil dispute concerning the land. Achieving a win-win solution in the settlement of civil disputes over land is relatively difficult to materialize, if the settlement is resolved through a trial (litigation). The choice of law that can be chosen to obtain and realize a win-win solution in solving civil disputes over land is of course through alternative dispute resolution. By way of negotiation, mediation and conciliation. In the course of the settlement of civil disputes over land settled through alternative dispute resolution, the settlement can not ignore the applicable legal principles of the treaty. Keywords: Land civil disputes, alternative dispute resolution and principles of contract.AbstrakPerkembangan yang terjadi saat ini, banyak terjadi sengketa pertanahan yang bersifat vertikal maupun horizontal. Permasalahan mengenai pertanahan yang terjadi sering disebabkan akibat salim klaim penguasaan hak atas tanah. Sengketa tanah yang dimaksudkan adalah sengketa perdata tentang tanah. Mewujudkan win-win solution dalam penyelesaian sengketa perdata tentang tanah relatif sulit dapat terwujud, apabila penyelesaiannya diselesaikan melalui sidang peradilan (litigation). Pilihan hukum (choice of law) yang dapat dipilih untuk memperoleh dan mewujudkan win-win solution dalam menyelesaikan sengketa perdata tentang tanah tentunya adalah melalui alternative dispute resolution. dengan cara negosiasi, mediasi dan konsiliasi. Dalam rangka penyelesaian sengketa perdata tentang tanah diselesaikan melalui alternative dispute resolution, maka penyelesaiannya tidak dapat mengabaikan asas-asas hukum yang berlaku mengenai perjanjian. Kata Kunci : Sengketa perdata tanah, alternatif penyelesaian sengketa dan asas-asas perjanjian.
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Praptianingsih, Sri, and Fauziyah Fauziyah. "THE DISPUTE RESOLUTION MODEL OF VILLAGE HEAD ELECTION THROUGH NON LITIGATION." Tadulako Law Review 2, no. 1 (June 30, 2017): 25. http://dx.doi.org/10.22487/j25272985.2017.v2.i1.7847.
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Article Number 6 of 2014 clauses 37 verses (5) and (6) provides that the regent in the district must resolve the dispute over the election result of the village head within 30 days. At the district level, the Regional Regulations governing the settlement of village head election disputes and regulations are effective in the dispute profession.However, the laws and regulations at the local / district level have not yet clearly defined the form / format of the outcome of the dispute over the election of the village mayors. The specific purpose of this research is to formulate the model form in the effort to solve the disputes of Village mayors Election by doing syncretism of existing strategy. The Urgency of this research that is (a) need to build juridical system in handling dispute of village head election; (b) the synchronization of district regulations governing the handling of village head election disputes both vertically and horizontally (c) needs a dispute resolution strategy by developing a model of settlement that provides protection of constitutional rights and ensures that government agenda.Research activities in Jember, Bondowoso and Lumajang districts, with a total sample of 150 people. Data collection techniques use Participatory Action Research (PAR) and Focus Group Discussion (FGD) methods. The Data analysis technique using qualitative analysis.The result of this research is the policy of settlement of disputes of village head election is set forth in juridical instrument at local level, result of settlement stated in peace agreement.This Agreement is then submitted to the Court for the issuance of the Deed of Peace in order to ensure the validity of the legal force for the parties.
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Zariski, Archie. "Judicial Dispute Resolution in Canada: Towards Accessible Dispute Resolution." Windsor Yearbook of Access to Justice 35 (May 30, 2018): 433–62. http://dx.doi.org/10.22329/wyaj.v35i0.5789.
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This article argues that access to judges is an essential element of access to justice. Traditional civil litigation procedure aimed at preparation for trial that is complex, time-consuming and costly obstructs such access, especially for litigants without lawyers. To remedy this, the author proposes a summary judicial dispute resolution procedure comprising two stages: early judicial intervention followed by judicial dispute resolution that is determinative if necessary. At both points litigants would be given the opportunity to settle their dispute consensually, thus combining principles of self-determination with final disposition according to law. The proposal draws on and extends contemporary innovations in Canadian courts concerning summary proceedings and binding judicial dispute resolution. The new procedure should improve access to judges and thus access to justice.
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Ilma, Dede Amar Udi, Fadia Fitriyanti, Faqih Ma’arif, Nasrun Baldah, and Bambang Utoyo. "STATE OF THE ART PERSELISIHAN KONTRAK KONSTRUKSI DI INDONESIA." INERSIA: lNformasi dan Ekspose hasil Riset teknik SIpil dan Arsitektur 16, no. 2 (December 24, 2020): 158–70. http://dx.doi.org/10.21831/inersia.v16i2.36901.
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ABSTRAKPaper ini membahas tentang state of the art penyelesaian sengketa konstruksi di Indonesia yang meliputi jenis sengketa, indikasi potensi sengketa, dan perbandingan peraturan penyelesaian sengketa jasa konstruksi. Metode yang digunakan adalah mix method yang terdiri dari expert judgment, studi literatur dengan memperbandingkan riwayat penyelesaian perselisihan kontrak konstruksi mengacu kepada UU No.02/2017, Perpres No.16, UU No. 30 / 1999, dan PP No. 22/2020, dan Dispute Resolution Management Matrix (DRM-Matrix). Hasil analisis menunjukkan bahwa dua hal pokok penyelesaian sengketa yaitu pilihan penyelesaian sengketa dan penyelesaian sengketa di luar pengadilan (litigasi dan non litigasi). Penyempurnaan diberlakukan dalam PP No.22 Tahun 2020 yang menjelaskan tentang tahapan penyelesaian sengketa yang menyangkut mediasi, konsiliasi, dan arbitrase, juga terkait dengan penunjukkan dewan sengketa.Kata kunci: kontrak, konstruksi, perselisihan, state of the art ABSTRACTThis paper discusses of state of the art construction dispute resolution in Indonesia, which includes types of disputes, indications of potential disputes, and comparison of construction service dispute resolution regulations. The proposed method is a mixed-method consisting of expert judgment, literature study by comparing the history of construction contract dispute settlement referring to Law No. 02/2017, Presidential Decree No. 16, Law No. 30/1999, and PP. 22/2020, and the Dispute Resolution Management Matrix (DRM-Matrix). The results show that there are two main issues for dispute resolution, namely the choice of dispute resolution and dispute resolution outside the court (litigation and non-litigation). Improvements are enforced in Government Regulation No.22 of 2020 which explains the stages of dispute resolution involving mediation, conciliation and arbitration, as well as the appointment of a dispute board.Keywords: contract, constructions, dispute, state of the art
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Zaenah, Zaenah. "RESOLUTION FORUM OF SYARIAH EKONOMY DISPUTE." Hang Tuah Law Journal 2, no. 2 (October 31, 2018): 138. http://dx.doi.org/10.30649/htlj.v2i2.65.
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<p>Both No. 93/PUU-X/2012 and PERMA No. 14 Year 2016 regulate a forum of resolution for syari’ah economy disputes, particularly the dispute that arises in a contractual relationship between syari’ah banks and their customers, whether in litigation or non-litigation setting. The development of syari’ah banking is still far due to the pressure of globally financial and economy crisis. Therefore, it is the best moment to pursue the development and progress of syari’ah banking by exhibiting the advantages of Islamic economy system that has competence to compete with the convensional ones, especially in terms of customer security assurance in the process of seeking for business dispute resolution which may possibly happen. Such process, however, remains in syari’ah corridor with <em>kaffah</em> and <em>istiqomah</em> attributes. For people in syari’ah business, all the transactions they do should be under the provisions of syari’ah regulation. An appropriate forum to seek for syari’ah economy dispute resolution is through mediation, given that it is the best one and more reflecting the values of Islam.</p>
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Siregar, Gomgom. "Penyelesaian Peselisihan Perjanjian Kerja Sama antara Asosiasi Bongkar Muat dengan Koperasi Tenaga Bongkar Muat Upaya Karya." Journal of Education, Humaniora and Social Sciences (JEHSS) 2, no. 2 (December 18, 2019): 370–81. http://dx.doi.org/10.34007/jehss.v2i2.97.
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The purpose of this paper is to describe the factors causing disputes in a collaboration, procedures for the resolution of cooperation disputes and settlement through non-litigation procedures. This type of research used in this research is normative legal research with the focus of problems related to how the dispute resolution of cooperation between loading and unloading associations with the labor force loading and unloading effort cooperatives. Based on the results of the study, it is known that the settlement of cooperation disputes between the stevedoring association with the stevedoring labor cooperative can be carried out through litigation and non-litigation procedures.
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Anwar, Muhazri, Yaswirman Yaswirman, and Ulfanora Ulfanora. "Dispute Resolution of Shariah Economy in Murahabah Financing Contract in Sahabat Mitra Sejati Cooperatives." International Journal of Multicultural and Multireligious Understanding 6, no. 3 (June 2, 2019): 72. http://dx.doi.org/10.18415/ijmmu.v6i3.768.
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Sharia resolution in the murabahah financing contract at the Mitra Sejati Cooperative indirectly in the process of resolving the dispute still refers to Law No. 21 of 2008 concerning Sharia Banking. While the Fatwa of the National Syari'ah Council Number 07 / DSN-MUI / IV / 2000 explained that the resolution of murabahah financing disputes was in the Syari'ah Arbitration Board. According to Article 55 of Law No. 21 of 2008 concerning Sharia Banking, that sharia dispute resolution can be carried out by the Court within the religious court environment and can also be resolved by referring to the contents of the contract. In fact, murabahah financing contracts carried out by true partner cooperatives do not explicitly appoint which judicial institutions to solve them. Sharia dispute resolution in the murabahah financing contract must be settled in the Religious Court but the fact is resolved in non-litigation in the form of a public auction. When viewed from the theoretical concept of legal certainty, this does not reflect the firmness in the rule of law because the resolution through non KPKNL parate litigation does not yet have binding legal force. where the results of the auction cannot automatically have disputed objects. With respect to murabahah financing agreements in true partner cooperatives, legal defects can be declared because there is no firmness and there is no accuracy of the contract maker when a dispute occurs where the contract maker does not confirm which institution is appointed and agreed when a dispute occurs.
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Devkota, Sanad. "Viewpoint of the Supreme Court of Nepal on the Arbitration Process in the Light of Party Autonomy." Tribhuvan University Journal 35, no. 2 (December 31, 2020): 47–58. http://dx.doi.org/10.3126/tuj.v35i2.36189.
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Arbitration is a contract-based form of binding dispute resolution. In other words, a party’s right to refer a dispute to arbitration depends on the existence of an agreement between them and the other parties to the dispute that the dispute may be referred to arbitration. Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Conflicts have existed in all cultures, religions and societies since time immemorial, as long as human have walked the earth. Human society is a repertoire where differences arise and persist as salient features, but this is also a platform where varieties of disputes find management in the form of resolution to energize the society. As conflicts are an integral part of human interaction, one must learn to deal with them tactfully, conventionally, disputes – commercial or otherwise were resolved by litigation but due to delays, costs, publicity and technicality associated with litigation, alternative dispute resolution (ADR) processes evolved. Various means of ADR or out of court settlement of disputes such as negotiation, conciliation and arbitration have come into practice. In the modern era, the business activities are increasing day by day. Along with the business activities, its complexities, differences, and disputes are also increasing day by day. The traditional method of settling disputes is the litigation process in the court of law. From the perspective of concerned parties, settlement of these disputes as quick as possible is desired. But because of the lengthily procedure and case load settlement through court is not possible. For this reason, parties were looking for the alternative process where both the parties can trust impartial person who will solve their disputes within short period of time.
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Mattli, Walter. "Private Justice in a Global Economy: From Litigation to Arbitration." International Organization 55, no. 4 (2001): 919–47. http://dx.doi.org/10.1162/002081801317193646.
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Drawing on the analytical framework developed by Barbara Koremenos, Charles Lipson, and Duncan Snidal in the Rational Design project, I seek to shed light on the striking institutional differences among the various methods of international commercial dispute resolution for private parties. These methods include recourse to public courts and more frequently to private international courts, such as the International Court of Arbitration of the International Chamber of Commerce or the London Court of International Arbitration, as well as recourse to so-called ad hoc arbitration and alternative dispute-resolution techniques, such as conciliation and mediation. The key institutional dimensions along which these methods of international dispute resolution vary are (1) procedural and adaptive flexibility, and (2) centralization of procedural safeguards and information collection. I explain why different methods of international commercial dispute resolution are selected. I argue that these methods respond to the varying institutional needs of different types of disputes and disputants. Such needs can be explained in terms of the severity of the enforcement problem, uncertainty about the preferences or behavior of contractual partners, and uncertainty about the state of the world.
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Hassan, Dr Abida, and Dr Dil Muhammad Malik. "Ancient Dispute Resolution through Informal Processes: ADR." Journal of Law & Social Studies 2, no. 2 (December 31, 2020): 73–77. http://dx.doi.org/10.52279/jlss.02.02.7377.
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The research article discusses the historical study for settlement of disputes under the umbrella of legal systems (formal and informal) prevailing in different civilizations and in various times. This research is briefly discussing the historical aspects of various legal systems in ancient times. This research highlights that human civilizations promoted both methods, but the most popular method was informal dispute resolution (ADR) in all over the world which still is needed and being popular day by day. From study, it has been founded that informal dispute resolution (ADR) has been the choice of people and they preferred to opt this process rather to go for litigation. The research has shown the benefits and importance of settlement of disputes through informal justice system. The study high lights that the system has been working very successfully in ancient times, therefore, this pre-tested process i.e., informal dispute resolution is more sustainable in any form than the formal system because it reflects amicable practices.
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Utama, Meria, and Irsan Irsan. "General Overview on Selecting and Drafting Construction Contract Disputes Resolution." Sriwijaya Law Review 2, no. 2 (July 31, 2018): 152. http://dx.doi.org/10.28946/slrev.vol2.iss2.129.pp152-169.
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A good international contract as the experts considered is the most complicated one the parties must draft carefully. It involves many stakeholders and containing documents to attach likewise financial judgment, technical specifications, work scope, rights, obligation, responsibility and other external factors which are beyond the parties’ consideration. A good design contract will prevent the parties from disputes. The dispute settlement mechanisms should be explicitly stated in the international construction contract. The nullity of the choice dispute settlement mechanisms or in the absence of the choice dispute settlement mechanisms and also the unperformed of the contract purposes will not prevent the dispute from being occurred. The most common process to resolve disputes is through litigation, but the process takes time, energy and funding. The method of alternative dispute resolution (ADR) such as mediation, conciliation, mini-trial, arbitration or other ADR techniques eradicate all the obstacles above. The question arises then, how the parties select the best alternative disputes settlement mechanism and how it should be drafted in their contract. Normative legal research is the method employed to respond the problems. Therefore, this article will elaborate the methods that will effectively settle the constructions disputes and mechanism in drafting construction contract disputes resolutions provisions
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Dobryakov, Denis A., Ilda Kasa, and Yuliia V. Sukhostavskaya. "Application of digital technologies in litigation and dispute resolution." RUDN Journal of Law 25, no. 2 (December 15, 2021): 461–81. http://dx.doi.org/10.22363/2313-2337-2021-25-2-461-481.
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By now (we mean 2020) digitalization has completely replaced the more general modernization and innovation from both the political vocabulary and the sci-entific agenda. It is difficult to say how long this trend will continue and what kind of socio-technological phenomenon will replace it. It can be cyberization, within which a person will begin to bring himself into line with the canons of the sci-fi cyberpunks and combine biological with technological (and digital at the same time) in his body, or vice versa, some kind of reactionary naturalization. Anyway, now the widespread adoption of digital technology is an indisputable and obvious fact. And this process applies to all spheres of societys life, without bypassing legal proceedings and out-of-court settlement of disputes (or in other words - alternative dispute resolution), which can be significantly improved using digital technologies. This article analyses the practice and legislative regulation of the use of digital technologies in various forms of legal proceedings and such types of out-of-court dispute resolution as arbitration and mediation. Comparative legal method allowed to compare Russian and foreign legislations as well as approaches to determining the permissible limits of the use of digital technologies, including their intellectual variety. Individual proposals have been formulated to improve Russian legislation.
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Kenworthy, Lane, Stewart Macaulay, and Joel Rogers. "“The More Things Change…”: Business Litigation and Governance in the American Automobile Industry." Law & Social Inquiry 21, no. 03 (1996): 631–78. http://dx.doi.org/10.1111/j.1747-4469.1996.tb00092.x.
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Business litigation is a relatively neglected area of corporate governance, particularly given its enormous rise in the United States over the past generation. As a preliminary effort to engage this issue, we examine dispute avoidance and resolution in the automotive sector since the early 1970s-focusing on relationships between auto manufacturers and their suppliers and dealers. We generally presume intercorporate litigation to be a “last resort” in business practice, chosen only on the breakdown of less costly means of dispute avoidance or resolution; we take such breakdown typically to be caused by shifts in the terms of competition among firms (e. g., increased competition, instability, uncertainty); and we expect that, over time, the costs of litigation will motivate efforts to construct new structures of nonlitigious dispute resolution. In the case of the U. S. auto industry, we find disruptive shifts in the terms of competition and increased recourse to litigation. Throughout, however, this litigation effect is mitigated by the dominance of major manufacturers over their suppliers and dealers. Over time, it is further dampened by industry development of mechanisms for arbitration or other nonlitigious dispute resolution.
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Agarwal, Anurag, Sridhar Ramamoorti, and Vaidyanathan Jayaraman. "Decision Support Systems For Strategic Dispute Resolution." International Journal of Management & Information Systems (IJMIS) 15, no. 4 (September 12, 2011): 13. http://dx.doi.org/10.19030/ijmis.v15i4.5793.
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Disputes and lawsuits are quite common in business and are often a source of significant liabilities. We conjecture that measurement challenges and lack of adequate analysis tools have greatly inhibited the ability of the General Counsels offices in selecting the best mode for the resolution (i.e. litigation vs. out-of-court settlement) of business conflicts and disputes. Easily quantified direct costs (e.g., out-of-pocket expenses related to pursuing and defending against litigation) tend to be considered, whereas the more difficult-to-quantify indirect risks and costs (e.g., damaged relationships with customers and potential alliance partners, including reputational harm) which may be quite significant, tend to be ignored. We also hypothesize that the benefits of Alternative Dispute Resolution (ADR) strategies may have been muted because of the failure to assess the real magnitude of not-easily-quantified indirect risks and costs. We propose two Decision Support Systems (DSSs), one for a macro-level analysis and one for a micro-level (i.e. case by case analysis), to alleviate the measurement and analysis problem. In the proposed DSSs, the underlying decision engine makes use of operations research tools such as decision trees, logic modeling, Monte-Carlo Markov-Chain (MCMC) and fuzzy logic simulations. By providing the means to gather decision-relevant information, especially on difficult-to-measure soft costs, we have attempted to reduce the decision making risk for the General Counsels offices. In the process, we have also furnished some ways to reach more informed assessments to support litigation risk management strategies and decisions.
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Saeb, Abdollah, Mohd Suhaimi Mohd Danuri, Othman Mohamed, and Norhanim Zakaria. "A Mechanism for Dispute Resolution in the Iranian Construction Industry." Journal of Construction in Developing Countries 26, no. 1 (July 30, 2021): 205–26. http://dx.doi.org/10.21315/jcdc2021.26.1.10.
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If disputes are not resolved promptly, they tend to become prolonged and escalated, creating a more complicated and less manageable scenario. Therefore, in this study, we formulated a mechanism for dispute resolution in the Iranian construction industry based on alternative dispute resolution methods. The formulated mechanism could aid disputing parties in the construction industry to settle their disputes more effectively and enhance dispute resolution methods in construction standard forms. To achieve this goal, we collected qualitative data using semi-structured interviews with 30 experts who were selected via purposive sampling method. We used MAXQDA software to manage and organise complete interview transcripts and facilitate the qualitative data analysis process. The proposed mechanism and guidance were finally validated using the survey questionnaire. Negotiation has equal potential for dispute resolution with different sources, and it is recommended as the first step in dispute resolution with any source. According to the results, we recommend a three-step resolution mechanism as follows: negotiation, a method based on sources of disputes and a hybrid method of adjudication and arbitration (Adj-Arb), as the appropriate mechanism for dispute resolution in the Iranian construction industry. Replacing arbitration with Adj-Arb in construction standard forms will have satisfactory results in resolving construction disputes and reply to growing criticism that arbitration is becoming more like litigation.
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Palanissamy, Ayyappan, and Kesava Moorthy. "Consumer Dispute Resolution in Cyberspace - Trends and Developments." International Conference on Advances in Business, Management and Law (ICABML) 2, no. 1 (March 2, 2019): 120–27. http://dx.doi.org/10.30585/icabml-cp.v2i1.253.
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Developments and advancements in the ICT environment has led to high increase in electronic commerce. Cyber contractual disputes also emerge rapidly and this challenge the traditional consumer protection systems in terms of redressal and remedies. To protect consumers rights and interests, ADR mechanisms can be used which can overcome the difficulties confronted in the traditional litigation process. Dispute resolution in internet contracts can take place online either entirely or partly. There are various mechanisms available to resolve disputes which can protect disputants’ interests and rights absolutely. As the cyber environment usage continues to expand, it is utmost important to design effective mechanisms for resolving online commercial disputes because traditional adjudicatory process can be time consuming, expensive and may raise jurisdictional problems. Though the current trends and practice in the field of online dispute resolution exists, it appears that there are various aspects relating to which are yet to be clarified. This article aims to present a national and international scientific literature review on the models of Dispute Resolution mechanisms, discusses the use of Alternative dispute resolution systems (including ODR), types of procedure and mechanisms adapted for dealing with commercial disputes in India. It also looks into the international frameworks available with redressal systems and its effectiveness in dealing with cross border disputes.
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Sugiarto, Suprihantosa. "ONLINE DISPUTE RESOLUTION (ODR) SEBAGAI ALTERNATIF PENYELESAIAN SENGKETA DI ERA MODERNISASI." Qawãnïn: Journal of Economic Syaria Law 3, no. 1 (January 1, 2019): 50–65. http://dx.doi.org/10.30762/q.v3i1.1484.
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Secara konvensional, penyelesaian sengketa bisnis pada umumnya diselesaikan melalui pengadilan (litigasi). Adapun proses litigasi lebih bergaya dominasi yang menyebabkan posisi para pihak yang berlawanan, jauh dari konsep integrasi yang bersifat win-win solution. Tidak dapat dipungkiri pula bahwa proses penyelesaian melalui litigasi membutuhkan waktu yang cukup lama dan menyebabkan ketidakpastian bagi perusahaan atau para pihak yang bersengketa. Didalam dunia bisnis saat ini, penyelesaian sengketa melalui pengadilan tidak disukai oleh banyak pihak. Selanjutnya munculllah penyelesaian sengketa melalui jalur non letigasi. Salah satu bentuk non letigasi ini adalah Online Dispute Resolution (ODR). ODR merupakan penyelesaian sengketa melalui dunia maya (internet) tanpa melakukan pertemuan secara fisik. ODR sudah dilakukan di banyak negara di Amerika dan di Eropa. Hal ini ditandai dengan munculnya institusi yang direpresentasikan oleh website mereka yang melayani penyelesaian sengketa dengan jalur Online Dispute Resolution ini. ABSTRACT:onventionally, business disputes are settled by litigation. While the settlement process is more focused on domination which leads to the opposing party's position, far from the concept of integration which is a win-win solution. It cannot be denied either because the settlement process through litigation takes quite a long time and depends on the company or the parties in dispute. In the business world today, being approved through the court is not approved by many parties. Then came the agreement through the non-litigation way. One of it is Online Dispute Resolution (ODR). ODR is an agreement from the virtual world (internet) without having a physical meeting. ODR has been carried out in many countries in America and in Europe. This is indicated by the agreement represented by their website which is presented resolved by this Online Dispute Resolution.
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Alaloul, Wesam S., Mohammed W. Hasaniyah, and Bassam A. Tayeh. "A comprehensive review of disputes prevention and resolution in construction projects." MATEC Web of Conferences 270 (2019): 05012. http://dx.doi.org/10.1051/matecconf/201927005012.
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The construction industry is complex, fragmented, dynamic and involves many parties in an adversarial relationship. This makes disputes almost inevitable in any construction project. This paper aims to provide a comprehensive review of the adopted methodologies in resolving disputes that arise in the construction projects. The paper evaluates and classifies the different methods of disputes resolution. A comparison was conducted between the advantages and disadvantages of each method. The paper distinguishes between the traditional method of disputes resolution; litigation and Alternative Dispute Resolution (ADR) methods such as arbitration, mediation, med/arb, mini-trial and dispute review board. In conclusion there is no best way to solve all kind of disputes in construction projects, however, a general step by step process of how disputes should be addressed is finally presented.
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Chaisse, Julien, and Xu Qian. "Conservative Innovation: The Ambiguities of the China International Commercial Court." AJIL Unbound 115 (2021): 17–21. http://dx.doi.org/10.1017/aju.2020.81.
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In the global development of new international commercial dispute resolution centers, the China International Commercial Court (CICC) represents a genuine innovation in China's legal history. The CICC aims to become a dispute resolution “one stop shop” (combining litigation, arbitration, and mediation) for Belt and Road Initiative (BRI) related disputes. Despite its name and ambition, however, the CICC operates more like a domestic court. The CICC's stringent jurisdictional requirements and conservative institutional design show that the CICC cannot serve its stated objective of attracting new investment opportunities or foreign parties to the Chinese forum. These defects are not fatal but will have to be addressed for the CICC to reach its full potential of hybridization of litigation and arbitration both in and beyond China.
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Coleman, Theophilus Edwin. "Assessing the efficacy of forum selection agreements in Commonwealth Africa." Journal of Comparative Law in Africa 7, no. 2 (2020): 1–40. http://dx.doi.org/10.47348/jcla/v7/i2a1.
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Any international commercial agreement has the potential to be the subject of a dispute. In resolving international commercial disputes, parties to a contract are at liberty to choose any dispute resolution mechanism that best serves and meets their commercial interests. Generally, parties to an international commercial contract may resort to courtroom litigation or choose an alternative dispute resolution (ADR) mechanism as a method of resolving their transnational disputes. Underlying almost every international commercial contract, therefore, is a very primary question about where, by whom and how the parties prefer their disputes to be litigated. The response to this question depends on whether parties prefer traditional courtroom litigation, or an ADR mechanism. In most instances, countries put in place dispute resolution regimes that seek to afford contracting parties the liberty to submit their disputes to a foreign forum or an arbitral tribunal for legal redress and/or a remedy. However, while the efficacy of resolving international disputes through arbitration has garnered immense international and domestic support, the submission of disputes by parties to a foreign forum through a forum selection agreement is regarded with much ambivalence in most countries. This article assesses the efficacy of forum selection agreements in Commonwealth Africa. It appraises the judicial approach of courts in Commonwealth African countries relative to the essence and effect of forum selection agreements. This article argues and calls for a higher degree of judicial commitment to the juridical choices of private individuals who are party to an international commercial contract, especially with regard to forum selection agreements.
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Halim, Abdul. "THE DEVELOPMENT OF CIVIL LAW PROCEDURES IN THE RESOLUTION OF DIVORCE DISPUTES IN THE RELIGIOUS COURT." Legal Standing : Jurnal Ilmu Hukum 3, no. 2 (November 12, 2019): 116. http://dx.doi.org/10.24269/ls.v3i2.2079.
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Relations which appear from legal actions do not always end well. It is not seldom that it may end with conflicts or disputes which end in court. To demand for the rights which appear from those legal relations, there needs to be some procedures and regulations so that the demand of rights may be carried out according to the law. The law which regulates those things are usually called the civil law procedures. The resolution of civil disputes in court (litigation) and the resolution of civil disputes through a non-court manner (non-litigation) in the context of the divorce dispute resolution in the Religious Court, is a combination between the litigation and the nonlitigation mmethods. This is rather interesting to be studied. The interesting part is its effectivity as a preventive or a repressive effort in handling the divorce cases in the Religious Court.
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MacDermott, Therese, and Joellen Riley. "Alternative Dispute Resolution and Individual Workplace Rights: The Evolving Role of Fair Work Australia." Journal of Industrial Relations 53, no. 5 (November 2011): 718–32. http://dx.doi.org/10.1177/0022185611419625.
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This article examines the dispute resolution practices of Fair Work Australia that are evolving to deal with individual workplace rights, as its traditional role shifts away from conciliating and arbitrating collective industrial disputes. The workplace rights enshrined in the ‘general protections’ provisions in Part 3-1 of the Fair Work Act 2009 protect employees and prospective employees from any ‘adverse action’ taken against them because they are exercising a workplace right, or because they fall within one of the protected categories, such as the right to be free from discrimination. A broad range of alternative dispute resolution processes is now available to Fair Work Australia in dealing with such disputes. Alternative dispute resolution processes are seen as a way of avoiding costly and time-consuming litigation, and in some circumstances can improve access to justice for individuals. This article explores whether Fair Work Australia is likely to adopt different dispute resolution approaches from its traditional conciliation practices when managing ‘general protections’ applications, and whether the framework for dealing with these disputes will facilitate fair recognition and enforcement of workplace rights.
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Sığrı, Ünsal, and Hakan Karabacak. "Conflict resolution role of mediation in labor disputes in Turkey." International Journal of Conflict Management 30, no. 3 (June 10, 2019): 395–415. http://dx.doi.org/10.1108/ijcma-01-2019-0013.
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Purpose This paper aims to manage better the conflicts in labor disputes by improving the understanding of mediation dynamics from a game-theoretical perspective. Design/methodology/approach Signaling game model is adapted to a hypothetical labor dispute based on the legislative regulations on the mandatory mediation system in Turkey. Findings The paper determines mediation equilibria in which both players get positive payoffs. Analysis of the mediation equilibria helps to improve the understanding about the litigation and mediation dynamics depending on the variables. The variables are clearly separated from each other due to their reverse effects on strategy choices of the parties. Mediation payoff and litigation cost are characterized by their incentive effects on mediation preferences, whereas mediation fee and litigation payoff are characterized by their disincentive effect. While increasing amounts of incentive variables strengthen the mediation tendency of the employee, increasing amounts of disincentive variables reveal the opposite effect. Furthermore, the analysis also indicates that if the litigation payoff is too small to recover litigation costs, accepting the mediation becomes the optimal strategy. This prediction is contrary to that of traditional game-theoretic litigation/settlement models, in which small-claim disputes typically cannot be settled. Practical implications The assumption that the mediation fee is not a part of the litigation cost eliminates the disincentive effect of mediation fee and makes it neutral on the strategy choice of employee. Originality/value This paper first analyzes the strategic role of mediation in labor disputes by using a signaling game. Despite its mediation focus, the paper also provides practical insights for litigation.
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Shabani, Faton. "MEDIATION – CURRENT STATE OF USE IN THE REPUBLIC OF NORTH MACEDONIA." Journal of Management 37, no. 1 (June 30, 2021): 43–52. http://dx.doi.org/10.38104/vadyba.2021.1.04.
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Mediation is a flexible, non-binding dispute resolution method in which a neutral (impartial) third party (mediator) helps two or more disputes to reach a voluntary, negotiated settlement of their disputes. Mediation, emerging strongly as an alternative method of dispute resolution (with the help of neutral third party), has made litigation today not to be treated as the only option for dispute resolution between individuals and businesses. As a means for resolving disputes it has found application especially in business, labor, family, insurance, consumer and construction disputes. The cost, speed and expertise of resolving disputes are some of the key factors that attract individuals, businesses, organizations but also state bodies and institutions to support and promote mediation in this era of globalization and life and activity exposed to the dynamics of contemporary developments. Added to this, however, is the acceptance in the vast majority of cases of dispute resolution reached by both parties to the dispute, but also the privacy and confidentiality of the resolution of their case. Despite the fact that mediation internationally has already been seriously established in the area of dispute resolution, in the Republic of North Macedonia, the legal framework and implementation in practice is at the forefront. For this reason, in addition to the empirical, descriptive and normative treatment, the author through the methods of analysis, synthesis and statistical method processes the official results of the Ministry of Justice to give a clear picture of the trends of the use of mediation in dispute resolution over a period of 5 years (2016-2020) in the Republic of North Macedonia.
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Asuan, Asuan. "TRANSAKSI PERBANKAN MELALUI INTERNET BANKING." Solusi 17, no. 3 (September 1, 2019): 317–35. http://dx.doi.org/10.36546/solusi.v17i3.220.
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Internet banking is one of the bank's services to customers to obtain information, communicate and conduct banking transactions through the internet network, the implementation of which customers already have a bank account, ATM and User ID and PIN to conduct banking transactions through internet banking based on article 1320 and 1338 Civil Code. Act Number 10 of 1998 concerning Banking in article 5 concerning types of banks, namely commercial banks and people's credit banks and article 40 regarding bank secrecy, including matters of banking transactions through internet banking and legal protection provided by banks regarding the confidentiality of customer data. Disputes on banking transactions through internet banking (banks and debtors) can be resolved by referring to agreements agreed upon by the parties, dispute resolution can be done through court (litigation) or outside the court (non-litigation) based on Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution in article 6 concerning general disputes that can be resolved through arbitration.
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Stoilkovska, Aleksandra, Valentina Mucunska Palevski, and Jana Ilieva. "AWARENESS ABOUT MEDIATION AS AN ALTERNATIVE FORM OF DISPUTE RESOLUTION: PRACTICES IN THE REPUBLIC OF MACEDONIA." International Journal of Cognitive Research in Science, Engineering and Education 3, no. 1 (June 20, 2015): 21–27. http://dx.doi.org/10.23947/2334-8496-2015-3-1-21-27.
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Disputes resolved with the use of mediation as a form of dispute resolution are rare (or at striking level) in the practice in our country. In order to increase the number of disputes that were successfully completed based on mediation, it is necessary for the people to know about the alternative forms of resolving litigation. The lack of information contributes to the lack of trust in any resolution of the dispute except in the court. There is also the positive practice of resolving disputes through mediation macular placed in public. This Paper treats the action research which aims to connect the people awareness of mediation as a form of negotiation through which can quickly and easily, without major financial implications, to resolve any dispute. This paper is based on a survey with the members of Chamber of Mediators of the Republic of Macedonia. These results clearly confirm the lack of information among the local population about the forms of dispute resolution that are available and the benefits they offer.
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Triana, Nita. "Alternative Dispute Resolution Model in the AJB Bumiputera Life Insurance Company of Purwokerto in Shari'ah Perspectives." AL-'ADALAH 15, no. 2 (January 24, 2019): 367. http://dx.doi.org/10.24042/adalah.v15i2.3004.
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Resolution of disputes by way of litigation always takes a long time, expensive dan results in a win and lose solution. Therefore resolution outside the court( non-litigation) is an alternative choice. This study analyses the resolution of insurance disputes using several methods or models outside the Court. This research is non-doctrinal legal research, with a socio-legal approach. It analyses a settlement model used by of Life Insurance AJB Bumiputera Purwokerto in the event of default of the insured/customer premium and the customer’s insurance claim against the company. The settlement involves several stages, first, by means of consultation and negotiation, second by means of mediation involving OJK (Financial Services Authority) as a neutral mediator, and the last, by means of conciliation and arbitration. In the perspective of Islamic law, this solution model is similar to the concept of sulh, a type of disputes resolution in which the conflicting parties drive to settle their dispute peacefully.
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Azmi, Izuan Izzaidi, Norfarhana Md Daud, Bill Atkin, and Faznur Md Rashid Khan. "Medical Negligence Dispute Resolution in Malaysia: Time for legal reform." Environment-Behaviour Proceedings Journal 6, no. 16 (March 28, 2021): 191–96. http://dx.doi.org/10.21834/ebpj.v6i16.2726.
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As medical negligence has become a public concern today, there is an increasing number of medical negligence claims which commonly settled through litigation. However, numerous problems regarding the practice of litigation have been discovered. Hence, the research aims to examine the current medical dispute resolution in Malaysia to find a better solution for it. The findings show that there are weaknesses of the existing practice and found that mediation as an alternative dispute resolution is available and more suitable. Thus, the research provides the grounds for legal reform and recommendations for improvement of Malaysia’s medical negligence dispute resolution framework. Keywords: medical negligence; dispute resolutions; Malaysia eISSN: 2398-4287© 2021. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians/Africans/Arabians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia. DOI: https://doi.org/10.21834/ebpj.v6i16.2726
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Siong, Wong Hua. "Lawyers as Meddlers in the Mediation Process - A Malaysian Perspective." GATR Global Journal of Business Social Sciences Review 7, no. 1 (February 20, 2019): 84–90. http://dx.doi.org/10.35609/gjbssr.2019.7.1(10).
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Objective - The scope of a lawyer’s role is common knowledge and is often construed as one who advises on the application of the law, especially in the area of litigation or conveyancing. Nevertheless, it is pertinent to consider the role of a lawyer in mediation and the link between lawyer and mediation. Methodology/Technique – Mediation as a form of dispute resolution is arguably still at its infancy in Malaysia. Judges in Malaysia do encourage people to use mediation to settle disputes, instead of settling disputes through the court. As such, lawyers play a significant role in mediation, especially when the society regards mediation to be one effective mechanism of Alternative Dispute Resolution (ADR), compared to litigation. Findings - As such, the term ‘mediation’ refers to a process that generates structure negotiation, whereby a mediator (a neutral impartial third party that is acceptable to and independent of the parties) serves to facilitate agreement between the parties involved to resolve their disputes in a systematic manner by isolating the dispute issues, developing alternatives, and reaching a viable and acceptable resolution that satisfy the involved parties. Since the mediator plays the role in the mediation process, how does a lawyer play his role in the mediation process? Does he serve as a meddler in the mediation process? Novelty – A mediator claimed, “…involvement of solicitors is significant. They comprehend the dynamics of positive engagement, apart from having the ability and being prepared for a constructive negotiation so as to look for resolutions, rather than reinforcing litigation. They possess the ability to offer advice and provide guidance to their clients as they seize the opportunity to bring matter to an end. This is an exceptional instance of professionalism at its best.” This statement has become, at present time, ‘how does a lawyer apply his present skills in mediation settlement? Type of Paper: Review. Keywords: Role of Lawyers; Mediation Process; ADR; Malaysia. JEL Classification: K20, K22, K29
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Adeuti, Bosede Remilekun. "Resolving Office Establishment Dispute in Nigeria through Alternative Dispute Resolution Mechanism: An Evolving Regime." Sriwijaya Law Review 5, no. 1 (January 31, 2021): 115. http://dx.doi.org/10.28946/slrev.vol5.iss1.826.pp115-129.
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This paper examines contemporary issues in Office Establishment Dispute Resolution Mechanism in Nigeria. It explores strategic ways of resolving such office establishment dispute which has remained an intractable problem in Nigeria. The objective is to examine litigation challenges in settlement of this office dispute in Nigeria and other developing countries. This paper argues that adopting Alternative Dispute Resolution Mechanism in Office Establishment Dispute is not only a programmatic goal to be attained in the long term but rather an immediate obligation that is preferable to litigation in the court of law. The doctrinal research methodology will be used to examine the challenges in resolving office establishment dispute through alternative dispute resolution Mechanisms. This paper adopts an analytical and qualitative approach and builds its argument on existing literature works, which are achieved by synthesising ideas. Recommendations and suggestions are made based on research findings. This paper concludes that the era of jettisoning or sacrificing Alternative Dispute Resolution on the altar of inapplicability in resolving office establishment dispute is gone and the need to move with time with the practise which has been in existence in developed countries for decades.
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Triana, Nita. "JUSTICE IN MANY ROOMS IN SHARIA BANKING DISPUTE RESOLUTION TO ACHIEVE JUSTICE." Diponegoro Law Review 3, no. 1 (April 30, 2018): 43. http://dx.doi.org/10.14710/dilrev.3.1.2018.43-63.
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This paper examines the dispute resolution of Sharia Banking. The method is a non-doctrinal legal research using qualitative research and Socio Legal approach. Sharia banking cannot be separated from the problems between the banking and the Customer. This problem is calledproblematic financing. The resolution of problematic financing of sharia banks in litigation is now the absolute authority of the Religious Courts. The downside of litigation settlement usually takes a long time, the need for proof, the cost is quite expensive and the result is winningor lost. Therefore, the settlement of sharia banking is very rarely resolved through litigation. Alternative Dispute Resolution is a choice of dispute settlement chosen by Sharia Banking. The first stage isto carry out negotiation between all parties, namely Banking (lender) and The Customer (Debtor) in the form of warning and guidance. If it does not succeed, there will bedebt restructuration. The second step is mediation, in the form of consultation with third party as a mediator. The mediation determines the rescue process of debt by Banks when a debtor is still unable to return his debt, executed by the bank. According to Marc Galanter these various dispute resolutionsis called justice in many rooms. In Islamic Law it is known as Sulh (peace). However, to a large extent this non-litigation settlement is more satisfactory to both parties in resolving the dispute because it senses fairness and a win-win solution.
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Triana, Nita. "JUSTICE IN MANY ROOMS IN SHARIA BANKING DISPUTE RESOLUTION TO ACHIEVE JUSTICE." Diponegoro Law Review 3, no. 1 (August 31, 2018): 43. http://dx.doi.org/10.14710/dilrev.3.1.2018.43-64.
Full textAbstract:
This paper examines the dispute resolution of Sharia Banking. The method is a non-doctrinal legal research using qualitative research and Socio Legal approach. Sharia banking cannot be separated from the problems between the banking and the Customer. This problem is calledproblematic financing. The resolution of problematic financing of sharia banks in litigation is now the absolute authority of the Religious Courts. The downside of litigation settlement usually takes a long time, the need for proof, the cost is quite expensive and the result is winningor lost. Therefore, the settlement of sharia banking is very rarely resolved through litigation. Alternative Dispute Resolution is a choice of dispute settlement chosen by Sharia Banking. The first stage isto carry out negotiation between all parties, namely Banking (lender) and The Customer (Debtor) in the form of warning and guidance. If it does not succeed, there will bedebt restructuration. The second step is mediation, in the form of consultation with third party as a mediator. The mediation determines the rescue process of debt by Banks when a debtor is still unable to return his debt, executed by the bank. According to Marc Galanter these various dispute resolutionsis called justice in many rooms. In Islamic Law it is known as Sulh (peace). However, to a large extent this non-litigation settlement is more satisfactory to both parties in resolving the dispute because it senses fairness and a win-win solution.
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Idrees, Rao Qasim, Rohimi Shapiee, and Haniff Ahamat. "Paradigm shift; the emergence of arbitral forum shopping in CPEC investment disputes." Journal of International Trade Law and Policy 18, no. 3 (November 15, 2019): 136–51. http://dx.doi.org/10.1108/jitlp-05-2019-0022.
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Purpose The phenomena of arbitral forum shopping to resolve a commercial investment dispute is still under development and more complicated in many states. However, for Pakistan, it seems in an evolutionary phase, where the country is struggling hard to adopt the best practice of dispute resolution through forum shopping clauses. This struggle is even more inflated with huge Chinese investment through China Pakistan economic corridor (CPEC) projects in Pakistan, which come alongside with commercial investment disputes. For this purpose, the current treaty or contract-based system between China and Pakistan and litigation based domestic civil court structure look obsolete, hence, appear to require reinstatement of forum shopping clauses under concerned treaties or contracts for CPEC investment-related issues. Design/methodology/approach The authors choose a legal research method. The research design is a comparative analysis between CPEC contracts and dispute resolution mechanism between China and Pakistan and also the domestic civil court’s litigation system. This analysis selected by the authors due to inefficient bilateral investment arrangements and efficient resolution of future commercial disputes in CPEC. While the international arbitration system is included in the assessment were particular in the time and space context. The comparison comprises on dispute resolution clauses in free trade agreement (FTA) and bilateral investment treaties (BIT) between China and Pakistan and the system of resolving disputes by CPEC clauses. Findings The authors finds that in the absence of CPEC forum shopping clause under dispute resolution system, Pakistan is highly at risk to lose foreign investors, and therefore, set back the goal of long term economic sustainability in the region. However, China has already made its investment policies safer with establishing three international commercial courts (also referred to as Belt and Road courts), one in Xi’an for the land-based Silk Road Economic Belt, one in Shenzhen for the Maritime Silk Road and one in Beijing that will serve as the headquarters. These courts will be offering litigation, arbitration and mediation services. According to one view, China aims to have all belt and road initiative (BRI) disputes resolved by these courts. This makes Pakistan position more awkward and needs proactive measures, as CPEC investment is based on Pakistan foreign direct investment policies and legal structure. Therefore, it will be complicated and less favourable for Pakistan to deal with such cases under Chinese Courts. Originality/value The paper’s primary contribution is finding that comprehensive analysis of alternative dispute resolution mechanism between China and Pakistan over CPEC investment is inevitable. A socio-legal research combine with an examination of Singapore International Commercial Court functions and mechanism and CPEC plans further contributes to ascertain the best model of the settlement of commercial disputes under investments in Pakistan. This research paper anticipates future economic and legal problems, which Pakistan may encounter.
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Nafees, Seeni Mohamed, and Zainal A. Ayub. "Resolution of Islamic Banking Disputes by Way of Arbitration in Sri Lanka." Arab Law Quarterly 30, no. 4 (October 20, 2016): 305–35. http://dx.doi.org/10.1163/15730255-12341329.
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Islamic banking is a new, rapidly growing business, which is competing with its counterpart in Sri Lanka. As in any other area of business, emergence of disputes arising among stakeholders of Islamic banking is quite natural. However, the ability to resolve such disputes without destroying the business relationship is quite important. Many disadvantages inherent in the process of litigation may prompt those involved to seek an alternative way of dispute resolution (adr), offering less formality, lower costs and protection of privacy. Hence, in this respect, adr could be proposed as an ideal mechanism. This article strives to examine the possibility to apply arbitration for Islamic banking dispute resolution in Sri Lanka. Sri Lanka’s Arbitration Act No. 11 of 1995 may play a significant role in this sense.
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Brinn, Hope. "Improving Employer Accountability in a World of Private Dispute Resolution." Michigan Law Review, no. 118.2 (2019): 285–314. http://dx.doi.org/10.36644/mlr.118.2.improving.
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Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.
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Afriana, Anita, and Efa Laela Fakhriah. "UNDERSTANDING THE PLURALITY OF CONSUMER DISPUTE RESOLUTION IN INDONESIA: A COMPARATIVE STUDY WITH SINGAPORE." Yuridika 34, no. 1 (January 1, 2019): 1. http://dx.doi.org/10.20473/ydk.v34i1.9091.
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Globalization has impacted many aspects of human life, one of which is an acceleration of trade transactions between producers and consumers. Despite of numerous advantageous that it brings, globalization also has a potential to cause various disadvantageous and loss to the consumers that ultimately lead to consumer disputes. In general, consumer disputes involve small amount of loss and complaint filed by the consumers for material compensation. In Indonesia, consumer dispute resolution is carried out not only by the Consumer Dispute Settlement Board (BPSK) but also through the courts. Recently, there are many newly-established consumer dispute settlement institutions. This article is part of a completed study discussing a plurality of consumer dispute settlement in Indonesia and a comparative analysis with the one available in Singapore. The study applies normative juridical research method and qualitative juridical analysis, it can be concluded that the plurality of consumer dispute settlement in Indonesia has led to convoluted mechanisms and procedures in settling disputes. This leads to a lack of legal certainty. The comparative law study being the instrument of this study is a critical instrument in the framework of legal reformation. Result shows that in Singapore, consumer disputes are resolved by a Small Claims Procedure method on State Court and through CASE as a private non-litigation agency with specific consumer characteristics and disputes.
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Yunansa, Vediyas Puspa, and Umar Ma'ruf. "The Legal Consequences Of The Unregistered Notarial Agreement Related To Paragraph 40 Government Regulation No. 24 Of 1997 About Registration Of Land On The Perspective Of Legal Philosophy." Jurnal Akta 5, no. 2 (May 16, 2018): 385. http://dx.doi.org/10.30659/akta.v5i2.3091.
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The land disputes caused by unregistered notarial agreement according to Paragraph 40 Government Regulation No. 24 the Of 1997 about registration of the land creates a legal issue in the society. The unfinished process of implementation causes legal uncertainty to all parties. The authentic agreement or certificate of ownership has the similar legal force and valid to all the holders. The legal consequences of the unregistered notarial agreement related to Paragraph 40 Government Regulation No. 24 the Of 1997 about the Land Registration will cause “null and void”. So the legal position related to the ownership of the land title certificate is undamaged (the legal issue doesn’t change) according to the rights holder written on it. There are two ways of completion, which are the land dispute resolution by Court (Litigation) and the land dispute resolution by non-Court (Non-Litigation).Keywords: Notarial Agreement; Land Registration; Legal Philosophy.
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Turkanova, V. "MAIN APPROACHES TO EFFECTIVE DISPUTE RESOLUTION." Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, no. 114 (2020): 60–64. http://dx.doi.org/10.17721/1728-2195/2020/3.114-12.
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The topic of effective dispute resolution has been explored, as various conflicts are an integral part of public life or, as scholars rightly point out, conflicts are inevitable. The approaches used to resolve them are diverse and characterize the evolution of justice – from traditional litigation to modern alternative conciliation procedures and the so-called "conflict management", which helps not only to resolve disputes but also to maintain normal and productive relations between its participants in future. Alternative dispute resolution can be seen as a reaction to the significant increase in the number of appeals to court, the increase in court costs and the increase in court hearings, which inevitably accompany this form of protection of rights during the twentieth century. The first studies ~ 64 ~ ВІСНИК Київського національного університету імені Тараса Шевченка ISSN 1728-3817 of alternative dispute resolution procedures can be found in the 1940s, but the interest of researchers increased significantly in the 1960s and 1970s, which led to the implementation of the concept of out-of-court protection in many countries, but not to dispute resolution. The basic modern approach to dispute resolution is characterized as a constructive dialogue for finding a compromise by any means, based on the vision of conflict as an integral and inevitable phenomenon that accompanies the dynamics of human relations. A change in the perception of the conflict should lead to a change in the established tools for their settlement into a comprehensive system that allows not so much to resolve it as to control, thus endowing it with constructive features that generally contribute to the development of productive relations. Accordingly, referring to our chosen epigraph, the vision of disputes as a basis for battle will grow into an awareness of their usefulness, if they are settled and controlled by experts.