Dissertations / Theses on the topic 'Litigation, Adjudication and Dispute Resolution'
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Thompson, Roxene Marie II. "Efforts to Manage Disputes in the Construction Industry: A Comparison of the New Engineering Contract and the Dispute Review Board." Thesis, Virginia Tech, 1998. http://hdl.handle.net/10919/36625.
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The construction industry has been plagued with an increasing number of claims and high litigation costs. How do we reduce conflict and litigation in the construction process? On one hand, leaders of the construction industry in the United States (US) focused their efforts on improving alternative dispute resolution mechanisms. For instance, the American Society of Civil Engineers has introduced the Dispute Review Board (DRB) as a complementary provision to standard US construction practices. The establishment of the DRB to solve construction disputes on the job, avoid claims, and reduce project costs has proven considerable success. On the other hand, construction industry leaders in the United Kingdom (UK) have focused some of their efforts on improving general contract conditions. The Council of the Institution of Civil Engineers of the UK has introduced the New Engineering Contract (NEC) to the construction industry as an alternative to presently used contracts. The NEC proposes to be an innovative, non-adversarial mechanism to resolve disputes on the job, avoid and reduce claims, and to assuage rising litigation costs in the construction industry. It too has proven considerable success in its efforts. This research concentrates on the DRB and the NEC as attempts by construction leaders to modernize and improve construction practices. In summary, the research compares the success stories of the DRB and the NEC as approaches to combating the adversarial nature, increasing number of disputes and rising litigation costs in the construction industry. The main conclusions ascertained in this research are as follows. Despite coming from similar business environments, construction industry leaders in the US and the UK embarked on different methods to address the issues plaguing the industry and to improve construction practices. Both in the US and the UK, construction leaders were mostly influenced to proactively seek and implement change in construction practices by experts from within the engineering and construction industry vanguard. The undertaking of these changes have shown similar success stories and the results have produced substantial impacts on the construction process. In conclusion, the efforts of construction leaders to implement the DRB and the NEC have provided effective mechanisms in improving communication and relations, and managing disputes in a timely fashion at the job site level.Master of Science
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Borrie, N. C. "An evaluation of the use of mediation in environmental dispute resolution under s.268 of the Resource Management Act 1991." Lincoln University, 2002. http://hdl.handle.net/10182/2118.
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Since the 1970s there has been a growing interest in, and utilisation of, Alternative Dispute Resolution (ADR) techniques to resolve environmental conflicts in western societies. ADR was incorporated into one of New Zealand's main environmental statutes, the Resource Management Act 1991(RMA). Under s.268 of the RMA the Environment Court (the Court) may, if the parties agree, conduct mediation in order to facilitate settlement of resource management disputes. The RMA, which has now been in operation for ten years, gives no guidance as to the way in which mediation is to be conducted. The Court has developed procedures and processes for administering and conducting mediation. This study critically evaluates the practice of Court assisted mediation of environmental disputes under the RMA. A literature review and interviews with stakeholder groups are used in this evaluation. The study shows that mediation generates benefits for the Court and participants. It also identifies limitations with the current mediation procedures and processes. These may impact the effectiveness of participants in mediation, their satisfaction with, and support for, the mediated settlement and with the environmental outcomes. The study recommends a series of guidelines be prepared on the functions and administrative procedures of the Court and on the mediation process promoted by the Court. Further research is also recommended. It is considered that these recommendations, if implemented, will enhance the process for participants, ensure more equitable and consistent environmental outcomes, in terms of present and future generations, and retain public confidence in the mediation process.
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Wong, Doris Pui Sze. "Can adjudication become more popular in Hong Kong construction industry?" access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21324293a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2005."A dissertation submitted in partial fulfillment of the requirements for the degree of Master of arts in arbitration and dispute resolution." Title from title screen (viewed on Sept. 20, 2006) Includes bibliographical references.
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Rivlin, Jennifer N. "Conflict management climate related to employment litigation." Diss., Georgia Institute of Technology, 2001. http://hdl.handle.net/1853/29532.
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Wilson, P. "The socio-legal dynamics of HIV and AIDS." Thesis, University of Oxford, 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.282066.
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Kwong, John Ka Sing. "Conflict avoidance and dispute resolution methods for public works contracts and the adoption of dispute resolution advisor system and adjudication in Hong Kong." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833659a.pdf.
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De, Oliveira Michélle Branco. "Dispute resolution under the general conditions of contract 2010 / Michélle Branco de Oliveira." Thesis, North-West University, 2012. http://hdl.handle.net/10394/8671.
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In the light of the nature of the construction industry and the fact that it is often burdened with disputes arising from the contract, appropriate and unique alternative dispute resolution procedures are indispensable for disputes to be resolved quickly, efficiently and effectively. Section 34 of the Constitution of the Republic of South Africa, 1996 provides for the right to have disputes resolved by means of a public hearing before a court, alternatively, where appropriate, by means of an independent, impartial forum. Arbitration, mediation, conciliation and adjudication, to name but a few, are alternative methods used in resolving South African construction disputes. Some of these alternative dispute resolution (ADR) methods are provided for in the Construction Industry Development Board recommended standard contracts. This study entails an analysis of the ADR methods in construction agreements with specific reference to the General Conditions of Contract for Construction Works 2010 (GCC 2010) and a comparison thereof with the English position. The application of the recommended ADR methods in the South African construction industry, especially adjudication, faces many challenges. There is no certainty as to the definition nor the procedure to be followed in the use thereof. The study concluded that there is a definite need for the contract to be reviewed, in particular the dispute resolution clause. The introduction of on- line dispute resolution was also recommended. This will contribute towards efficient, effective and expedient dispute resolution that is required due to the nature and role of the construction industry in a country‟s economy. There is also a definite need for legislation to be implemented which will assist in clarifying as well as regulating the adjudication procedure as used in the South African construction industry.Thesis (LLM)--North-West University, Potchefstroom Campus, 2013
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Choi, Wai Ping. "A study of the adoption of adjudication in e-commerce disputes in Hong Kong and the way forward." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21843144a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006."A dissertation submitted in partial fulfillment of the requirements for the degree of Master of Arts in arbitration and dispute resolution, School of Law, City University of Hong Kong" Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.
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Gerber, Marcel. "Alternative dispute resolution in the BRICS nations: A comparative labour law perspective." University of the Western Cape, 2019. http://hdl.handle.net/11394/6996.
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Magister Legum - LLMAlternative dispute resolution refers to forms of dispute resolution, other than traditional and formal court based litigation. A notable benefit of alternative dispute resolution is that different processes are available for resolving a particular dispute in the most effective and efficient manner possible. Alternative dispute resolution includes but is not limited to arbitration, mediation, negotiation, conciliation and facilitation. The Constitution of the Republic of South Africa, 1996, lists human dignity, equality and the advancement of human rights and freedoms as the founding values of the Republic of South Africa. In terms of section 9(1) of the Constitution everyone is regarded as equal before the law and has the right to equal protection and benefit of the law in South Africa. Often it is however argued that traditional court based litigation hinders the full enjoyment of these rights by individuals. Consequently, alternative dispute resolution is attractive as an alternative to court based litigation as it is regarded as less expensive, more time effective and results in less conflict when it comes to resolving disputes in the most accessible, effective and efficient manner possible, in both developed and developing countries. The study will first focus on the pitfalls to traditional court based litigation in South Africa. The relevant legislation and processes which provide for alternative dispute resolution processes in South Africa, with specific focus on alternative dispute resolution in labour disputes, will be considered. Consideration will be given to the provision of alternative dispute resolution as contained in the Constitution, the Labour Relations Act 66 of 1995, the Rules for the Conduct of Proceedings before the CCMA of 2003 and the Arbitration Act 42 of 1965. The study will thereafter proceed to consider the use of alternative dispute resolution in labour disputes in Brazil, Russia, India and China, who, together with South Africa, are collectively referred to as BRICS. These five nations are considered the world’s leading emerging economies, with similar economic capabilities and demographics.
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Lam, So-wai, and 林素慧. "The feasibility in the use of statute-based adjudication for dispute resolution in the construction industry in Hong Kong." Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2007. http://hub.hku.hk/bib/B45164770.
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Maclons, Whitney. "Mandatory court based mediation as an alternative dispute resolution process in the South African civil justice system." University of the Western Cape, 2014. http://hdl.handle.net/11394/4407.
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Magister Legum - LLMCivil litigation is the primary method of dispute resolution in the South African civil justice system. This process is characterised by a number of shortcomings which include the adversarial nature of the process which often creates further conflict between disputing parties and often results in permanently destroyed relationships between them. Further shortcomings include the highly complex, costly and time-consuming nature of civil litigation. These shortcomings infringe on the constitutional imperative of access to justice for South Africans, particularly for the indigent members of society. In addition, court rolls have become overburdened due to the rapidly increasing volume of litigation at court. This often results in extensive waiting periods before matters are heard at court and further infringes the attainment of access to justice. While progress has been made in enhancing the civil justice system over the years, the aforementioned shortcomings prevail. In recent years the South African government has introduced the concept of mandatory court based mediation to the civil justice system with the view of promoting access to justice and enhancing the civil justice system. In a nutshell, mandatory court based mediation refers a civil dispute to mediation once an appearance to defend is entered at court, in order to attempt the settlement of the matter. In the event of the dispute not being resolved, the matter is then referred back to the conventional litigation process for resolution. Mandatory court based mediation, while controversial and bearing valid criticism; aims to promote access to justice and reconciliation between aggrieved parties and remedies a number of the shortcomings currently plaguing the South African civil justice system. In answering the research question of whether this ADR process is suitable to implement in South Africa in order to remedy the shortcomings of its civil justice system, the following aspects are considered in this thesis: the benefits, advantages, and the constitutionality of mandatory court based mediation, as well as the criticisms and challenges of the process. South Africa may have an adversarial civil justice system, but is no stranger to the practice of mediation. Within South African civil law a number of fields have mentioned mediation as the preferred method of dispute resolution over years. These areas of law will be highlighted in this thesis. Internationally, the jurisdiction of the Australian states of New South Wales and Victoria will also be highlighted. This analysis is done in order to assess the implementation and function of a mediation system, as a preferred method of dispute resolution, across all areas of civil law within an adversarial civil justice system. The current civil justice system in South Africa needs to be remedied due to its negative impact on civil disputants and the nation of South Africa in a broader sense. This thesis does not suggest that mandatory court based mediation is a panacea for all ills plaguing the country’s civil justice system. However, this ADR process may suit South Africa and its implementation may make a considerable remedial contribution and possibly significantly enhance its civil justice system.
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Richardson, Robin Kieron. "Alternative dispute resolution in Intellectual Property Law: a growing need for a viable alternative to court litigation." Master's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/4436.
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The need for a viable alternative to court litigation of intellectual property disputes is much needed in modern legal systems. IP court litigation has become expensive, time consuming, and poor decision making has led to unpredictable and inconsistent results. This paper explores the possibility of using alternative methods, such as mediation and arbitration, to resolve complex IP disputes. The paper critiques modern judicial systems and analyses how alternative methods may be better suited to the resolution of IP disputes. Particular attention is paid to the issues present in the South African legal system and what steps are needed to implement a workable and regulated alternative to the High Court system. The paper concludes that alternative dispute mechanisms are well suited to the resolution of IP disputes but that South Africa needs to take progressive steps towards the realisation of such a system.
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Mirindo, Frank. "Environmental Dispute Resolution in Tanzania and South Africa: A Comparative Assessment in the Light of International Best Practice." Thesis, University of the Western Cape, 2008. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_9222_1263173869.
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This research examines the effectiveness of these dispute resolution mechanisms in environmental disputes and what improvements should be made in order to make those mechanisms suitable for these types of disputes.
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Öztunali, Timur Mete. "Mediation as an alternative to litigation: A comparative study between South Africa and Germany." University of Western Cape, 2019. http://hdl.handle.net/11394/7573.
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Magister Legum - LLMThe judicial court system in South Africa is overburdened, which results in parties having to wait for long periods of time to have their matters settled or even heard. Furthermore, the cost of litigation in South Africa is immense, which prevents the biggest part of the population from access to justice in line with s 34 of the Constitution of 1996. Therefore, alternative methods of dispute resolution are worth looking into. This paper will compare the mediation system of South Africa with that of Germany. This will allow for a better insight in regard to mediation within South Africa, which can help to address the above stated problems.
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Shoraka, Shahram. "World trade dispute resolution and developing countries : taking a development approach to fair adjudication in the context of WTO law." Thesis, London School of Economics and Political Science (University of London), 2006. http://etheses.lse.ac.uk/1962/.
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The founding of the World Trade Organization in 1995, was hailed as a new era in resolving global trade disputes, with many academicians espousing a constitutionalised vision of world trade law. The constitutional evolution of WTO law is founded, not only on the text of the WTO Covered Agreements, but is also buttressed exceedingly by precedence and norms that are generated through adjudication by the panels and the standing WTO Appellate Body. Today, as is with most mature legal systems, international lawyers and academics avidly critique WTO jurisprudence and the interpretive methodology of its adjudicators. However, there is a dearth of scholarship on the implications of WTO law interpretation on developing nations. This thesis fills this void in research by constructing a framework for analysing the jurisprudence of the WTO from the perspective of developing nations. Subsequently, it proceeds to evaluate three agreements which are important for developing nations, i.e., the DSU and due process rights, the TRIPS Agreement, and the Antidumping Agreement. To this end, the framework for analysis is termed "the development approach" to fair adjudication, which is grounded on established legal concepts of legitimacy, justice and ultimately fairness. The thesis demonstrates that a fair trading regime entails more than seemingly balanced treaty texts, but rather that adjudication of the treaties must include an approach, which recognises and accounts for the effects of interpretation on development. To this end, the adjudicators have to go beyond merely finding the literal meaning of the treaty text, but embrace an approach, which is guided by the context and purpose of WTO provisions. The analysis reveals that the adjudicators of the WTO have failed to recognise the nexus between interpretation and development and as such, have created a body of case law that harms the development ambitions of third world countries.
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Mozer, Joseph F. "The ecclesial ombudsman as a means to honor rights and avoid litigation." Theological Research Exchange Network (TREN), 2006. http://www.tren.com/search.cfm?p029-0675.
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Asperti, Maria Cecília de Araujo. "Meios consensuais de resolução de disputas repetitivas: a conciliação, a mediação e os grandes litigantes do judiciário." Universidade de São Paulo, 2014. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-27012015-163101/.
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Direito processual civil, Mediação e conciliação, Reforma judiciáriaThe proliferation of individual claims repeating factual and/or legal matters have inspired procedural reforms aimed at the standardization of judgments, the consolidation of precedents and the collectivization of individual claims and searching for effectiveness and legal certainty. Another important response to this repeated litigation is the promotion of consensual dispute resolution, especially conciliation and mediation in the courts. This research investigates how consensual mechanisms are used by courts to deal with repeated litigation and which are the practices and techniques specifically aimed at repeated disputes. The characteristic elements of these repeated disputes are the similarity of the factual and/or legal arguments, the representativeness of the volume of claims and the fact that one of the parties litigates in similar disputes more often, while the other in involved in such type of cases only occasionally. These repeat players are known as the great litigants of the Judiciary, and enjoy certain advantages in terms of bargaining power, resources and information in view of their size and the frequency with which they are involved with similar cases. An empirical research was carried out court programs in Brazil and the United States to study the perceptions of the actors involved in the design and operation these programas on the issues raised. It was found that repeated litigation is a crucial part of court conciliation and mediation programs, influencing the role of the main stakeholders (parties, lawyers and conciliators/mediators), screening and case management practices, access conditions, specific techniques and the role played the Judiciary, who shall also act as manager, designer and institutional mediator. It is concluded that the structure of these programs and the role of those involved can be key factors for an adequate treatment of repeated disputes in the judicial context.
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Dheka, Gilbert. "A comparative analysis of community mediation as a tool of transformation in the litigation systems of South Africa and the United States of America." University of the Western Cape, 2016. http://hdl.handle.net/11394/5514.
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Lignelet, Brice-Joris. "Dématérialisation et procédure civile." Thesis, Montpellier, 2015. http://www.theses.fr/2015MONTD067.
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La dématérialisation des méthodes de traitement, de transmission et de conservation de l’information modifie substantiellement les rapports économiques et sociaux. Le domaine juridique n’aurait pu rester étranger à ce mouvement de fond. Le droit et la justice s’en trouvent bouleversés jusque dans leurs organisations, leurs méthodes et leurs métiers. L’adaptation du droit aux technologies numériques désormais acquise, les craintes et résistances liées à leur intégration dans le fonctionnement judiciaire surmontées ; la dématérialisation des actes du procès et leur communication électronique se généralisent. Une phase de maturation débute à présent, celle d’un retour au droit de la procédure civile et de l’appréciation que la jurisprudence fera de ces innovations technologiques. Il conviendra dès lors de veiller à ce que cette appropriation serve pleinement les intérêts des justiciables et de la justicePaperless methods of data production, process and records management has substantially changed both the economic and social relationships. Therefore, French law and justice could not have ignored these technological evolution which is deeply impacting their own organisation, methods, and professions. The necessary adaptation by French law and Justice to digital technologies now acquired, and concerns or fears on their integration into the civil litigation process being overcome ; dematerialisation of procedural acts and their communication in electronic forms are generally used. Regarding this technological reality, attention needs henceforth to be directed towards the role of each relevant actor of the French E-justice to make sure that such proceedings allow a fair trial to any litigant
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Isnard, Numa. "Le règlement des différends entre opérateurs de communications électroniques." Thesis, Université Paris-Saclay (ComUE), 2015. http://www.theses.fr/2015SACLS054.
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Le règlement de différends dans le secteur des communications électroniques est un mécanisme quasi-juridictionnel particulier, à mi-chemin entre droit public et droit privé. Mis en œuvre au sein de l’ARCEP, régulateur sectoriel sous le statut d’autorité administrative indépendante, ce mécanisme, qui s’est progressivement structuré et ouvert au fil du temps, produit néanmoins un contentieux spécialisé. En effet, il ne concerne en pratique que les seuls opérateurs réglementairement qualifiés et a pour objet la défense d’un droit économique : l’accès, matérialisé par le droit à l’interconnexion. Cet accès aux réseaux des opérateurs en présence est vital pour le développement et le maintien d’un marché ouvert et atomisé. Dès lors, l’intérêt d’une étude approfondie sur le règlement de différends dans le secteur des télécommunications est multiple. D’abord, les protagonistes du contentieux évoluent : avec la redéfinition actuelle du statut d’opérateur par l’émergence des collectivités locales (Article L1425-1 CGCT) et l’irruption plus récente d’acteurs utilisant la couche supérieure du réseau (i.e. diffusant seulement du contenu, appelés OTT, pour over-the-top). Puis, la procédure élaborée par le législateur interroge : pourquoi impliquer une personne publique dans des négociations commerciales entre personnes privées ? La dualité du contentieux, oscillant apparemment entre contentieux public en première instance et contentieux privé pour l’appel ne fait que renforcer un peu plus cette singularité qu’il convient d’analyser plus avant. De plus, avec un marché en consolidation et une Europe en intégration, du moins économiquement, la question de l’avenir d’un tel mécanisme se pose, dont la plus récente réforme inclut désormais de possibles cas de contentieux communautaires, avec la participation du BEREC comme organe consultatif. Enfin, notons une place importante accordée aux témoignages et aux expériences de celles et ceux qui font vivre ce contentieux, constituant une tentative d’apporter un éclairage de sociologie juridique à cette étude, entre théorie et pratique d’un contentieux particulier de la régulationDispute resolution is a very specific legal tool, mixing private and public legal elements. The ARCEP, the National Regulatory Authority in France is in charge to regulate the sector and has the power to litigate disputes about interconnection or access. Established in 1996, the ARCEP developed a certain practice of this type of disputes, elaborating a specialized litigation to enforce the right to interconnection, granted by European laws. Such a right is vital for operators in order for them to be able to compete with the incumbent. Consequently, efficiently resolving every dispute to keep market competitive is crucial. Studying such a mechanism has several interests. Firstly, the very concept of operator evolves. Local authorities now have the ability to intervene and deploy networks available for other operators and even the public. More, over-the-top actors providing content services on the Internet have an increasing impact on the networks and they are now competing operators on telecommunications services. Secondly, the procedure is debatable: how a public body can intervene on commercial contracts? As France has a bi-jurisdictional order, splitting courts between private law and administrative law, dispute resolution changes this traditional way, making administrative decisions appealed at the Cour d’Appel de Paris. Lastly, the growing scaling up of the market, from national to European level, questions the ability of ARCEP’s mechanism to evolve.Using a mixed method, combining theoretical and practical approach, we aim to explain how this specific way to make regulation is a real asset for competition
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Tamošiūnas, Mantas. "Taikos sutarčių ypatumai civilinėje teisėje." Master's thesis, Lithuanian Academic Libraries Network (LABT), 2012. http://vddb.laba.lt/obj/LT-eLABa-0001:E.02~2012~D_20120703_155549-86607.
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Taika suteikia galimybę užtikrinti santykių darną, abipusį supratimą, kiekvienam bendrų ir visiems skirtingų poreikių patenkinimą. Taikos siekimas reikalauja įtempto darbo ir didelių pastangų: siekiant taikos, einama lygybės, kompromiso ir abipusės (daugiašalės) satisfakcijos kryptimi. Tik pačios konfliktuojančios šalys žino, koks rezultatas joms būtų priimtinas, patenkinantis jų interesus, teikiantis pasitenkinimą konkrečioje situacijoje ir užkertantis kelią atsinaujinantiems nesutarimams dėl to paties dalyko.
Civilinių teisinių santykių subjektų ginčas efektyviai gali būti išsprendžiamas taikos sutartimi. Šio teisinio instrumento panaudojimas ginčo sureguliavimui įgalina pasiekti bendrą sprendimą, dažniausiai šalis įpareigojantį ir vykdomą dėl jo priimtinumo susitariantiesiems.
Magistrinio darbo tikslas – išanalizuoti Lietuvos Respublikos teismams pateikiamų tvirtinti civilinius teisinius santykius reglamentuojančių taikos sutarčių turinio ypatumus. Darbe glaustai analizuojama lietuvių ir užsienio mokslinės literatūros šaltiniuose bei šalies teisės aktuose įtvirtinta taikos sutarties samprata, įvardijami taikos sutarties turiniui ir formai keliami reikalavimai, apžvelgiami taikos sutartimis išsprendžiamų konfliktų ypatumai, nustatomos taikos sutarčių panaudojimo praktikoje problemos, samprotaujama apie teismuose patvirtintų taikos sutarčių turinio įvertinimo kokybę. Atsižvelgiant į magistriniame darbe atliktą Lietuvos Respublikos teismuose patvirtintų taikos sutarčių... [toliau žr. visą tekstą]Peace enables to ensure consistency of terms, mutual understanding, satisfaction of each common and all different needs. The pursuit of peace requires hard work and huge efforts: in the process of striving for peace, the course of equality, compromise and mutual (multilateral) satisfaction has to be set. It is only the conflicting parties know what the result would be acceptable to them to fit their interests, satisfying in a given situation and preventing from renewable disagreements on the same issue. Legal relations in civil litigation can be effectively resolved with the settled contract. The application of this legal instrument allows resolving the dispute and arriving to common decision, usually binding and thus enforceable due to its acceptability for both contracting parties. The aim of this masters’ theses is to analyze the specific features of the content of settlements of civil legal relations submitted for approval to the courts of the Republic of Lithuania. The paper briefly analyzes the concept of settled contracts embedded in Lithuanian and foreign sources and national legislation, identifies the content and format requirements; an overview of specific features of settled contracts in resolved conflicts are presented, problems of practical applications of settled contracts are determined, the quality assessment of the content of settled contracts approved in courts is considered. Taking into account the analysis of the approved settled contracts in the courts... [to full text]
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Demarchi, Juliana. "Mediação: proposta de implementação no processo civil brasileiro." Universidade de São Paulo, 2007. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-01042008-132345/.
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O presente trabalho aborda a inserção dos meios alternativos de resolução de conflitos no processo civil e propõe a consideração de tais métodos como técnicas processuais voltadas ao atingimento dos escopos da jurisdição, tomada essencialmente como função pública voltada à pacificação de conflitos. São apresentados os institutos fundamentais do processo civil e se parte de uma releitura do processo civil a partir da busca da efetividade e da consideração do escopo da pacificação como escopo magno da jurisdição, o que justifica a introdução de meios complementares de solução de conflitos voltados à promoção da solução consensual dos litígios. Tem-se, então, em certa medida, a ampliação do objeto de estudo do processo civil. Tendo em vista a necessidade de se agregar novos institutos à consecução dos escopos do processo, os meios alternativos de solução de conflitos passam a ser tratados não mais como meros equivalentes jurisdicionais, mas como ferramentas do próprio sistema processual para a consecução de seus escopos. Isso conduz ao alargamento do objeto da ciência processual, à alteração do conteúdo programático das Escolas de Direito e à formação de um novo profissional da área jurídica. Dentre os métodos de resolução de conflitos existentes, são descritas a negociação, a conciliação, a avaliação neutra e a mediação, com destaque para esta última pela maior amplitude de aplicação e de técnicas utilizadas. São apresentados os fundamentos teóricos da mediação, as principais técnicas utilizadas e o procedimento que se recomenda seja observado para a condução adequada dessa forma de solução de controvérsias. Descritos esses métodos, passa-se à abordagem de algumas experiências de aplicação dos meios alternativos de forma complementar ao processo civil, destacando-se especialmente a disciplina legal estabelecida nos Estados Unidos da América e na Argentina. O presente trabalho culmina com a apresentação de um cronograma de instalação de setores de mediação anexos ao sistema judicial, abordando o recrutamento de mediadores, a capacitação necessária, o papel dos operadores do direito na empreitada e a metodologia de trabalho empregada, tudo a partir das bases legislativas já existentes em nosso ordenamento e do sucesso do projeto de gerenciamento de casos elaborado pelo CEBEPEJ - Centro Brasileiro de Estudos e Pesquisas Judiciais. A ampla utilização da mediação como instrumento de pacificação e consecução dos escopos da jurisdição já é possível independentemente de legislação própria .e específica, embora a institucionalização possa constituir um instrumento importante da divulgação e implementação da mediação em nossa sociedade. Buscou-se lançar as bases teóricas e práticas do uso da mediação como ferramenta de consecução dos escopos da jurisdição, principalmente o da pacificação, a partir de uma visão diferenciada do conflito e da necessidade de formação de um novo profissional da área jurídica, incorporando ao processo civil métodos complementares de solução de conflitos marcados pelo traço da interdisciplinaridade que permitirão alcançar o processo civil que se almeja: efetivo, célere e voltado preponderantemente à pacificação dos conflitantes.The present work tackles the insertion of alternative dispute resolution methods in civil procedure, and proposes to consider these methods as procedural techniques focused on obtaining the scope of the jurisdiction, taken essentially as a public function towards the pacification of disputes. The fundamental institutes of civil procedure are presented from a new reading in the field, seeking effective solutions and considering the scope of pacification as a substantial scope of jurisdiction, thereby justifying the introduction of supplementary means for the resolution of disputes focusing on the promotion of a consensual resolution of disputes. The subject of study of civil procedure is hence to some extent broadened. In view of the necessity to aggregate new institutes in order to attain the scopes of the process, the alternative dispute resolution methods are henceforth treated not as mere jurisdiction equivalents but as tools of the very procedure system for the attainment of its scopes. This leads to the widening of the subject of the science of civil to the modification of programme contents in the Colleges of Law and to the building of a new law professional. Negotiation, conciliation, neutral early evaluation and mediation fall within the methods used to resolve disputes, particular emphasis being laid on the latter due to the extent of its application and the techniques used. The theoretical foundations of mediation, the main techniques used and the recommended procedure to be observed for a proper execution of this form of resolution of controversies are presented. Once completed the description of those methods, we shall move onto the experience of the application of alternative means as a supplementary form in civil proceedings, while highlighting more particularly the legal discipline established in the United States of America and in Argentina. This work then culminates with the presentation of a schedule for the insta1lation of additional mediation sectors alongside the judicial system, while tackling the recruitment of mediators, the necessary qualification, the role played by law professionals in this enterprise and the work methodology employed, all of which from the legal bases existing in our ordinance and the success of the case management project elaborated by CEBEPEJ - the Brazilian Judicial Studies and Research Centre. The wide use of mediation as a pacification tool for the attainment of the scopes of jurisdiction is a1ready possible, regardless of the specific legislation itself, although the institutionalisation may constitute an important tool for the release and implementation of mediation in our society. The purpose of this study was to set the theoretica1 bases and practices of the use of mediation as a tool to attain the scopes of jurisdiction, and mainly that of pacification from a differentiated viewpoint of dispute and from the necessity of qualifying a new legal professional by incorporating supplementary methods into civil proceedings for the resolution of disputes marked by the trait of an interdisciplinary approach, hereby making it possible to reach the civil procedure aspired to: an effective and diligent proceeding turned most and foremost towards the pacification of the parties in dispute.
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Takahashi, Bruno. "O papel do terceiro facilitador na conciliação de conflitos previdenciários." Universidade de São Paulo, 2015. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-08042016-165122/.
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A conciliação judicial de conflitos previdenciários envolve, em geral, uma proposta de acordo baseada na renúncia pelo indivíduo de parte dos valores do benefício em atraso em um processo no qual a decisão contrária ao entendimento do Instituto Nacional do Segurado Social (INSS) é muito provável. Como regra, há um notório desequilíbrio de poder envolvendo, de um lado, um litigante ocasional (indivíduo) e, de outro, um litigante habitual (INSS). O presente trabalho pretende discutir qual o papel do terceiro facilitador nesse contexto, de modo a legitimar a prática existente e avançar para uma mudança de paradigma. Para tanto, parte-se da tese de que a conciliação deve ser adequada ao conflito que se pretende tratar, cabendo ao terceiro facilitador atuar de acordo com as peculiaridades desse conflito. Desse modo, propõe-se que, para o tratamento do conflito previdenciário, o conceito de conciliador deve ser entendido em termos amplos, abrangendo não apenas o conciliador leigo, mas também o juiz conciliador e o Judiciário como conciliador interinstitucional. Embora cada uma dessas atuações possua características próprias, sustenta-se que o ponto em comum é o respeito a um devido processo legal mínimo que possibilite a existência de uma base adequada de poder e que permita, assim, a tomada de uma decisão informada pelas partes. Dessa forma, a flexibilidade instrumental própria da conciliação não impediria o estabelecimento de parâmetros mínimos da atuação do conciliador. Por isso, tendo como limite a tomada de uma decisão informada, o conciliador atuaria por meio de estratégias variadas, aproximando-se e distanciando-se das partes, com maior ou menor interferência, de acordo com as características do caso apresentado. Conclui-se que, com a atuação conjunta e coordenada das diversas espécies de conciliador é possível aprimorar qualitativamente a conciliação de conflitos previdenciários.The court-connected conciliation (or evaluative mediation) of pension funds conflicts in Brazil involves, generally, an agreement in which the individual plaintiff waives part of a benefit in a lawsuit that the defendant, a national government agency called Instituto Nacional do Seguro Social (INSS), will probably loose. As a general rule, there is a significant imbalance of power between a one-shotter (individual) and a repeat player (INSS). The present work aims to discuss the role of the conciliator (or evaluative mediator) in this scenario, in order to legitimate the current practice and to allow a paradigm shift. Firstly, it argues that conciliation should be appropriate to the conflict to be resolved and that the conciliator also should act according to the peculiarities of this conflict. Therefore, it proposed that the definition of conciliator might be enlarged to cover not only the lay person who acts as a conciliator, but also the judge as a conciliator and the Judiciary as an interinstitutional conciliator. Although each specie has its own characteristics, it is argued that the common point is that all must try to guarantee the observance of a minimal due process of law which allows the existence of an adequate basis of power and thus enable parties to make an informed decision. Consequently, the flexibility of the conciliation rules would not prevent the establishment of minimum standards of the conciliator\'s performance. Limited by the aim to allow parties to make an informed decision, the conciliator would act through a variety of strategies. It means being close or far from the parties, interfering in a greater or a smaller level, depending on the characteristics of a particular conflict to be dealt. To sum up, this work concludes that, if the three species of conciliator work together in a coordinated way, it could be possible to have a qualitative improvement in the conciliation of pension funds conflicts.
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Assongba, Cossi Hervé. "Les contentieux en transport maritime de marchandises par conteneurs." Thesis, Lille 2, 2014. http://www.theses.fr/2014LIL20005/document.
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Le transport maritime par conteneurs est devenu universel compte tenu de son caractère multimodal. Le succès de ce mode de transport est aussi lié à l’implication de plusieurs professionnels tant du monde privé que du monde public. Cependant, le transport de conteneurs constitue un univers de contentieux parfois inconnus. L’usage de ces boîtes fait l’objet de contentieux de nature privé, mais également des contentieux de nature administrative. Bien que des Conventions internationales règlementent le transport maritime en général, l’inadaptation de certaines de ces normes ne facilite pas la résolution de ces contentieux. Et, comme l’administration des douanes est en amont et en aval dans l’exécution du contrat de transport, son intervention ne reste pas sans soulever des contentieux dont la résolution implique deux ordres de juridictionsThe container shipping has become universal because of its multimodal nature. The success of this mean of transport is also linked to the involvement of many professionals from both private and public sectors. However, the container shipping constitutes a field of litigation sometime ignored. The use of these boxes involves not only litigations of private nature but also of administrative nature. Although some international conventions regulate shipping in general, the unsuitability of some of these norms does not help the settlement of these litigations. And, as the customs administration is upstream and downstream involved in the execution of the contract of carriage, its involvement is a source of disputes whose settlement implies two different kinds of courts
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Partida, Sebastian. "La convention d'arbitrage dans le droit des nouvelles puissances économiques (Chine, Inde, Brésil, Mexique)." Thesis, Paris 2, 2019. http://www.theses.fr/2019PA020049.
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Les profondes mutations du commerce international, avec en particulier l'émergence de nouvelles puissances économiques et l’accélération de la révolution numérique, nous invitent à revoir les distinctions traditionnelles entre les différents droits de l'arbitrage. Si l'on peut observer un mouvement d'uniformisation des droits dans les pays occidentaux, en particulier avec une convergence des droits de Common Law et des droits continentaux, qu'en est-il dans les pays qualifiés hier d’ « émergents »? Assiste-t-on à ce même phénomène ? Des particularismes ressortent-ils? L'objet de cette thèse sera d'examiner les spécificités de quatre grands pays - la Chine, l’Inde, le Brésil et le Mexique - dont le poids démographique et économique ne cesse de croître dans les échanges internationaux. Dans une démarche comparative, nous nous intéresserons spécifiquement à la convention d'arbitrage, clé de voûte du droit de l’arbitrage, afin d’essayer de comprendre la philosophie et le traitement réservé à ce mode de règlement des différends dans chacun des ces pays. Cela nous conduira à nous interroger sur la place actuelle du droit français de l’arbitrage, longtemps considéré comme avant-gardiste, et sur son influence dans les années à venirThe profound changes in international trade, particularly in light of the emergence of new economic powers and the acceleration of the Digital Revolution, lead us to revisit the traditional distinctions between the different national arbitration laws. While a movement of standardization of national laws has been observed in Western countries, particularly with a tendency of convergence between Common Law and Civil Law jurisdictions, what about the countries that were qualified yesterday as "emerging"? Is the same phenomenon true for the them and Do particularisms emerge? The purpose of this thesis will be to examine the specificities of four major countries - China, India, Brazil and Mexico - whose demographic and economic weight is growing in international trade day by day. Through a comparative approach, we will focus specifically on the arbitration agreement, being the keystone of arbitration law, in order to try to understand the philosophy and treatment reserved to this dispute resolution method in each of these countries. This will inevitably lead to question the current place of French law, long considered as avant-garde, and its influence in the years to come
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Faris, J. A. "An analysis of the theory and principles of alternative dispute resolution." Thesis, 1995. http://hdl.handle.net/10500/16772.
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The system of Alternative Dispute Resolution, commonly known as ADR, comprises
multiple informal processes. Traditional processes of negotiation, mediation and
arbitration are primary processes within the system of ADR. The elements of the primary
processes have been combined with one another or with those of public process to form
hybrid ADR processes original only to the system of ADR. These hybrid processes are:
rent-a-judge, the mini-trial, the summary jury trial, neutral evaluation and
mediation/arbitration. Under the auspices of ADR, derivative processes have also been
developed, such as expedited arbitration, documents-only arbitration, final-offer
arbitration and quality arbitration.
Each process is distinct and separate, having its own unique form, function and method
of transforming a dispute. Outwardly, this represents a diverse collection of disjunctive
processes. Yet an introspective analysis shows that there is an innate centrality that
originates in core principles that bind individual processes to each other and to a unified
body of theory. These foundational principles of ADR are replicated in each of its
processes. In these terms, ADR is therefore conceptualised as a pluralistic system of
dispute resolution that consists of autonomous and individual systems of process that
conform to a central body of general theory and consensual principles.
As a method of extracting the fundamental principles of ADR, the discontinuities and
continuities between the theory and principles of civil procedure, as a unitary system .of
procedure, and ADR processes are explored. However, in its conclusions, the thesis
rejects the premises of a unitary system of procedure as forming the basis for the theory
and principles of ADR. Instead, the contrary notion is advanced that ADR is an
independent system of dispute resolution which is based on a theory of processual
pluralism and supported by cogent processual principles.Constitutional, International & Indigenous Law
LL.D.
27
Lavigne, Joseph C. "Construction contract claims and methods of avoiding contract litigation through dispute resolution alternatives." Thesis, 1993. http://hdl.handle.net/10945/24134.
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Weng, Yi-Te, and 翁以德. "A Study on Insurance Dispute Resolution and Derivative Litigation of Financial Consumer Protection Act." Thesis, 2015. http://ndltd.ncl.edu.tw/handle/26094987874159790464.
Full textAbstract:
碩士國立高雄第一科技大學
風險管理與保險研究所
103
In order to protect the interests of financial consumers and to fairly, reasonably and effectively handle financial consumer disputes, thereby reinforcing the financial consumers in markets and promoting development of financial markets, the Legislative Yuan passed the Financial Consumer Protection Act on June 3, 2011, and enforced it since 2012. Moreover, the Financial Ombudsman Institution (FOI) is established and effectively resolves disputes between financial consumer and financial services enterprise. However, the processing is doubtful. Therefore, this study investigated ’’a study on insurance dispute resolution and derivative litigation of financial consumers protection act’’. Based on the law regulation, then observing the practice and formal principle, we could clarify the litigation cases of the matters in dispute. This study investigated that because the insurance companies are equipped with the economic status and professional knowledge of insurance, the policy holders are placed in a minority. In addition, after rejecting the aftermath, the policy holders should have the right of ‘’veto power’’, ‘’review’’ and ‘’testify’’ in the future.
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Gaspar, Inês Isabel Bragança Mourão Mendes. "The impact of blockchain technology on commercial dispute resolution." Master's thesis, 2020. http://hdl.handle.net/10400.14/37053.
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"The psychological impact of civil litigation: A comparison of perceived anxiety levels in civil litigation as viewed by trial and alternative dispute resolution litigants." CAPELLA UNIVERSITY, 2007. http://pqdtopen.proquest.com/#viewpdf?dispub=3246080.
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Nkabinde, Fortunate Thobeka. "Mediation : an alternative dispute resolution in medical negligence cases." Diss., 2018. http://hdl.handle.net/10500/25499.
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Medical negligence is a growing concern within South Africa.1 The medical environment has great potential for conflict, because even the best trained physicians can commit errors that result in medical disabilities and sometimes in death.2 The conflicts that follow from these errors are mostly fuelled by emotions and they can become very expensive and time-consuming to settle using the litigation process.3 There is a growing recognition that alternative dispute resolution (ADR) systems in healthcare may alleviate some of the financial and psychological burdens on doctors and patients involved in medical negligence disputes. Mediation is a method of ADR that is flexible and it permits the parties to the dispute to have control over the resolution.
A typical medical negligence dispute is driven by intensely emotional factors on the part of injured patients. Victims are not merely seeking financial compensation but they are also looking to understand the circumstances that brought on the event at hand. They want closure. A huge issue with regard to medical negligence litigation is the manner in which the claims are resolved. Litigation provides injured patients and caregivers with a traditional platform for addressing medical negligence claims. However, due to many reasons, this system seems not to be adequate for dealing with disputes arising from alleged medical negligence. Mediation offers a promising solution to the problems surrounding redress of medical negligence disputes.Jurisprudence
LL. M.
32
Ahmed, Jessica Amber. "Persuasion strategies for litigators and negotiators : what’s the difference?" Thesis, 2013. http://hdl.handle.net/2152/23529.
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Persuasion scholars have documented the use of compliance-gaining messages in both negotiation and negotiation. The extant research offers suggestions for litigators and negotiators, but fails to compare the methods of persuasion in the two circumstances in order to advise attorneys and clients which communication messages to employ in the different contexts. The present study explores differences in use of 7 common compliance-gaining message strategies (“It's Up To You”, “This Is The Way Things Are”, “Equity”, “Benefit (Other)”, “Bargaining”, and “Cooperation”; Kellerman, 2004) in separate negotiation and litigation cases. Findings indicate that “This Is The Way Things Are” messages were more frequent in litigation than negotiation, but “Cooperation” messages were more common in negotiation than litigation. No other significant differences in strategy frequency across the different contexts were found. These results indicate that some differences exist between the messages used in negotiation and litigation and that future research should investigate what other messages may be used differently in the two contexts.text
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CHEN, CHIA-LING, and 陳佳伶. "A Study of the Selection of Dispute Resolution Methods in Construction Contracts ：Based on the Characteristics of Arbitration and Litigation." Thesis, 2019. http://ndltd.ncl.edu.tw/handle/dmf239.
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碩士逢甲大學
土地管理學系
107
When disputes occur in different stages of a construction project, concerning such items as design planning, construction funding, project alteration, delay penalties, management fees of due date extension, request for deposit-refunds, operational expenses and ratios of profit distribution, the terms and nature of the resolution process can vary. Therefore, different resolutions may result in various outcomes. The purpose of this study is to analyze the effectiveness of various types of resolutions in a number of construction disputes. This study initially explains dispute resolution procedures and characteristics. Then it uses the legal and regulatory retrieval system of the Judicial Department to identify dispute cases handled through arbitration, and similar dispute cases handled with litigation. As a result, all the information concerning trial duration, legal expenses, and settlement ratios can be sorted and edited. Finally, methods of economic analysis of law are established to provide guidelines in selecting appropriate dispute resolutions based on the various construction stages and types of disagreements. Hopefully, this research can provide resolution references for related construction disputes in the future. Conclusions of this study are as follows: 1. When considering the trial duration of a construction dispute, an arbitration decision generally takes between seven months (the shortest period) and four years and six months (the longest period). However, a court judgment can take between three years and five months (the shortest period) and 12 years or more (the longest period). Therefore, the timeframe for litiga-tion is five to six times longer than arbitration. 2. When figuring out the ratios between the cost of arbitration to a claim and the expense of litigation to a claim, a ratio of 5 to 35‰ is found for arbitration and a ratio of 13 to 42 ‰ is estab-lished for litigation. Therefore, the litigation expenses are about two to three times more than arbitration costs. 3. When comparing the ratios of arbitration settlement to litiga-tion settlement, there is no significant difference between arbi-tration (12 to 98%) and litigation (0 to 100%).
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Bushe, Bernard. "The efficacy of alternative dispute resolution (ADR) in labour dispute resolution : a critical comparative analysis of Botswana, South Africa and Zimbabwe." Diss., 2019. http://hdl.handle.net/10500/26223.
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This Master of Laws dissertation is a treatise of “The efficacy of Alternative Dispute Resolution (ADR) in labour disputes: a critical comparative analysis of Botswana, South Africa (RSA) and Zimbabwe.” Alternative Dispute Resolution hereinafter referred to as (“ADR”) has attracted so much research ado worldwide with policy makers alive to its possibilities in so far as it ought to shed off the burden of the courts in handling disputes. Courts are considered inundated with unresolved cases taking many years to finalise. ADR is therefore touted, not only the panacea, but the cheaper, efficient and effective alternative to normal court process. This study was saddled with the common challenges of definition, scope and methodology as does most scientific studies, especially to locate the concept ADR in the plethora of views from prominent exponent-s of the discipline. This study labored on the considered view that ADR is essentially an ‘out of court settlement approach to dispensing with disputes involving an attempt by disputants to rope in an impartial third party to aid finality to the respective wrangle. The lack of a methodological approach to treat this subject matter, made this study more challenging. The study had to therefore rely on a hypothetical model developed after gleaning through various scholarly views 1 that sought to treat the subject of ADR efficacy in labour dispute resolution. The study contented with the strongly held view 2 that ADR is an efficacious approach in resolving disputes outside the court system. As to whether this was the case in Botswana, RSA and Zimbabwe in so far as labour dispute resolution is concerned was the major challenge this study was seized with? A model was formulated which envisaged that efficaciousness of ADR may be achieved if three conditions or criteria are present within a jurisdiction, namely (1) ADR Background Conditions that comprise (a) adequate legislative and political support; (b) Supportive institutional and cultural norms, (c) adequate and competent manpower, (d) sufficient funding support, and (e) power-parity of disputants; (2) ADR Program Design comprising of (a) Planning and preparation and (b) Operations and implementation and finally (3) ADR Measures (a) Client satisfaction; (b) Time efficient; (c) Cost saving and (d) Settlement & enforcement. This study measured the situations obtaining in the three countries using these three-pronged criteria. In all three measures3 this study found that although all the three countries still have a long way before their ADR became as efficacious as would be reasonably possible, RSA has made many strides such as legislative enactments immediately upon attaining independence that sought to address the injustices of the past and thereby installing structures for enforcing industrial democracy 4, while Botswana and Zimbabwe took 5 years 5 and over 10 years 6 respectively after attaining independence. RSA established an independent body for dispensing with labour dispute settlement7 while Botswana8 and Zimbabwe 9 are still reluctant to do so, relying rather on their labour ministries often marinated in bureaucratic bottlenecks hence stalling efficacy of ADR. While RSA makes effort to provide adequate and competent manpower because of sufficient funding, Botswana and Zimbabwe still struggle to dispense with disputes under their labour departments who are either inadequately skilled or also accused of favouritism in the case of Zimbabwe.10 All the three countries are regarded as unequal societies which tends to sway the power-parity of disputants with capitalists still wielding unbridled powers in dispute outcomes. South Africa enacted section 143 to the Labour Relations Act 11 which empowers the Director of CCMA to certify an arbitral award, giving it the same force as an order of the Magistrate Court. This has cut off the time and administrative burden of having to register an arbitral award with the court so as to obtain writs of executions and enforce it, a practice which is still prevalent in Zimbabwe. The Department of Labour in South Africa has made funding available to the CCMA to assist employees who are not in a financial position to enforce awards in their favour.12 The funding is aimed at employees who are too indigent to afford the costs of enforcement.13 These employees are deemed to be: (a) Employees who earn below the earnings threshold (currently at R205 433.30 per annum) – proof of income will be required by the CCMA. There is no record regarding enforcement or ease of enforcement of ADR outcomes in Botswana and Zimbabwe or at least this study is aware of. The governments of Botswana and Zimbabwe have been accused of using a heavy hand in determining wages, the right to strike and often curtailing union power through declaring certain sectors essential services. RSA’s Commission for Conciliation, Mediation and Arbitration hereinafter after referred to as (the “CCMA”)14 runs an electronic system of case management by which cases are screened and assigned commissioners whereas Zimbabwe and Botswana still rely on manual systems often inefficiently managed especially when it comes to allocating matters to ADR interventionists.15 In Zimbabwe the challenge of resources is acute often the Labour Officers lacking a simple photocopier and postage stamps to dispense with administration of disputes. This dissertation found that Botswana and Zimbabwe lack publicly available information from which to infer the efficaciousness of ADR practices therein. Measuring client satisfaction, efficiency and cost effectiveness, enforcement and settlement has not been tackled with ease, which was different when it came to RSA. This study argues that RSA’s ADR is efficacious rated at 75% attainment of settlement of disputes, despite accusations of failing to offer disputants options and job retention at the end of ADR intervention. Botswana and Zimbabwe on the measures raised above are not yet close to achieving efficaciousness based on the above criteria. The challenges need to be addressed to ensure that in all three measures ADR affords Botswana, RSA and Zimbabwe disputants a cheaper, efficient and effective alternative to dispensing with labour disputes. This study concluded with recommendations arising from the three measures ADR Background Conditions; ADR Program Design and (3) ADR Measures could be implemented towards achieving an efficacious ADR regime for the three countries and beyond.Mercantile Law
LL.M.
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Fernandes, Heliane Sousa. "Produção de prova pericial pré-contenciosa." Master's thesis, 2019. http://hdl.handle.net/10316/86686.
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Dissertação de Mestrado em Direito apresentada à Faculdade de DireitoThis dissertation analyzes the production of pre-litigation evidence in the scope of Alternative Dispute Resolution - ADR, with special emphasis on Mediation. To systematize the study on the subject, it is necessary to go through the roots and conceptualization of the main institutes created from the ADR. The access to Justice principle is studied as the basis for an enlargement of State Justice provision, including extrajudicial conflit solutions. Subsequently, under the framework of expert evidence, it explores the judicial and extrajudicial pre-litigation procedures already existing in the Civil Law and Commom Law legal systems by means of a comparative study. Finally, the effects of an insertion of a binded pre-litigation evidence production procedure in the current legal systems, and consequently, their impact on the judicialization demands praxis are critically considered.The general objective of the study is to analyze how the production of pre-litigation expert evidence can be able to modify access to justice, encouraging alternative forms of conflict resolution. The specific objectives were developed throughout the work in three chapters. The first one seeks to understand, initially, the historical context of the emergence of alternative / adequate methods of conflict resolution, against the paradigm of the judicialization of demands and the re-reading of access to justice in the current processualistic. The second chapter covered the definition and presentation of expert evidence, based on Portuguese legislation. Subsequently, it was examined how the pre-litigation evidence was considered in the main legislations of the Continental System (Portugal, Brazil, Spain and Italy) and also in English Procedural Law (United Kingdom), by analyzing the procedures of preaction protocols. At this point, the inquisitive and cooperative process models were analyzed, using comparative study techniques. In the last chapter we tried to answer the central question of the work, by analyzing the potential effects of the unjudgmental production of pre-litigation expert evidence. Points markedly present in the alternative dispute settlement culture (out-of-court settlement, access to justice, the principle of self-preservation of the parties' wishes, lack of mediator imperative, and the cost criterion) were assessed.
Analisa-se a produção de prova pericial pré-contenciosa no âmbito dos meios alternativos de resolução de controvérsias (Alternative Dispute Resolution – ADR), dando especial ênfase à Mediação. Para sistematizar o estudo sobre tema, é necessário percorrer as raízes e conceituação dos principais institutos criados a partir da ADR. Estuda-se o princípio do acesso a Justiça como princípio-base para um alargamento da prestação jurisdicional pelo Estado, incluindo-se as soluções de conflitos extrajudiciais. Em seguida investiga-se, no contexto da prova pericial, os procedimentos judiciais e extrajudiciais pré-contenciosos já existentes nos ordenamentos jurídicos do sistema Civil Law e Commom Law, por meio de estudo comparado. Por fim, reflete-se criticamente os efeitos da introdução de um sistema obrigatório de produção de prova pericial pré-contenciosa nos ordenamentos atuais, e consequentemente, seus impactos na modificação da cultura de judicialização de demandas.O objetivo geral do trabalho é analisar de que forma a produção de prova pericial pré-contenciosa pode ser capaz de modificar o acesso à justiça, incentivando formas alternativas de solução de conflitos. Os objetivos específicos foram desenvolvidos ao longo do trabalho em três capítulos. No primeiro busca-se entender, inicialmente, o contexto histórico de surgimento dos métodos alternativos/adequados de solução de conflito, frente ao paradigma da judicialização de demandas e a releitura do acesso à justiça na processualística atual. O segundo capítulo percorreu a definição e apresentação da prova pericial, tendo como base a legislação Portuguesa. Em seguida, passou-se a analisar como a prova pericial de caráter pré-contencioso foi contemplada nas principais legislações do Sistema Continental (Portugal, Brasil, Espanha e Itália) e também no Direito Processual Inglês (Reino Unido), pela análise dos procedimentos de pre action protocols. Nesse ponto foram analisados os modelos inquisitivo e cooperativo de processo, utilizando-se das técnicas de estudo comparado.No último capítulo buscou-se responder à questão central do trabalho, através da análise dos potenciais efeitos da desjudicialização da produção de prova pericial pré-contenciosa. Foram avaliados pontos marcadamente presentes na cultura alternativa de solução de controvérsias (a via extrajudicial, o acesso a justiça, o princípio do autorregramento da vontade das partes, ausência de imperatividade do mediador e o critério de custas).
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Stadnick, Tatiana. "A resolução alternativa de litígios em linha e o paradigma da justiça eletrônica: reflexões prospectivas acerca do direito do consumo na União Europeia e no Brasil." Master's thesis, 2020. http://hdl.handle.net/1822/74415.
Full textAbstract:
Dissertação de mestrado em Direito da União EuropeiaA presente pesquisa está inserida na Linha de Pesquisa Direito e Jurisdição da Universidade do Vale do Itajaí e é desenvolvida no âmbito do Mestrado em Direito da União Europeia da Universidade do Minho, possuindo como objetivo analisar os métodos alternativos de solução de litígios online (online dispute resolution – ODR’s) e o paradigma da justiça eletrônica, apresentando reflexões e perspectivas acerca do direito do consumo na União Europeia e no Brasil, produzindo dissertação de Mestrado em Dupla Titulação. A justificativa para a realização da presente Dissertação está na cultura do litígio instaurada na sociedade moderna que gera excesso de causas, muitas vezes, desnecessárias, ocasionando morosidade na resolução dos processos pelos métodos tradicionais de solução de conflitos. Diante do cenário apresentado, surge a necessidade de criar novos métodos alternativos e sustentáveis para solucionar os litígios de forma célere e eficaz, visando desafogar o Poder Judiciário, e buscando o aumento das conciliações. Para tanto, a justiça eletrônica, através do estabelecimento de mecanismos de resolução alternativa de conflitos de caráter digital, mostra-se uma opção viável que corresponde a esses interesses. Contudo, é necessário analisar de que forma ela tem alavancado a proteção da parte mais fraca na relação de consumo.
This research is part of the Law and Jurisdiction Research Line of the University of Vale do Itajaí and is carried out within the scope of the European Union's Master of Laws at the University of Minho, aiming to analyze the alternative methods of online dispute resolution (online dispute resolution - ODRs) and the electronic justice paradigm, reflections and perspectives on the right to consumption in the European Union and Brazil, producing a Master's dissertation in Dual Degree. Justification for the accomplishment of this Dissertation is in the culture of litigation established in modern society that generates excess of causes, many times, unnecessary, causing the delay in the resolution of the processes by the traditional methods of conflict resolution. Given the scenario presented, increase the need to create new alternative and sustainable methods to resolve disputes in a famous and effective way, challenging the Judiciary and seeking to increase reconciliations. For this, electronic justice, through the establishment of mechanisms for resolving digital character conflicts, shows a viable option that corresponds to these interests. However, it is necessary to analyze how it has the protection of the weakest part of the consumption relationship.
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Dostie-Nicol, Marilou. "L'arbitrage intérimaire des différends dans le secteur de la construction : application et perspectives au Québec." Thèse, 2019. http://hdl.handle.net/1866/23680.
Full textAbstract:
Ce mémoire se penche sur l'opportunité d'introduire en droit civil québécois l'arbitrage intérimaire obligatoire pour les différends du secteur de la construction. Ce mécanisme est principalement utilisé dans les pays de « common law » pour un règlement rapide des différends en matière de construction. Ce domaine d’activité est propice aux litiges, notamment en raison des aspects techniques, de la diversité et du nombre d'acteurs impliqués et des sommes en jeu, particulièrement en contexte de grands chantiers. Les procédures judiciaires peuvent être longues et fastidieuses. Ces délais se traduisent par des coûts supplémentaires pour les parties, non seulement pour la procédure elle-même, mais également pour la prolongation du projet (salaires, machineries, assurances, etc.). Devant ces défis, les juridictions de common law ont développé un processus qui se veut expéditif pour régler les différends en temps réel et en minimiser l'impact jusqu'à la procédure finale, une fois les travaux terminés. Le but est d’éviter qu’un différend ne dégénère ou paralyse le projet jusqu’à en compromettre la réalisation. À notre connaissance, aucune juridiction de droit civil ne prévoit un tel mécanisme, bien que les défis soient à priori les mêmes. Nous nous interrogeons sur les raisons expliquant cette absence. Le nouveau Code de procédure civile tend vers les modes alternatifs des différends et dans ce contexte, nous nous interrogeons sur l'opportunité d'incorporer un mécanisme semblable pour l'industrie de la construction au Québec. Enfin, nous étudierons les adaptations qui pourraient être nécessaires à l'application d'un tel processus, issu de la common law, en droit civil québécois.This master thesis explores the possibility of introducing a compulsory interim arbitration mechanism for the resolution of disputes in the construction sector in Quebec civil law. As of today, such procedure is mainly used in common law jurisdictions for the rapid settlement of construction disputes. Construction is a sector that is particularly prone to litigation, mainly because of the technical aspects, the diversity and the number of actors as well as the sums involved, particularly in the context of major projects. Court proceedings can be long and tedious. These delays result in additional costs for the parties, not only for the procedure itself, but also for the extension of the project (wages, machinery, insurance, etc.). In response to these challenges, common law jurisdictions have developed an expeditious process to resolve disputes in real time and minimize their impact until final proceedings are completed. The aim is to prevent a dispute from escalating and eventually, paralyze the project itself and jeopardizes its realization. To our knowledge, no civil law jurisdiction provides for such a mechanism, although the challenges are a priori the same. We question the reasons for this absence. The new Code of Civil Procedure tends towards alternative dispute resolution and in this context, we are wondering about the possibility of incorporating a similar mechanism for the construction industry in Quebec. Finally, we will evaluate the adaptations that may be advised for the application of such a process, because of its common law, origins, in Quebec civil law.
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Nyenti, Mathias Ashu Tako. "Developing an appropriate adjudicative and institutional framework for effective social security provisioning in South Africa." Thesis, 2012. http://hdl.handle.net/10500/9986.
Full textAbstract:
Developing an adjudicative institutional framework for effective social security provisioning in South Africa entails the establishment of a system that gives effect to the rights (of access) to social security and to justice. These rights are protected in the Constitution and in various international law instruments. In the Constitution, the Bill of Rights guarantees everyone the right to have access to social security, including appropriate social assistance for persons who are unable to support themselves and their dependants. It further requires the State to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to access to social security. Since a dispute resolution (adjudication) framework is an integral part of any comprehensive social security system, it is included in the constitutional obligation of the State. The establishment of a social security adjudication system is an intersection of the right of access to social security and the right of access to justice. The Constitution states that everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
In addition, other rights protected in the Constitution have a bearing on the realisation of the rights of access to social security and to justice. There is a close correlation between all the rights in the Bill of Rights, as they are interrelated, interdependent and mutually supporting. They must all be read together in the setting of the Constitution as a whole and their interconnectedness must be taken into account in interpreting rights; and in determining whether the State has met its obligations in terms of any one of them. These rights, which include the right to equality (section 9), the right to human dignity (section 10) and the right to just administrative action (section 33) must thus be considered in establishing a social security adjudication system. Also to be considered are other constitutional prerequisites for the establishment of a social security adjudication system, such as the limitation and enforcement of rights (sections 36 and 38 respectively); principles relating to courts and the administration of justice (Chapter 8) and basic values and principles governing public administration (Chapter 10).
In establishing a social security adjudication system in South Africa, international law standards and developments in comparative systems must also be taken into account. The Constitution adopts an international law- and comparative law-friendly approach. It states that when interpreting fundamental rights, international law must be considered while foreign law may be considered (section 39).
This thesis aims to develop an adjudicative and institutional framework for effective social security provisioning in South Africa that realises the rights of access to social security and to justice in the South African social security system. This is achieved by exploring the concept of access to justice, and its application in the social security adjudication system. The current social security adjudication system is evaluated against the concept of access to justice applicable in international and regional law instruments, comparable South African (non-social security) systems and comparative international jurisdictions. Principles and standards on the establishment of a social security adjudication system are distilled; and a reformed system for South Africa is proposed.Mercantile Law
LL.D.