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.
Full textMaster of Science
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.
Full textWong, 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.
Full text"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.
Rivlin, Jennifer N. "Conflict management climate related to employment litigation." Diss., Georgia Institute of Technology, 2001. http://hdl.handle.net/1853/29532.
Full textWilson, 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.
Full textKwong, 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.
Full textDe, 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.
Full textThesis (LLM)--North-West University, Potchefstroom Campus, 2013
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.
Full text"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.
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.
Full textAlternative 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.
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.
Full textMaclons, 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.
Full textCivil 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.
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.
Full textIncludes bibliographical references.
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.
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.
Full textThis 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.
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.
Full textThe 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.
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/.
Full textMozer, 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.
Full textAsperti, 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/.
Full textThe 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.
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.
Full textLignelet, Brice-Joris. "Dématérialisation et procédure civile." Thesis, Montpellier, 2015. http://www.theses.fr/2015MONTD067.
Full textPaperless 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
Isnard, Numa. "Le règlement des différends entre opérateurs de communications électroniques." Thesis, Université Paris-Saclay (ComUE), 2015. http://www.theses.fr/2015SACLS054.
Full textDispute 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
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.
Full textPeace 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]
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/.
Full textThe 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.
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/.
Full textThe 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.
Assongba, Cossi Hervé. "Les contentieux en transport maritime de marchandises par conteneurs." Thesis, Lille 2, 2014. http://www.theses.fr/2014LIL20005/document.
Full textThe 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
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.
Full textThe 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
Faris, J. A. "An analysis of the theory and principles of alternative dispute resolution." Thesis, 1995. http://hdl.handle.net/10500/16772.
Full textConstitutional, International & Indigenous Law
LL.D.
Lavigne, Joseph C. "Construction contract claims and methods of avoiding contract litigation through dispute resolution alternatives." Thesis, 1993. http://hdl.handle.net/10945/24134.
Full textWeng, 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 text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.
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.
Full text"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.
Full textNkabinde, Fortunate Thobeka. "Mediation : an alternative dispute resolution in medical negligence cases." Diss., 2018. http://hdl.handle.net/10500/25499.
Full textJurisprudence
LL. M.
Ahmed, Jessica Amber. "Persuasion strategies for litigators and negotiators : what’s the difference?" Thesis, 2013. http://hdl.handle.net/2152/23529.
Full texttext
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.
Full text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%).
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.
Full textMercantile Law
LL.M.
Fernandes, Heliane Sousa. "Produção de prova pericial pré-contenciosa." Master's thesis, 2019. http://hdl.handle.net/10316/86686.
Full textThis 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).
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 textA 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.
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 textThis 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.
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 textMercantile Law
LL.D.