Journal articles on the topic 'Litigation, Adjudication and Dispute Resolution'
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1
Broadbent, Nigel. "Alternative Dispute Resolution." Legal Information Management 9, no. 3 (September 2009): 195–98. http://dx.doi.org/10.1017/s1472669609990326.
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AbstractFollowing the enactment of the Civil Procedure Rules in 1999, potential litigants are expected to pursue alternative means to litigation for solving their disputes. In this article, Nigel Broadbent a Director at Lupton Fawcett LLP in Leeds clearly explains the various activities which fall within ADR, including mediation, family dispute resolution, arbitration, conciliation and adjudication.
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Mazani, Quratul Ain, Siti Suhaidah Sahab, and Zulhabri Ismail. "Trends of Adjudication Cases in Malaysia." MATEC Web of Conferences 266 (2019): 03001. http://dx.doi.org/10.1051/matecconf/201926603001.
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The construction industry is a fertile source of dispute. Payment disputes in the Malaysian construction industry are ancient issues that have been causing problems among construction players for decades. The settlement of disputes can be done by using the Alternative Dispute Resolution (ADR) in lieu of other alternatives or as a complement to Litigation. This paper is focused on Adjudication as a preferred dispute resolution method for the Malaysian construction industry. The enforcement of the Construction Industry Payment and Adjudication Act (CIPAA 2012) in 2014 is intended to provide swift dispute resolution and relief to unpaid construction industry claimants for work done, and facilitate cash flow in the construction industry as a whole. The purpose of this research is to establish the trends of adjudication cases that were intervened by the court within the period of April 2014 until February 2018, which is since the implementation of CIPAA 2012 in Malaysia. In order to determine a vast majority of matters that have been referred for adjudication under CIPAA 2012 and parties in dispute constitute the highest number of referrals, sixty-two court cases were identified. This research also reviewed previous case laws to identify the factors contributing to court referrals. Based on the review, most of adjudication cases in the Malaysian construction industry involve the Main contractor and Employer as dispute parties with the intention of challenging adjudication decisions as there has been excess of jurisdiction pursuant to Section 15 (d) applied by appellants together with the application enforcement of adjudication decision under Section 28 by respondents. The findings will be used as a platform to establish the dispute scenario of the Malaysian construction industry under the CIPAA 2012.
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Rasyid, Abdul. "Relevance of Islamic Dispute Resolution Processes in Islamic Banking and Finance." Arab Law Quarterly 27, no. 4 (2013): 343–69. http://dx.doi.org/10.1163/15730255-12341267.
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Abstract In the Islamic legal system, the ways in which disputes are resolved generally fall under two categories. The first category is through litigation, namely in Islamic courts (al-qaḍāʾ or adjudication), and the second is through amicable means such as negotiation, conciliation and compromise (naṣīḥah or sincere advice), mediation (ṣulḥ), arbitration (taḥkīm), mediation along with arbitration (ṣulḥ and taḥkīm), an ombudsman (muḥtasib), expert determination (Mufti’s fatwā, pl. fatāwā), etc. These mechanisms are called alternative dispute resolution (ADR) that refers to a range of dispute resolution processes which are alternative to traditional litigation. Over time, the term ADR is now coming to mean ‘appropriate dispute resolution’ or the most appropriate resolution process in the given circumstances. One of the principal goals of ADR is to provide parties with choices for the effective and efficient resolution of disputes. The above-mentioned dispute resolution processes have different characteristics. This article will discuss only the relevant mechanisms with a view to examine how far they may be suitable to resolve Islamic banking and finance disputes effectively, cheaply and quickly.
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Bimasakti, Muhammad Adiguna. "DISPUTE SETTLEMENT IN THE OMBUDSMAN AND THE COURT OF LAW REGARDING COMPENSATION IN PUBLIC SERVICE DISPUTE." Jurnal Hukum dan Peradilan 10, no. 2 (August 18, 2021): 277. http://dx.doi.org/10.25216/jhp.10.2.2021.277-299.
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Public Service is the embodiment of the main tasks of a governance. But in its implementation sometimes it also causes disputes due to losses experienced by community members due to a bad public service. Therefore Law No. 25 of 2009 concerning Public Services regulates dispute resolution in the implementation of public services. At least there are two types of ways to resolve compensation in public service dispute that caused by Tort in the Public Service, namely the Non-Litigation settlement through the Ombudsman, and the Litigation settlement through the Court. However, in further studies it was found that there was an overlap of authority between the Ombudsman and the Court in resolving public service disputes. This paper will try to discuss this in depth in terms of the philosophy of the existence of the Ombudsman, and its implications for its Special Adjudication authority. Aside from that, this paper will also discusses about the procedure of proceedings in the Administrative Court regarding public service disputes.
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Saeb, Abdollah, Mohd Suhaimi Mohd Danuri, Othman Mohamed, and Norhanim Zakaria. "A Mechanism for Dispute Resolution in the Iranian Construction Industry." Journal of Construction in Developing Countries 26, no. 1 (July 30, 2021): 205–26. http://dx.doi.org/10.21315/jcdc2021.26.1.10.
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If disputes are not resolved promptly, they tend to become prolonged and escalated, creating a more complicated and less manageable scenario. Therefore, in this study, we formulated a mechanism for dispute resolution in the Iranian construction industry based on alternative dispute resolution methods. The formulated mechanism could aid disputing parties in the construction industry to settle their disputes more effectively and enhance dispute resolution methods in construction standard forms. To achieve this goal, we collected qualitative data using semi-structured interviews with 30 experts who were selected via purposive sampling method. We used MAXQDA software to manage and organise complete interview transcripts and facilitate the qualitative data analysis process. The proposed mechanism and guidance were finally validated using the survey questionnaire. Negotiation has equal potential for dispute resolution with different sources, and it is recommended as the first step in dispute resolution with any source. According to the results, we recommend a three-step resolution mechanism as follows: negotiation, a method based on sources of disputes and a hybrid method of adjudication and arbitration (Adj-Arb), as the appropriate mechanism for dispute resolution in the Iranian construction industry. Replacing arbitration with Adj-Arb in construction standard forms will have satisfactory results in resolving construction disputes and reply to growing criticism that arbitration is becoming more like litigation.
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Mitchell, Chester N., and Shona McDiarmid. "Medical Malpractice: A Challenge to Alternative Dispute Resolution." Canadian journal of law and society 3 (1988): 227–45. http://dx.doi.org/10.1017/s0829320100001393.
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Ideally, medical malpractice actions should deter medical negligence and compensate victims in a manner that is fair, speedy, cost-effective and accessible. Tort critics, however, argue that tort law in general and malpractice actions in particular do not match this ideal. But there is considerable debate about whether the identified faults are inherent or optional in tort adjudication. Those who believe adjudication itself is faulty propose alternative strategies including no-fault compensation schemes, public law prosecution and arbitration. In the paper's first section we consider whether the performance of the traditional adversarial system of dispute resolution in medical malpractice cases is inadequate. Arbitration's effectiveness as an alternative to litigation is then evaluated with reference to three arbitration models employed in the United States. We conclude that arbitration reforms offer distinct advantages but are no panacea for some basic justice problems that stem from political, legal and economic power imbalances between physicians and their clients.
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Menjucq, Michel, and Laurent Gouiffès. "The grapes of dispute resolution: arbitration and wine." Arbitration International 36, no. 4 (October 9, 2020): 465–74. http://dx.doi.org/10.1093/arbint/aiaa037.
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Abstract This article explores the interplay between arbitration and wine law and the possibility of having increased recourse to arbitration in wine-related disputes. Since Antiquity, wine production and commercialization have been subject to specific regulations, which have progressively given rise to modern wine law. Wine law is primarily focused on the protection of the geographical origin and branding of wine as well as consumer protection, fields typically inadequate for arbitration. However, wine law also covers wine commercialization and related operations such as vineyard sales, which offer many opportunities for arbitration in the wake of the internationalization of wine production and trade. This is particularly true since the wine sector is characterized by both very specific trade usages and a high degree of technicality, which require adjudicators of wine-related disputes to have a high degree of sectorial expertise. Arbitration therefore appears to be a particularly well-suited means of dispute adjudication for wine-related litigation, as illustrated by the authors’ experience.
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Malintoppi, Loretta. "Methods of Dispute Resolution in Inter-state Litigation: When States Go to Arbitration Rather Than Adjudication." Law & Practice of International Courts and Tribunals 5, no. 1 (2006): 133–62. http://dx.doi.org/10.1163/157180306777156835.
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AbstractWhen States decide to litigate their legal differences, different factors – not always of a strictly legal nature – come into play that can tilt the balance in favour of arbitration or judicial settlement. This article does not purport to take a position in favour of arbitration, as opposed to adjudication by an international court or tribunal, but merely to identify some of the considerations which a State may be confronted with when it selects arbitration amongst the available alternatives for inter-State dispute resolution. When diplomacy fails, and adjudication by a permanent court or tribunal is not the preferred solution, international arbitration is considered to be an effective and equitable means of settling a dispute.
9
Supriyadi, Supriyadi, Mohammad Gufron AZ, and Kadek Wiwik Indrayanti. "Juridical review of construction contract disputes in Indonesia." Jurnal Cakrawala Hukum 13, no. 3 (December 28, 2022): 325–36. http://dx.doi.org/10.26905/idjch.v13i3.8916.
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Nowadays, the method of resolving disputes through the judiciary has received very sharp criticism from practitioners and legal theorists. The roles and functions of the judiciary are considered to be heavy, slow, take a long time, cost a lot of money, unresponsive in seeing the public interest, and too formal and technical. The problem to be raised in this research is how to resolve construction work contract disputes in Indonesia as regulated in Law Number 2 of 2017 concerning construction services and how to compare construction work contract dispute resolutions through adjudication and arbitration. The results of this study are Based on the description in the Discussion section. It is concluded that the Construction Services Act only stipulates one settlement mechanism, namely dispute resolution out of court (non-litigation). Even in the Construction Work Contract, there is no room to make efforts to resolve disputes through court institutions. Thus, the philosophy (spirit) carried is the concept of a "win-win solution." The stages of dispute resolution efforts include mediation, conciliation, and arbitration. Implementing mediation, conciliation, and arbitration may refer to Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution.How to cite item: Supriadi, S., Gufron AZ, M., Indrayanti, KW., (2022). Juridical review of construction contract disputes in Indonesia. Jurnal Cakrawala Hukum,13(3)325-336. doi:10.26905/idjch.v13i3.8916.
10
Bimasakti, Muhammad Adiguna. "IMPLEMENTATION OF GOVERNMENT PROCUREMENT OF GOODS / SERVICES LAW AS A STATE ADMINISTRATIVE DISPUTE." Jurnal Hukum Peratun 2, no. 2 (December 3, 2019): 213–34. http://dx.doi.org/10.25216/peratun.222019.213-234.
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Public Service is the embodiment of the main tasks of a governance. But in its implementation sometimes it also causes disputes due to losses experienced by community members due to a bad public service. Therefore Law No. 25 of 2009 concerning Public Services regulates dispute resolution in the implementation of public services. At least there are two types of ways to resolve compensation disputes in public services that caused by Tort in the Public Service, namely the Non-Litigation settlement through the Ombudsman, and the Litigation settlement through the Court. However, in further studies it was found that there was an overlap of authority between the Ombudsman and the Court in resolving public service disputes. This paper will try to discuss this in depth in terms of the philosophy of the existence of the Ombudsman, and its implications for its Special Adjudication authority. Aside from that, this paper will also discusses about the procedure of proceedings in the Administrative Court regarding public service disputes.
11
HUDA, Mokhamad Khoirul, Agus Yudha HERNOKO, and Ridwan KHAIRANDY. "The Characteristics of Non-Litigation Resolution for Life Insurance Lawsuit in Indonesia." Journal of Advanced Research in Law and Economics 8, no. 8 (September 3, 2018): 2419. http://dx.doi.org/10.14505//jarle.v8.8(30).12.
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This study analyzed the characteristics of non-litigation resolution for life insurance lawsuit in Indonesia. The result found that the non-litigation solution for life insurance lawsuit in Indonesia must be through Department of Mediation and Arbitration of Insurance (in Indonesia, known as BMAI). When the mediation -as the legal action from a costumer- was objected, the lawsuit would proceed to the adjudication. When the customer won on this adjudication level, the insurance company was then obligated to do some payment as mentioned on the insurance policy. Furthermore, when the legal action of a customer was objected, the customer was then free to do an arbitrage legal action. The arbitration was final and had fixed legal power. Thus, any appeal, cassation, or judicial review could not be held. The solution for life insurance lawsuit through BMAI has several characteristics such as quick in procedures, dynamic, innovative, cheap, and low budget. In addition, the dispute solution through BMAI is confidential, quick in time, and supported by some experts on related types of lawsuit, thus, it may result in fair judgment.
12
Guenin, Louis M. "Alternative Dispute Resolution and Research Misconduct." Cambridge Quarterly of Healthcare Ethics 6, no. 1 (1997): 72–77. http://dx.doi.org/10.1017/s0963180100007623.
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“Any bad settlement,” the wise patent litigator Elmer S. Albritton once observed, “is better than a good lawsuit.” Given the notorious strain of court proceedings and the recognition that settlement does not always prove attainable, a popular movement has recently arisen in favor of “alternative dispute resolution” (or ADR). Indeed it has seemed to many who have participated as committee members, witnesses, or respondents in scientific misconduct cases that there ought to be some method of resolving such matters that is less vexing than traditional adjudication.
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M. Zulhafiz, Wan, ., and . "The Role of Asian International Arbitration Centre (AIAC) as a regional Hub for Oil and Gas Sector." International Journal of Engineering & Technology 7, no. 3.21 (August 8, 2018): 345. http://dx.doi.org/10.14419/ijet.v7i3.21.17185.
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Hydrocarbons projects involve multiple parties, including sovereign states and corporations, to operate expensive, complex and high-risk activities. Alternative dispute resolution (ADR) is often preferred more by the parties than litigation to ensure the smooth running of the projects. ADR refers to all mechanisms of dispute settlement other than litigation such as negotiation, mediation, adjudication, and arbitration. The Asian International Arbitration Centre (AIAC) or formerly known as the Kuala Lumpur Regional Centre for Arbitration (KLRCA) is the main institution that administers and resolves all commercial arbitration disputes in Malaysia. This research argues that, due to the technicalities and complexity of operations in the oil and gas sector, there is a need to set up a special arbitration centre for oil and gas under the AIAC to handle and resolve the industrial disputes. Furthermore, by establishing the centre, it can help to promote the AIAC as the choice of arbitration hub, especially within the Organization of the Petroleum Exporting Countries (OPEC). In doing so, it is necessary to pass a special legal framework to enable the establishment of the centre. It may function as a roadmap by the key players of the oil and gas sector to recourse in resolving disputes. The methodology employed by this research is carried out in a prescriptive, comparative and analytic manner.
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Setiawan, Peter Jeremiah, Xavier Nugraha, and Elma Putri Tanbun. "Reformulation of Dispute Resolution Mechanisms for Public Information Requests to Achieve Constructive Law Enforcement and Legal Certainty." Substantive Justice International Journal of Law 4, no. 1 (June 11, 2021): 25. http://dx.doi.org/10.33096/substantivejustice.v4i1.122.
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The nature of law enforcement in resolving multi-dimensional information disputes has a logical consequence on the need for constructive law enforcement. This research aims to examine the forms of law enforcement that exist in resolving disputes over requests for public information and to formulate a constructive mechanism to realize a series of law enforcement procedures with legal certainty. This research is normative legal research using a statutory and conceptual approach. The results showed that law enforcement in the settlement of public information disputes consists of the objection, non-litigation adjudication, and litigation covering civil, state administration, and criminal law. In this case, The Criminal law instruments are placed as the final law enforcement if the relevant public agency does not carry out a decision that has permanent legal force. In addition, in the context of realizing comprehensive and constructive law enforcement, a Memorandum of Understanding was held between the Information Commission and the Police to synergize and effectively implement the criminal law as a final resort.
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Yanti, Herma. "Implementasi Penyelesain Sengketa Informasi Publik pada Komisi Informasi Provinsi Jambi." Wajah Hukum 6, no. 2 (October 14, 2022): 453. http://dx.doi.org/10.33087/wjh.v6i2.1085.
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The existence of the Jambi Provincial Information Commission is expected to be able to resolve public information disputes effectively and efficiently so that the information disclosure mandated by Law Number 14 of 2008 concerning Public Information Disclosure can be realized. However, as an institution that was newly formed in 2014, of course, it cannot be separated from various limitations that affect the implementation of the Information Commission's functions. Therefore, this study aims to further examine how the implementation of public information dispute resolution at the Information Commission in Jambi Province. According to this purpose, this research is an empirical legal research with a socio legal research approach. The data used in this study are dispute resolutions carried out for the last 3 (three) years from 2019 to 2021. These data were collected through interviews with members of the Information Commission who were related and who understood the problem under study and conducted studies on various documents relevant. From the results of the study, it is known that the Jambi Information Commission has carried out the resolution of the information dispute as determined, but in its implementation it can be said that it has not been carried out effectively and efficiently, because only a small part can be resolved quickly through mediation, most of the others must be resolved further through the process. non-litigation adjudication which consists of several stages so it requires more time. In addition, because not all decisions handed down by the Commission can be accepted by the disputing parties, they will proceed to court.
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Marif Jafarov, Nijat. "THE IMPORTANCE OF THE PRINCIPLE OF CONFIDENTIALITY IN MEDIATION." SCIENTIFIC WORK 65, no. 04 (April 23, 2021): 314–16. http://dx.doi.org/10.36719/2663-4619/65/314-316.
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In the modern world, mediation is becoming an increasingly popular alternative to formal adjudication. Around the world, large-scale mediation programs have emerged, which deal with a huge number of both civil and criminal cases. As mediation becomes more widely used as an alternative method of dispute resolution, a new problem has emerged that threatens its continued viability-confidentiality. Confidentiality is a fundamental characterristic of the mediation process, a key feature that distinguishes mediation from litigation. The principle of confidentiality in mediation is a framework that enhances the security of the parties by giving them confidence that they are in a safe place where what is said and done during the process cannot be disclosed or used against them outside the process. This gives them the freedom to negotiate and increases the chances of successful mediation. This article explains the importance and role of the principle of confidentiality in the mediation process. Key words: alternative dispute resolution, mediation, confidentiality
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Kugler, Kholofelo. "The AfCFTA’s Success Depends on Effective Dispute Settlement Mechanisms for the Private Sector." Global Trade and Customs Journal 16, Issue 11/12 (November 1, 2021): 558–63. http://dx.doi.org/10.54648/gtcj2021070.
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The state-to-state nature of the dispute settlement mechanism (DSM) of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) could serve as a barrier to ensuring dispute resolution under this regional trade agreement. African countries’ low participation in trade dispute resolution at the World Trade Organization (WTO) and within their own regional economic communities (RECs) indicates that these countries either do not have the capacity to resolve trade issues through contentious litigation or those types of dispute settlement mechanisms are not suited to their needs. However, it is important that the AfCFTA ecosystem provides effective and efficient dispute settlement options for the commercial operators that will seek to take advantage of the benefits of the trade agreement. The AfCFTA non-tariff barrier (NTB) Online Monitoring Mechanism is a welcomed addition to the options available to the private sector. However, AfCFTA State Parties must resolve the complaints lodged on that platform swiftly and adequately. In the absence of continental or regional dispute resolution options, it is foreseen that domestic courts will play a large role in adjudicating AfCFTA-related disputes. Therefore, the options that State Parties could avail to private parties include establishing or capacitating commercial courts and arbitration centres to effectively adjudicate AfCFTA-related disputes. Africa, AfCFTA, dispute settlement, DSU, state-to-state, private sector, direct access, domestic courts, arbitration
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Chan, Peter C. H. "Civil mediation in imperial, republican and modern-day China." Tijdschrift voor rechtsgeschiedenis 85, no. 3-4 (December 14, 2017): 577–602. http://dx.doi.org/10.1163/15718190-08534p07.
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This article explores the position of mediation as a means of civil disputes resolution in China’s legal history. While civil adjudication existed in imperial China, the legal tradition of wu song (‘[a society] free from litigation’) played a fundamental role in shaping China’s imperial civil justice system. Under the Confucian ideology, disputes of a civil nature should be settled through conciliatory means so that the amicable relations of the disputants could be maintained. The culture of face-saving and the maintenance of cordial relations remains a distinctive characteristic of the modern Chinese society. This legal historical background provided the ideological foundation for civil procedural systems during the Republican era (1911-1949) and the early days of the People’s Republic (since 1949). The current debate on the contemporary mediation system is placed into the appropriate context when one understands that civil process in China today still operates under the shadow of cultural norms of the traditional Chinese legal order.
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Bizikova, Lucia. "On Route to Climate Justice: The Greta Effect on International Commercial Arbitration." Journal of International Arbitration 39, Issue 1 (February 1, 2022): 79–116. http://dx.doi.org/10.54648/joia2022004.
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Climate change is the greatest global challenge that humankind has ever faced. It has changed the way in which communities, governments and businesses interact with each other, how they contract one with another and what legal disputes they face. National and international legal frameworks currently in place rarely provide the necessary mechanisms to resolve new kinds of disputes that have emerged and as a result, important gaps remain. International commercial arbitration is uniquely placed to respond to the transboundary nature of climate change. Its inherent flexibility, innovativeness, ability to deal with complex, cross-border issues and the possibility to choose a neutral adjudicator according to his/her expertise give commercial arbitration an important advantage over court litigation. However, some of its characteristics that are seen as welcome and desired in different contexts create important challenges for achieving climate justice. Therefore, innovation in this area will be necessary if commercial arbitration is to become an attractive option for resolving climate change-related disputes between businesses. The arbitration community should try to find constructive ways in which commercial arbitration can innovate itself so that it can complement other methods of dispute resolution traditionally used for climate change disputes. climate change, climate justice, ESG, international commercial arbitration, private finance, Paris Agreement, arbitration clause, expertise, transparency, Campaign for Greener Arbitrations, Chancery Lane Project, COP 26
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Orhero, Abraham Ejogba. "CONFLICTS AND CRISES IN NIGERIA: MANAGEMENT AND RESOLUTION FOR PEACE BUILDING." International Journal of Legal Studies ( IJOLS ) 7, no. 1 (June 30, 2020): 361–74. http://dx.doi.org/10.5604/01.3001.0014.3127.
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Conflicts and crises do not imply peace rather they are anti-peace. They stand for or symbolize problems in human society. Historically, Nigeria profiles the highest statistics of violent conflicts in Africa. These conflicts range from land disputes, resource control, and ethnic cleavages to wars of liberation. Unfortunately, the dilemma confronting Nigeria today is not really the occurrence of conflicts and crises in the real sense, but how to resolve them in such a manner as to prevent the past ones from reoccurring and contain the present ones from escalating or degenerating into full-scale war. Therefore, it is against this backdrop that this paper examines the nitty-gritty of conflicts and crises, their antecedents, and their management and resolution in Nigeria. The paper also presents methods for better management and resolution of conflicts and crises in Nigeria. Finally, the paper concludes that the traditional conflict resolution techniques such as mediation, reconciliation, adjudication, and negotiation as well as cross-examination which were employed by Africans in the past, offer great prospects for peaceful co-existence and harmonious relationships in post-conflict periods than the modern method of litigation settlements in law courts. Thus, the paper recommends among others that the Nigeria government, especially the National Assembly should make and implement policies aimed at addressing the root and trigger causes of conflicts and crises in the country.
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Stipanowich, Thomas J. "The International Evolution of Mediation: A Call for Dialogue and Deliberation." Victoria University of Wellington Law Review 46, no. 4 (December 1, 2015): 1191. http://dx.doi.org/10.26686/vuwlr.v46i4.4889.
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The following article is a revised and expanded version of lectures delivered by the author at the Victoria University of Wellington School of Law and the Faculty of Law, University of Auckland in October, 2014 as the New Zealand Law Foundation's International Dispute Resolution Visiting Scholar. The author posits that the mounting global preoccupation with mediation, resulting in a proliferating array of institutions, programmes, laws and regulations; an international "evangelical" movement; and growing impetus for an international convention promoting the recognition and enforcement of mediated settlement agreements, should be accompanied by our collective reflection, dialogue and discernment regarding where we have come to and where we are going. He urges active discussion and deliberation on a host of questions and concerns, including (1) our fundamental understanding of the nature and practice of mediation; (2) the impact of lawyers on mediation, and the appropriate interplay between client and counsel in making process choices; (3) the influence of culture and of legal traditions; (4) the interplay between the facilitation of settlement and processes of adjudication; (5) the potential impact of mediation on the rendition of justice. This conversation should be augmented by an assessment of current mega-trends – the challenges and opportunities presented by information technology, neuropsychology, the mining of big data, and initiatives aimed at institutionalising or professionalising mediation. Finally, there should be a new examination of heretofore-unfulfilled opportunities, such as the "upstream" (that is, early and pre-litigation) use of skills and insights gleaned from our experience with mediation for the purpose of sustaining and improving relationships.
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Holston, James. "The Misrule of Law: Land and Usurpation in Brazil." Comparative Studies in Society and History 33, no. 4 (October 1991): 695–725. http://dx.doi.org/10.1017/s0010417500017291.
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How do we conceive of law if litigation does not aim to settle conflict, if it is a means to perpetuate and obscure rather than resolve disputes? In this essay, I shall demonstrate the power of an unsettling norm: The Brazilian legal system aims neither to solve land conflicts justly nor to decide their legal merits through adjudication. My argument stresses intention and norm because land law in Brazil is so confusing, indecisive, and dysfunctional in its own terms that one suspects that the cause of these characteristics is not incompetence or corruption alone but rather the force of a set of intentions concerning its construction and application different from those aimed at resolution. Thus, I argue that Brazilian law regularly produces unresolvable procedural and substantive complexity in land conflicts; that this jural-bureaucratic irresolution dependably initiates extrajudicial solutions; and that these political impositions inevitably legalize usurpations of one sort or another. In short, land law in Brazil promotes conflict, not resolution, because it sets the terms through which encroachments are reliably legalized. It is thus an instrument of calculated disorder by means of which illegal practices produce law and extralegal solutions are smuggled into the judicial process. In this paradoxical context, law itself is a means of manipulation, complication, stratagem, and violence by which all parties—public and private, dominant and subaltern—further their interests. It therefore defines an arena of conflict in which distinctions between legal and illegal are temporary and their relations unstable.
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Satria, Muhammad Hatta. "PERLINDUNGAN KERAHASIAAN DATA INVESTOR UNTUK PENCEGAHAN KEBOCORAN DATA INVESTOR PADA PERUSAHAAN INOVASI KEUANGAN DIGITAL GOOLIVE." JURISDICTIE 10, no. 1 (July 11, 2019): 1. http://dx.doi.org/10.18860/j.v10i1.6967.
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<p><em>The change in the digitalization era changed the way social interactions and personal relationships interact. Technological advancements facilitate the activities of millennial generations, especially in investing. The investment that is currently trading topic is financial technology. One of the financial technology companies that is the object of this research is Goolive. One of the financial technology companies that is engaged in agriculture uses the equity crowdfunding system. The use of crowdfunding systems, of course, Goolive companies have quite a lot of investors in running their businesses. So the purpose of this study is to find out the security system of the Goolive company in protecting investor data in an effort to avoid data leakage. This research is normative research using two approaches, namely legislation (statue approach) and conceptual approach (conceptual approach). The results of this study indicate that the first Goolive digital financial innovation company in its space is based on the Financial Services Authority Regulation Number / POJK.04 / 2018 concerning Fund Disbursement Services through Equity Crowdfunding and in anticipation of investor data leakage by limiting accessing data, using secret passwords, and changing passwords and verification. Second, the obstacles faced by startup companies are also felt by other startup companies, namely the lack of human resources who are experts in the field of cyber security. Third, financial technology dispute resolution can be carried out with litigation lines (court) or non-litigation channels. Completion of non-litigation can be taken using the APS by means of Negotiation, Binding Opinion, Mediation, Conciliation, Adjudication and Arbitration.</em></p><p><em>Adanya perubahan era digitalisasi mengubah cara berinteraksi sosial dan hubungan personal manusia. Kemajuan teknologi mempermudah aktivitas generasi milenial khususnya dalam berinvestasi. Investasi yang menjadi trading topic saat ini yaitu finansial teknologi. Salah satu perusahaan teknologi finansial yang menjadi objek penelitian ini adalah Goolive. Salah satu perusahaan finansial teknologi yang bergerak dalam bidang pertanian ini menggunakan sistem equity crowdfunding (penggalangan dana). Adanya penggunaan sistem crowdfunding, pastinya perusahaan Goolive memiliki investor cukup banyak dalam menjalankan bisnisnya. Sehingga tujuan penelitian ini untuk mengetahui sistem keamanan perusahaan Goolive dalam melindungi data investor sebagai upaya menghindari kebocoran data. Penelitian ini adalah penelitian normatif dengan menggunakan dua pendekatan, yaitu perundang-undangan (statue approach) dan pendekatan konsep (conceptual approach). Hasil penelitian ini menunjukkan bahwa bahwa pertama perusahaan inovasi keuangan digital Goolive dalam ruang geraknya berdasarkan Peraturan Otoritas Jasa Keuangan Nomor / POJK.04/ 2018 Tentang Layanan Urun Dana Melalui Penawaran Saham Berbasis Teknologi Informasi (Equity Crowdfunding) dan dalam mengantisipasi adanya kebocoran data investor dengan membatasi pengaksesan data, penggunaan sandi rahasia, dan mengganti sandi serta verifikasi. Kedua, hambatan yang dialami perusahaan startup ini juga dirasakan oleh perusahaan-perusahaan startup yang lain yaitu minimnya sumber daya manusia yang ahli dalam bidang cyber security. Ketiga, penyelesaian sengketa teknologi finansial dapat dilakukan dengan jalur litigasi (pengadilan) ataupun jalur non-litigasi. Penyelesaian non-litigasi dapat ditempuh menggunakan APS dengan cara Negosiasi, Pendapat Mengikat, Mediasi, Konsiliasi, Adjudikasi dan Arbitrase.</em></p>
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Casey, Peter M. "The Contract Dispute Act's Statute of Limitations." Texas A&M Journal of Property Law 5, no. 1 (October 2018): 57–105. http://dx.doi.org/10.37419/jpl.v5.i1.4.
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The Contract Disputes Act of 1978 (“CDA”) governs disputes “relating to a contract” between federal executive agencies and contractors. It establishes the process for parties to seek administrative remedies for claims under covered contracts. It also limits the right to judicial review of agency decisions to specific “boards of contract appeals” (“BCA”) and the United States Court of Federal Claims (“COFC”). According to the CDA’s sponsors, Congress enacted the law to bring reliability and order to a hodgepodge of conflicting and inconsistent rules for adjudicating contract disputes used by the various executive agencies. The law aimed to simplify the process for resolving agency-contractor disputes in light of the growing complexities and importance of Government procurement programs. In introducing the bill, its primary sponsor underscored the need for an efficient adjudicatory process in which both Government agencies and the contracting industries had confidence: One cannot dispute the almost universal expressions of industry and the practicing bar that the system needs change. A good remedies system is a major element in good procurement, and a good system depends not only on fairness and justice, but also on whether the people who are subject to the system believe it is fair and just. In some respects, the CDA fell short of providing a comprehensive framework for Government contract dispute resolution and its stated aim to “provide to the fullest extent practicable, informal, expeditious, and inexpensive resolution of disputes.” In particular, the Act did not prescribe any period of time for a party to submit an administrative claim for monetary or other relief after occurrence of the breach or other injury. After sixteen years and many complaints from both Government agencies and contractors about dealing with stale claims, Congress finally adopted a CDA limitations period as part of the Federal Acquisition Streamlining Act of 1994 (“FASA”). That statute of limitations, now codified at 41 U.S.C. §7103(a) (4), provides: Each claim by a contractor against the Federal Government relating to a contract and each claim by the Federal Government against a contractor relating to a contract shall be submitted within 6 years after the accrual of the claim. Decisions by BCAs and Federal Circuit courts under the CDA statute of limitations were relatively rare in the several years following the amendment. Since the early 2010s, however, the number of cases has skyrocketed. This spike in limitations disputes undoubtedly is attributable to the massive increase in military procurement following September 11, including unprecedented spending for goods and services in Afghanistan, Iraq, and other conflict zones. The sheer volume of defense contracts and contractual activity often made it difficult for the parties to recognize and submit claims within six years of the occurrence of the underlying facts. In a relatively short period of time, the tribunals with jurisdiction over defense contract litigation had to decide a large number of limitations disputes with little guidance from direct precedent or legislative or regulatory history. These circumstances have led to case law that is not always consistent in analysis or reconcilable in outcome. Part I of this Article provides an overview of the architecture and key features of the CDA. Part II examines the salient legislative and regulatory history surrounding the adoption of the CDA statute of limitations. Part III discusses when a CDA claim “accrues” and triggers the six-year time period for submitting a claim. In Part IV, we review some of the major issues that arise under the statute in significant and recurrent types of contractor-agency disputes. Part V concludes with a brief evaluation of whether the CDA statute measures up to the “long tradition of judicial authority to formulate rules ensuring fair and predictable enforcement of statutes of limitations.” Increasing litigation about limitations periods are challenging CDA tribunals to develop coherent and consistent criteria for parties to determine when the six-year period begins to run on their potential claims. Arguably, the trial judges have made that challenge more difficult by attempting to impose precedent under the Tucker Act’s non- discovery-accrual standard on FAR 31.201’s “discovery” rule language. That challenge has been compounded by a general tendency of the BCAs and COFCs to find that claims do not accrue until the claimant possesses the information on which the claim is based. It is reasonable to conclude that the decisional law has not matured to the ideal, and perhaps, idealistic, state of consisting of “rules ensuring fair and predictable enforcement of statutes of limitations.” It may also be observed that, despite the FAR Council’s express intent and “knew or should have known” definition of “accrual” in FAR 33.201, the decisional law to date has not developed or applied typical discovery rule analysis in examining the facts of the cases or in judgments whether claims are timely or untimely. With rare exception, the decisions have not dismissed as untimely claims based on when a claimant “should have known” or been aware of the relevant facts where the claimant did not have actual knowledge or possess the information showing that it had a claim. As a result, the precedent offers virtually no guidance on issues traditionally fundamental to a “reasonably should have learned” analysis, which include the following: (1) What information is sufficient to put a claimant on “notice”? (2) Does “notice” itself trigger the period (as Gray suggests), or does the statute initiate when a diligent claimant discovers the facts, or reasonably would have discovered the facts? (3) When and under what circumstances does a claimant have an affirmative duty to make a reasonable inquiry aimed towards “discovery” of potential claims? (4) When and under what circumstances may a claimant rely on the other party’s contractual duties to provide information in deter- mining the nature and extent of any “diligence” expected of the claimant? On a more fundamental level, however, the cases have never ad- dressed whether the FAR’s discovery rule definition of “accrual” appropriately serves as controlling over the definition of the otherwise undefined term “accrual” in section 7103(4)(a) of the CDA. The FAR Council undertook to define the word “accrue” in Section 4(a) pursuant to its general authority to promulgate regulations “as may be necessary to implement this Act,” and not in response to any specific delegation. The failure to examine whether the FAR Council’s adoption of its definition of “accrue” is sufficient under the recent Supreme Court decision relating to proper construction of statutory limitations provisions and, separately, deference to federal agencies in implementing regulations, raises questions of whether any “discovery rule” should apply in CDA statute of limitations cases. In several recent cases, the Supreme Court has sent a strong signal that the courts should not “graft” a “discovery rule” on the term “accrues” or the like in a federal statute of limitations absent “textual, historical, or equitable reasons” to do so. In Gabelli v. SEC, the SEC in 2008 filed a civil enforcement action against defendants for securities law violations between 1999 and 2002 and sought civil penalties, which are subject to a statute of limitations that require an action to be brought “within five years from the date when the claim first accrued.” The SEC argued that the statute is subject to a “discovery rule,” delaying accrual until it discovered or “could have been discovered with reasonable diligence.” The Court rejected that argument: “In common parlance a right accrues when it comes into existence . . . .” . . . Thus the “standard rule” is that a claim accrues “when the plaintiff has a complete and present cause of action.” . . . That rule has governed since the 1830’s when the predecessor to §2462 was enacted. . . . And that definition appears in dictionaries from the 19th century up until today. See, e.g., 1 A. Burrill, A Law Dictionary and Glossary 17 (1850) (“an action accrues when the plaintiff has a right to commence it”); Black’s Law Dictionary 23 (9th ed. 2009) (defining “accrue” as “[t]o come into existence as an enforce- able claim or right”). The Court added: “[T]he cases in which ‘a statute of limitation may be suspended by causes not mentioned in the statute itself . . . are very limited in character, and are to be admitted with great caution; other- wise the court would make the law instead of administering it.’” At a minimum, the CDA forums will need to address, if and when any litigant raises the question, whether “accrues” in section 7103(a) (4) (A) means (1) when the claimant “knew or should have known” of the cause, or (2) in light of Gabelli and other recent precedent, when the claimant “has a complete and present cause of action” regardless of the claimant’s state of mind. In this regard, while the FAR Council and the CDA forums have relied significantly on Tucker Act precedent, neither appears to have considered that, as in the CDA, the Tucker Act does not define “accrue,” and since its enactment, the federal courts consistently have construed “accrue” in the Tucker Act to mean the date when “when all the events have occurred which fix the alleged liability of the United States and entitle the claimant to institute an action.” The Supreme Court, moreover, recently clarified that under the Chevron deference analysis, “deference is not due [a regulatory definition of a statutory term] unless a ‘court, employing traditional tools of statutory construction,’ is left with an unresolved ambiguity. . . . Where . . . the canons supply an answer, ‘Chevron leaves the stage.’” Notably, there is no indication in the record that the FAR Council determined that the CDA statute’s use of “accrue” was “ambiguous,” or adopted its “discovery” definition standard to clarify an ambiguity. On the contrary, it noted the “discovery requirement must remain,” notwithstanding little support and much objection among commentators, because “many pricing defect cases have their original events at the beginning of the contract or on contract award, but often cannot be discovered by the Government until years later.” The CDA forum’s “discovery” rule, and the CDA forum’s default use of that definition, may be vulnerable in light of Gabelli, a growing hostility to Chevron deference, and the regulatory record.
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Amalia, Reva. "MODEL PENYELESAIAN SENGKETA DAN PERKARA PIDANA IN AND OUT SIDE COURT." MASLAHAH (Jurnal Hukum Islam dan Perbankan Syariah) 12, no. 2 (January 21, 2022): 1–14. http://dx.doi.org/10.33558/maslahah.v12i2.3202.
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This study aims to explain the dispute resolution in and out side court (Litigation and Non-Litigation Dispute Resolution) based on the existence of a dispute or criminal case between communities that fight for certain main goals from each party, and put pressure on each other. the other then failed to reach a single opinion and each side tried to consciously fight for their main goals. Which ultimately creates a conflict or dispute that must be resolved both litigation and non-litigation. So that this research can be formulated, namely, related to what is meant by litigation and non-litigation dispute resolution. What is the difference between mediation in litigation and non-litigation dispute resolution, and how to resolve criminal cases outside the court. The purpose of this study is to find out what is meant by litigation and non-litigation dispute resolution and the differences and how to resolve the case or dispute outside the court. This research method uses a normative qualitative method, the results of which conclude that: Litigation dispute resolution is a settlement process carried out in court, while non-litigation is a dispute resolution process outside the court. The process of resolving criminal cases outside the court can be carried out by way of deliberation.
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Petrović, Milena. "Dispute review/adjudication boards: One more alternative to court litigation." Revija Kopaonicke skole prirodnog prava 2, no. 2 (2020): 99–114. http://dx.doi.org/10.5937/rkspp2002099p.
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Dispute board is a relatively new, internationally recognised ADR method, a regular feature of international construction and infrastructure contracts. It is composed of three independent and impartial persons selected by the contracting parties. It's basic function is not only to resolve disputes among the parties, but also, if at all possible, to prevent them from happening. So, the board members help the parties avoid or overcome any disagreements or disputes that arise during the implementation of the contract. They also serve to ensure that, where differences between parties escalate into disputes, issues are resolved equitably and as expeditiously and cost-effectively as possible, so that relationships are enhanced (rather than harmed) for the future. The DBprocess is designed to be fast, cheap and well suited for construction disputes. The parties care fully pick their own panel based on integrity, knowledge of the work, and experience in dispute settlement. Dispute boards are certainly not new but experience over the last twenty years has proven them to be highly successful, relatively inexpensive and the only proactive form of ADR which promotes the avoidance of disputes.
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Gould, Nicholas, and Olivia Liang. "Conflict Avoidance and Alternative Dispute Resolution in the UK Construction Industry." Amicus Curiae 4, no. 1 (November 2, 2022): 155–69. http://dx.doi.org/10.14296/ac.v4i1.5492.
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This article focuses on conflict avoidance and alternative dispute resolution (ADR) in the United Kingdom (UK) construction industry. It seeks to place the use of ADR in the UK in context and to analyse the dispute prevention techniques in standard form contracts. The article also considers the importance of, and processes involved in, mediation and statutory adjudication in construction disputes. It also discusses the key feature of dispute boards and their use in the UK.
Keywords: United Kingdom; conflict avoidance; ADR; adjudication; mediation; dispute boards; DABs; Construction Act; HGRA; HGCRA; NEC3; NEC4; BE Collaborative Contract; PPC2000.
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Malatesta, Deanna, Lisa Blomgren Amsler, and Susanna Foxworthy Scott. "Disputant Experience and Preferences for Mediated or Adjudicated Processes in Administrative Agencies: The Occupational Safety and Health Review Commission Settlement Part Program." ILR Review 73, no. 2 (October 17, 2019): 552–70. http://dx.doi.org/10.1177/0019793919882928.
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Research is limited regarding the type and amount of experience that matters for disputant preferences in dispute resolution processes. The authors focus on a unique federal appellate agency dispute resolution program at the Occupational Safety and Health Review Commission. Participants are professionals with repeat experience who are likely to have future interactions with the agency. Using survey data and regression analyses, the authors find that 1) greater personal experience with mediation or adjudication leads to a greater preference for mediation over adjudication; 2) higher levels of satisfaction with the fairness of process are associated with stronger preferences for mediation over adjudication; and 3) disputants who perceive a fair process in their most recent cases will express a greater preference for mediation over adjudication. Results have important implications for dispute system design.
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Rifdah, Ayudia Nur, Mulyani Zulaeha, and Yulia Qamariyanti. "Commercial Business Dispute Settlement Through Online Non-Litigation Dispute Settlement in Indonesia." Lambung Mangkurat Law Journal 6, no. 2 (September 29, 2021): 267–87. http://dx.doi.org/10.32801/lamlaj.v6i2.247.
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The purpose of the research entitled Settlement of Commercial Business Disputes through Online Non-Litigation Dispute Resolution in Indonesia is to analyze the mechanism for resolving commercial business disputes through non-litigation in the form of ODR in Indonesia and its legal consequences. The research method is in the form of normative legal research, which is a method that uses statutory regulations, which are then analyzed and drawn conclusions from general matters into a specific conclusion. The results of the research obtained are, First: that the legal basis that contains and states implicitly regarding matters relating to ODR is contained in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, namely, the contents of the legal regulations also do not provide much clarity. Details on how the conditions for ODR are carried out, the ODR mechanism, and other explanations. Second, the Inconsistency Norm that occurs in regulations relating to dispute resolution through non-litigation ODR, namely between several articles in the AAPS Law, there is a discrepancy or contradiction between the rules or articles that apply, so that the legal rules become vague and unclear. Where according to several articles of the AAPS Law it is stated that the Arbitration dispute resolution process must be written, while according to other articles of the AAPS Law it can be online. There is a legal ambiguity in the non-litigation dispute resolution mechanism through ODR, so that the parties feel that there are no clear directions or instructions in resolving cases, this makes the process of non-litigation dispute resolution mechanisms through ODR not well directed, due to disharmony or inconsistency the rule of law, so that the rule of law becomes vague, vague and unclear. The solution to these legal issues is that the government should make legal regulations that specifically regulate ODR or revise Law Number 30 of 1999 and add articles related to ODR. To the Government to provide websites and institutions that can specifically handle non-litigation dispute resolution through ODR to handle commercial business dispute resolution.
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Zariski, Archie. "Judicial Dispute Resolution in Canada: Towards Accessible Dispute Resolution." Windsor Yearbook of Access to Justice 35 (May 30, 2018): 433–62. http://dx.doi.org/10.22329/wyaj.v35i0.5789.
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This article argues that access to judges is an essential element of access to justice. Traditional civil litigation procedure aimed at preparation for trial that is complex, time-consuming and costly obstructs such access, especially for litigants without lawyers. To remedy this, the author proposes a summary judicial dispute resolution procedure comprising two stages: early judicial intervention followed by judicial dispute resolution that is determinative if necessary. At both points litigants would be given the opportunity to settle their dispute consensually, thus combining principles of self-determination with final disposition according to law. The proposal draws on and extends contemporary innovations in Canadian courts concerning summary proceedings and binding judicial dispute resolution. The new procedure should improve access to judges and thus access to justice.
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Wibowo, Afrizal Mukti, Sukarmi Sukarmi, and Siti Hamidah. "ANALISIS YURIDIS KEWENANGAN PENYELESAIAN SENGKETA PEMBIAYAAN KONSUMEN DI INDONESIA." Legality : Jurnal Ilmiah Hukum 27, no. 1 (July 22, 2019): 41. http://dx.doi.org/10.22219/jihl.v27i1.8957.
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Consumer financing disputes can be resolved by litigation and non-litigation. However, the choice of dispute resolution raises an competence dispute between dispute resolution institutions. Thus giving rise to legal uncertainty and losses for the parties to the dispute. The purpose of this study is to analyze the competence of consumer financing dispute resolution institutions in Indonesia. This research is a normative juridical approach with a legal, conceptual and case approach. The results of this study are that each dispute resolution institution has the attribute attributive in resolving consumer financing disputes. The competence to settle consumer financing disputes for each settlement institution must pay attention to two aspects, including the types of consumer financing disputes; and the choice of dispute resolution based on the agreement of the parties.
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Hartman, Francis T., and George F. Jergeas. "A model for proactive mediation of construction disputes." Canadian Journal of Civil Engineering 22, no. 1 (February 1, 1995): 15–22. http://dx.doi.org/10.1139/l95-002.
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Alternative dispute resolution methods remain an area of interest and study because of the continued increase in the incidence of disputes, be they claims or litigation. Practice in the industry tends to stimulate litigation if negotiation of claims is unsuccessful. At variance with this is the declared preference of construction industry practitioners for mediation over arbitration and for arbitration over litigation. Mediation has had a high success rate when used in construction dispute resolution. The cost of mediation is significantly lower than litigation or arbitration. The probability of the parties to the dispute being able to work together effectively after the dispute has been resolved is higher, and the dispute can be resolved more quickly than by arbitration or litigation. This paper presents the findings of a study undertaken to identify a better process for construction contracting. An essential part of the new process is the use of proactive mediation. Proactive mediation is the use of a mediator prior to a dispute arising to help identify and address potential problems before they become difficult or unsolvable issues. The proposed methodology has been tested through a process which obtained the input of over 60 senior industry practitioners. Key words: mediation, construction management, contracts, claims, cost reduction, alternate dispute resolution, risk management.
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Nyenti, Mathias Ashu Tako. "REFORMING THE SOUTH AFRICAN SOCIAL SECURITY ADJUDICATION SYSTEM: INNOVATIVE EXPERIENCES FROM SOUTH AFRICAN NON-SOCIAL SECURITY JURISDICTIONS." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (August 29, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1349.
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There is currently no uniform social security dispute resolution system in South Africa due to the piecemeal fashion in which schemes were established or protection against individual risks regulated. The result is that each statute provides for its own dispute resolution institution(s) and processes. There are also various gaps and challenges in the current social security dispute resolution systems, some of these relating to the uncoordinated and fragmented nature of the system; inaccessibility of some social security institutions; inappropriateness of some current appeal institutions; the lack of a systematic approach in establishing appeal institutions; a limited scope of jurisdiction and powers of adjudication institutions; inconsistencies in review and/or appeal provisions in various laws; an unavailability of alternative dispute resolution procedures; and an absence of institutional independence of adjudication institutions or forums. The system is therefore in need of reform. In developing an appropriate system, much can be learned from innovative experiences in comparative South African non-social security jurisdictions on the establishment of effective and efficient dispute resolution frameworks. Dispute resolution systems in the labour relations, business competition regulation and consumer protection jurisdictions have been established to realise the constitutional rights of their users (especially the rights of access to justice, to a fair trial and to just administrative action). They thus provide a benchmark for the development of the South African social security dispute resolution system.
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Kaya, Serkan, Muhammed Danyal Khan, and Rao Imran Habib. "Advanced Technologies for Supporting Dispute Resolution: An Analysis." Review of Applied Management and Social Sciences 2, no. 1 (June 30, 2019): 47–57. http://dx.doi.org/10.47067/ramss.v2i1.14.
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Current Traditional litigation in courts is still considered as the main dispute resolution forum for civil disputes. However, as a result of the digital revolution of society, traditional litigation has become very slow, expensive, formal, and complex. To meet the requirement of the digital age regarding the resolution of disputes, Online Dispute Resolution which is a combination of Alternative Dispute Resolution with Information Communication Technology, has become the new trend for resolving disputes. This article critically examines the use of Artificial Intelligence in ODR and gives some successful examples of global ODR services.
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Kenworthy, Lane, Stewart Macaulay, and Joel Rogers. "“The More Things Change…”: Business Litigation and Governance in the American Automobile Industry." Law & Social Inquiry 21, no. 03 (1996): 631–78. http://dx.doi.org/10.1111/j.1747-4469.1996.tb00092.x.
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Business litigation is a relatively neglected area of corporate governance, particularly given its enormous rise in the United States over the past generation. As a preliminary effort to engage this issue, we examine dispute avoidance and resolution in the automotive sector since the early 1970s-focusing on relationships between auto manufacturers and their suppliers and dealers. We generally presume intercorporate litigation to be a “last resort” in business practice, chosen only on the breakdown of less costly means of dispute avoidance or resolution; we take such breakdown typically to be caused by shifts in the terms of competition among firms (e. g., increased competition, instability, uncertainty); and we expect that, over time, the costs of litigation will motivate efforts to construct new structures of nonlitigious dispute resolution. In the case of the U. S. auto industry, we find disruptive shifts in the terms of competition and increased recourse to litigation. Throughout, however, this litigation effect is mitigated by the dominance of major manufacturers over their suppliers and dealers. Over time, it is further dampened by industry development of mechanisms for arbitration or other nonlitigious dispute resolution.
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Lúcia Raposo, Vera. "I (Won’t) See You in Court Alternative Dispute Resolution for Medical Liability Conflicts: Examples from Europe." European Review of Private Law 28, Issue 6 (December 1, 2020): 1273–94. http://dx.doi.org/10.54648/erpl2020076.
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In many jurisdictions, courts and the related tort liability rules have failed to adequately address conflicts arising from healthcare delivery that has caused harm. The litigation model – the classic model used to deal with medical liability – must be, if not replaced, at least supplemented by another model, and alternative dispute resolution is best suited to this task. Because conflicts are resolved in a less adversarial environment than a courtroom and led by people with knowledge of both medicine and law, alternative dispute resolution promotes a congenial procedure, is faster and cheaper than traditional litigation and can provide more satisfactory outcomes for all parties. This paper reviews some of the failures of litigation as a means of resolving disputes related to medical liability and considers how alternative dispute resolution methods can address these failures, providing some examples from civil law jurisdictions in Europe. alternative dispute resolution, doctor-patient relationship, litigation, medical liability Motsclés: résolution alternative des conflits, relation médecin-patient, contentieux, responsabilité médicale Schlüsselwörter: alternative Streitbeilegung, Arzt-Patient-Beziehung, Gerichtsverfahren, Arzthaftung
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Gu, Weixia. "The Dynamics of International Dispute Resolution Business in the Belt and Road." Proceedings of the ASIL Annual Meeting 113 (2019): 370–74. http://dx.doi.org/10.1017/amp.2019.193.
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China's Belt and Road Initiative (BRI) ambitiously aspires toward expanding regional markets and facilitating economic integration across Asia and Europe. It has been regarded as a game-changer on the landscape of dispute resolution market, triggering a proliferation of “adjudication business.” This report examines the dynamics of international dispute resolution in context of the BRI, discussed from the three following perspectives: (1) BRI investors and disputants; (2) three major means of dispute resolution on offer; and (3) institutions involved.
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Ardiansyah, Ardiansyah. "Transformation of Rules of Origin Dispute Settlement In Free Trade Agreement Scheme Through Mutual Agreement Procedure." Nurani: Jurnal Kajian Syari'ah dan Masyarakat 22, no. 2 (December 22, 2022): 305–14. http://dx.doi.org/10.19109/nurani.v22i2.14461.
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Dispute resolution has been regulated in a free trade agreement (FTA) so the dispute resolution procedure should follow the dispute resolution procedure established by the FTA (das sollen). However, FTA dispute settlement procedures are not widely used to resolve disputes between importers, exporters, and state authorities related to import duty rates on imported goods in the FTA scheme. Litigation procedures in each country are the only option (das sein). Normative juridical law research methods use a statute approach to FTAs and a comparative approach to dispute settlement in the field of international tax law. Research proves the weakness of FTA dispute resolution, namely the private sector and the business world as the main stakeholders in FTA schemes do not get the right to justice in disputes (access to justice) so that disputes are resolved through domestic litigation in each country. As a result, exporters and authorities of the exporting country who are not involved in the litigation process may be disadvantaged in court decisions in the importing country. Transformation of dispute resolution in FTA agreements through the mutual agreement procedure (MAP) as in international tax law (tax treaty) must be made to provide an opportunity for parties from both countries in FTA agreements, both the private sector and the competent authorities to submit objections.
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Patchett-Joyce, Michael. "Specialist Techniques for Construction Dispute Resolution: How Many Ways Can the Cat Be Skinned?" BCDR International Arbitration Review 4, Issue 1 (July 1, 2017): 73–98. http://dx.doi.org/10.54648/bcdr2017006.
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Parties to construction and infrastructure projects have been at the forefront of developing and/or adopting a range of dispute avoidance and resolution measures: partnering, dispute boards, adjudication, expedited (or ‘fast-track’) arbitration, and mediation. Closer analysis reveals that preferences vary according to region, as does the take-up of such initiatives.This article looks at what methods have worked in the Gulf, and what other techniques might usefully be deployed. Some methods, like partnering and expedited arbitration, may have been advocated previously with mixed results.The article contends that this was not because of some inherent unsuitability, but because the time was not right. The article looks at a new partnering initiative, discusses dispute boards and adjudication, and considers the continued roll-out of expedited procedures by arbitral institutions (including the new ICC Rules, effective as from March 2017).The article explains how innovative and creative dispute resolution techniques might usefully be applied in the context of Gulf mega-projects.
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Zaenah, Zaenah. "RESOLUTION FORUM OF SYARIAH EKONOMY DISPUTE." Hang Tuah Law Journal 2, no. 2 (October 31, 2018): 138. http://dx.doi.org/10.30649/htlj.v2i2.65.
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<p>Both No. 93/PUU-X/2012 and PERMA No. 14 Year 2016 regulate a forum of resolution for syari’ah economy disputes, particularly the dispute that arises in a contractual relationship between syari’ah banks and their customers, whether in litigation or non-litigation setting. The development of syari’ah banking is still far due to the pressure of globally financial and economy crisis. Therefore, it is the best moment to pursue the development and progress of syari’ah banking by exhibiting the advantages of Islamic economy system that has competence to compete with the convensional ones, especially in terms of customer security assurance in the process of seeking for business dispute resolution which may possibly happen. Such process, however, remains in syari’ah corridor with <em>kaffah</em> and <em>istiqomah</em> attributes. For people in syari’ah business, all the transactions they do should be under the provisions of syari’ah regulation. An appropriate forum to seek for syari’ah economy dispute resolution is through mediation, given that it is the best one and more reflecting the values of Islam.</p>
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Hudiata, Edi. "REKONSTRUKSI HUKUM PENYELESAIAN SENGKETA PASAR MODAL SYARIAH: PENGUATAN ASPEK REGULASI UNTUK MEMBERIKAN KEPASTIAN HUKUM." Jurnal Hukum dan Peradilan 6, no. 2 (July 31, 2017): 297. http://dx.doi.org/10.25216/jhp.6.2.2017.297-316.
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The regulation of the Islamic capital market following the rules contained in Law 8/1995 on Capital Market, DSN MUI Fatwa No. 40 / IX / 2003, Bapepam-LK Number IX.A.13, No. IX.A.14, and No. II. K.1 From that rules, nothing has clearly set the Islamic capital market dispute resolution, both litigation and non-litigation resulting in a legal vacuum (leemten in het recht). Islamic economic dispute settlement provisions, including the dispute over the Islamic capital market, is only found in Law 3/2006. Through quantitative research methods, the study sought to harmonize the empty rules at the same time filling thus legal vacuum. The research concluded that the settlement litigation of disputes in Islamic capital markets settled in the Religious Court, while in non-litigation resolved through BASYARNAS (National Sharia Arbitration Board) and / or as other civil disputes can also be resolved through Alternative Dispute Resolution in accordance with Law 30/1999.Keywords: legal vacuum, the Islamic capital market.
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Tiara, Zalna, and Kukuh Tejomurti. "Efficiency of Implementation of Alternative Dispute Settlement for Fintech Lending Users." Jurnal Scientia Indonesia 8, no. 1 (April 30, 2022): 37–52. http://dx.doi.org/10.15294/jsi.v8i1.35951.
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This article aims to analyze the dispute resolution mechanism at PT Satustop Finansial Solusi and the effective and efficient application of APS for fintech lending users. This article includes a type of normative legal research that is prescriptive and applied with a legal approach, a case approach, and a conceptual approach. Source materials obtained through primary legal materials and secondary legal materials. The technique used is the syllogism method through a deductive mindset. The dispute resolution mechanism applied by PT Satustop Finansial Solusi is through litigation (judicial institutions). The results show that dispute resolution through litigation is deemed less effective and efficient, so the authors use the provisions in Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution, POJK Number 1/POJK.07/2014 concerning Alternative Dispute Resolution Institutions in the Financial Services Sector, and the Theory of Economic Analysis of Law proposed by Richard A. Posner. In this theory, states that the application of economic principles as rational choices to analyze legal issues.
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Agarwal, Anurag, Sridhar Ramamoorti, and Vaidyanathan Jayaraman. "Decision Support Systems For Strategic Dispute Resolution." International Journal of Management & Information Systems (IJMIS) 15, no. 4 (September 12, 2011): 13. http://dx.doi.org/10.19030/ijmis.v15i4.5793.
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Disputes and lawsuits are quite common in business and are often a source of significant liabilities. We conjecture that measurement challenges and lack of adequate analysis tools have greatly inhibited the ability of the General Counsels offices in selecting the best mode for the resolution (i.e. litigation vs. out-of-court settlement) of business conflicts and disputes. Easily quantified direct costs (e.g., out-of-pocket expenses related to pursuing and defending against litigation) tend to be considered, whereas the more difficult-to-quantify indirect risks and costs (e.g., damaged relationships with customers and potential alliance partners, including reputational harm) which may be quite significant, tend to be ignored. We also hypothesize that the benefits of Alternative Dispute Resolution (ADR) strategies may have been muted because of the failure to assess the real magnitude of not-easily-quantified indirect risks and costs. We propose two Decision Support Systems (DSSs), one for a macro-level analysis and one for a micro-level (i.e. case by case analysis), to alleviate the measurement and analysis problem. In the proposed DSSs, the underlying decision engine makes use of operations research tools such as decision trees, logic modeling, Monte-Carlo Markov-Chain (MCMC) and fuzzy logic simulations. By providing the means to gather decision-relevant information, especially on difficult-to-measure soft costs, we have attempted to reduce the decision making risk for the General Counsels offices. In the process, we have also furnished some ways to reach more informed assessments to support litigation risk management strategies and decisions.
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Suyoga, I. Made Wisnu, and Yohanes Usfunan. "Penyelesaian Sengketa Kontrak Kerja Konstruksi Melalui Ajudikasi Dan Perbandingan Dengan Arbitrase." Acta Comitas 5, no. 2 (August 7, 2020): 240. http://dx.doi.org/10.24843/ac.2020.v05.i02.p03.
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The purpose of this study is to analyze the construction dispute resolution in Indonesia; and comparison of construction work contract dispute resolution through adjudication and arbitration. This type of research is a normative legal research with a statute approach, concept approach and comparative approach. The analysis of legal material in this study was done descriptively, interpretatively, evaluatively and argumentatively. The results of the research show that the settlement of construction disputes in Indonesia is regulated in Article 88 of Law Number 2 of 2017 concerning Construction Services including: Mediation, Conciliation and Arbitration. The comparison of construction work contract dispute resolution through adjudication and arbitration states that adjudication is an arbitration mechanism that is simplified and then adjusted in such a way as to meet the needs of fair dispute resolution.
Tujuan study ini untuk menganalisis penyelesaian sengketa konstruksi di Indonesia; dan perbandingan penyelesaian sengketa kontrak kerja konstruksi melalui ajudikasi dan arbitrase. Jenis penelitian yang digunakan merupakan penelitian hukum normatif dengan pendekatan perundang-undangan, pendekatan konsep dan pendekatan perbandingan. Analisis bahan hukum dalam penelitian ini dilakukan secara deskriptif, interpretatif, evaluatif dan argumentatif analisis. Hasil study menunjukkan penyelesaian sengketa konstruksi di Indonesia diatur dalam Pasal 88 Undang-Undang Nomor 2 Tahun 2017 tentang Jasa Konstruksi meliputi: Mediasi, Konsiliasi dan Arbitrase. Perbandingan antara adjudikasi dan arbitrase dalam fungsinya sebagai penyelesaian sengketa kontrak kerja konstruksi dapat dideskripsikan secara sederhana, bahwa adjudikasi merupakan mekanisme penyelesaian sengketa yang memiliki kemiripan dalam hal karakteristik dengan arbitrase. Namun mekanisme adjudikasi justru bersifat lebih sederhana dibandingkan dengan arbitrase.
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Adeuti, Bosede Remilekun. "Resolving Office Establishment Dispute in Nigeria through Alternative Dispute Resolution Mechanism: An Evolving Regime." Sriwijaya Law Review 5, no. 1 (January 31, 2021): 115. http://dx.doi.org/10.28946/slrev.vol5.iss1.826.pp115-129.
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This paper examines contemporary issues in Office Establishment Dispute Resolution Mechanism in Nigeria. It explores strategic ways of resolving such office establishment dispute which has remained an intractable problem in Nigeria. The objective is to examine litigation challenges in settlement of this office dispute in Nigeria and other developing countries. This paper argues that adopting Alternative Dispute Resolution Mechanism in Office Establishment Dispute is not only a programmatic goal to be attained in the long term but rather an immediate obligation that is preferable to litigation in the court of law. The doctrinal research methodology will be used to examine the challenges in resolving office establishment dispute through alternative dispute resolution Mechanisms. This paper adopts an analytical and qualitative approach and builds its argument on existing literature works, which are achieved by synthesising ideas. Recommendations and suggestions are made based on research findings. This paper concludes that the era of jettisoning or sacrificing Alternative Dispute Resolution on the altar of inapplicability in resolving office establishment dispute is gone and the need to move with time with the practise which has been in existence in developed countries for decades.
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Barnard, Catherine, and Emilija Leinarte. "From Constitutional Adjudication to Trade Arbitration Enforcing Mobility Rights Post-Brexit." European Foreign Affairs Review 25, Issue 4 (December 1, 2020): 589–612. http://dx.doi.org/10.54648/eerr2020040.
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This article addresses the termination of the CJEU’s jurisdiction post-Brexit and its replacement with a much more restricted dispute resolution provision, more reminiscent of that found in free trade agreements, focusing in particular on the enforcement of mobility rights. It begins by addressing the root causes for Britain’s antagonism towards the Court. It argues that the Court’s expansive interpretation of the Treaties, masked by a legalist approach to European integration, has allowed the Court largely to avoid scrutiny by most Member States. Nevertheless, the Court’s judicial activism was ultimately rejected by the UK leading to the Court’s curia non grata status post-Brexit. It then analyses the key features of the post-Brexit dispute settlement system proposed by the UK and the EU .We argue that while the Court has been criticized for its judicial activism, EU law did provide significant avenues for an individual’s access to courts. This fundamental feature is missing from the dispute resolution mechanism under the proposed UK-EU free trade agreement (FTA), leaving an important gap in the system of justice in the future UK-EU relationship.We argue that under the new dispute settlement regime mobility rights will be adjudicated as trade disputes. This has serious implications for the protection of rights of individuals wishing to exercise any future mobility rights. Court of Justice, free trade agreement, integration, free movement of person, mobility, dispute resolution
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Izzati, Nur Arissa, Chusnul Qotimah Nita Permata, and Miftah Santalia. "Assessing the Effectiveness of Settling Indonesian Sea Border Disputes through Litigation and Non-Litigation Paths." Lex Scientia Law Review 4, no. 1 (May 8, 2020): 1–18. http://dx.doi.org/10.15294/lesrev.v4i1.38261.
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Conflicts or disputes over maritime boundaries often occur, disputes that cause two or more countries are one of the authorities of their respective countries to conduct negotiations so as not to cause prolonged conflict or dispute. Border disputes between sea, island, and state are included in the affairs of the international court through the role of international law, such as the dispute between Indonesia and Vietnam in the Natuna Sea region which mutually claims sea borders both the continental shelf boundaries and the Exclusive Economic Zone (EEZ) boundaries, disputes between Indonesia and Malaysia in the Malacca Strait, the South China Sea Dispute, and so on. The existence of unilateral claims from each country there are still problems regarding sea borders that cause relations between countries experiencing conflict. Problems that cause disputes between countries are caused because the negotiations between the two parties have not been completed, violations occur by the disputing countries, there are still unclear sea boundaries, and others. The United Nations Convention on The Law of the Sea (UNCLOS) 1982 is an international maritime law that applies in the resolution of disputes at sea, but only countries that have ratified UNCLOS can apply this international sea law. In resolving this dispute a country can do with two channels namely litigation and non-litigation, where litigation is used for the last point in this dispute through ITOLS. The purpose of writing this article is to find out how the effectiveness of sea base dispute resolution in Indonesia through litigation and non-litigation.
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Isa, Mohamad Jusuf Husain, Nur Zakiah, and Fitri Fuji Astuti Ruslan. "Upaya Non Litigasi Dalam Penyelesaian Sengketa Penyerobotan Tanah." Jurnal Multidisiplin Madani 2, no. 3 (March 30, 2022): 1461–76. http://dx.doi.org/10.54259/mudima.v2i3.591.
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Non litigation efforts in dispute revolution of land invasions (study implementation of article 1 paragraph (10) law no. 30 in 1999 in the manuba village, malusetasi district, district of barru). In this paper, the authors raised the issue of Non-Litigation Efforts In Dispute Resolution of land invasions. The choice of the theme motivated by resolving disputes in court that takes a long time and certainly need much money, as well as the final result determine the losing and the winning side, because the principle of Indonesian society are conference and kinship. According to Article 1, paragraph (10) of Law no. 30 of 1999 on arbitration and alternative dispute resolution, then the public can choose dispute revolution through non-litigation dispute, namely mediation, negotiation, conciliation, consultation, and expert assessment. This thesis uses sociological and juridical approach this type of research is empirical legal research. The primary and secondary law materials that authors obtained will be analyzed using qualitative descriptive analysis techniques. As a population are people who have experienced got a case of land invasions, the head of village, and advocate. Primary data collection technique is interview, while secondary data use library research. From the results of research by the method above, the authors obtained answers to existing problems that non-litigation efforts in the resolution of disputes in the village Manuba of land invasions in accordance with the wishes of the parties and ended in peace. Mediation in the dispute resolution process of annexation of land succeed in accordance with the wishes of the parties.
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Velicogna, Marco. "Cross-border dispute resolution in Europe: looking for a new “normal”." Oñati Socio-Legal Series 12, no. 3 (June 1, 2022): 556–81. http://dx.doi.org/10.35295/osls.iisl/0000-0000-0000-1303.
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We live in an increasingly digitally mediated, platform-based environment characterised by remote working, schooling, shopping, and socialising, where national borders blur and geographical location importance decreases. One of the main effects of this transformation is the growing relevance of cross-border (actual and potential) disputes and, therefore, the need for adequate means to address and resolve them. Geographically bounded forms of dispute resolution based on national justice systems, courts, and independent judges have shown their limits to face the new challenge. Building on Canguilhem’s work on the norm, normal and pathological concepts, the paper explores the European Union’s attempt to provide adequate cross-border dispute resolution mechanisms through traditional justice means, showing achieved results and limits. The paper then explores the increasing role of dispute resolution mechanisms integrated into platforms, such as Amazon, eBay and Booking, that bring together service-and-goods providers and buyers/users. These platforms 1) act as third parties in the adjudication of controversies and 2) deploy crowd-based adjudication and enforcement instruments.
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Triana, Nita. "JUSTICE IN MANY ROOMS IN SHARIA BANKING DISPUTE RESOLUTION TO ACHIEVE JUSTICE." Diponegoro Law Review 3, no. 1 (April 30, 2018): 43. http://dx.doi.org/10.14710/dilrev.3.1.2018.43-63.
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This paper examines the dispute resolution of Sharia Banking. The method is a non-doctrinal legal research using qualitative research and Socio Legal approach. Sharia banking cannot be separated from the problems between the banking and the Customer. This problem is calledproblematic financing. The resolution of problematic financing of sharia banks in litigation is now the absolute authority of the Religious Courts. The downside of litigation settlement usually takes a long time, the need for proof, the cost is quite expensive and the result is winningor lost. Therefore, the settlement of sharia banking is very rarely resolved through litigation. Alternative Dispute Resolution is a choice of dispute settlement chosen by Sharia Banking. The first stage isto carry out negotiation between all parties, namely Banking (lender) and The Customer (Debtor) in the form of warning and guidance. If it does not succeed, there will bedebt restructuration. The second step is mediation, in the form of consultation with third party as a mediator. The mediation determines the rescue process of debt by Banks when a debtor is still unable to return his debt, executed by the bank. According to Marc Galanter these various dispute resolutionsis called justice in many rooms. In Islamic Law it is known as Sulh (peace). However, to a large extent this non-litigation settlement is more satisfactory to both parties in resolving the dispute because it senses fairness and a win-win solution.