Academic literature on the topic 'Parties to a public law dispute'
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Journal articles on the topic "Parties to a public law dispute"
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Leshchina, E. L. "The Legal Nature of Public Service Disputes concerning the Legality of Imposition of Disciplinary Sanctions." Lex Russica, no. 9 (October 2, 2021): 21–31. http://dx.doi.org/10.17803/1729-5920.2021.178.9.021-031.
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The paper examines the concept of a public service dispute as a type of a legal conflict, as a protective legal relationship and a juridical procedural activity. The author analyzes the modern terminology of a public service dispute enshrined in the legislation regulating public service, identifies the shortcomings of legal definitions. The author establishes and describes the mechanisms for the consideration of public service disputes provided for by the legislation.The main approaches to the definition of a public service dispute are analyzed. The author has highlighted its features as a complex protective legal relationship. The author shows the erroneous identification by some researchers of labor and public service relations and approaches to their determination of the legal nature of public service disputes, including the legality of the application of disciplinary sanctions. It has been substantiated that the legal nature of public service disputes in the civil service system is primarily determined by the content of the relations that underlie their occurrence—public service legal relations—and not by the forms of their consideration, which allows the possibility of applying labor and civil procedural legislation to disputed legal relations.The author defines a public service dispute and an official conflict, describes the signs of a public service dispute on the legality of the imposition of a disciplinary sanction, qualifies the subject matter of the dispute under consideration—substantive legal requirements (disagreements) of the parties that act as an element of the connection between the substantive legal relationship between the parties to the dispute and the procedure applied for the dispute consideration. It has been substantiated that the public service dispute consideration concerning the legality of imposing a disciplinary sanction, termination of a public service contract constitutes a type of law enforcement procedural activity that has its own basis, subject matter, goals, elements, procedural forms and stages, types of decisions, which makes it possible to single out such disputes as one of the administrative proceedings included in the administrative process structure.
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Ustyuzhaninova, Ekaterina A. "Mediation in Public Law of Great Britain." Administrative law and procedure 6 (June 17, 2021): 64–67. http://dx.doi.org/10.18572/2071-1166-2021-6-64-67.
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Mediation as one of alternative dispute resolution means has been successfully applied in the civil relationship sphere in Great Britain for a long time, for example, in cases on protection of consumer rights or cases involving commercial activities. Mediation is not an obligatory condition for addressing a court, refusal from mediation may lead to negative consequences for the parties in the legal expense distribution. Courts are constantly emphasizing their interest in early settlement of disputes including public law ones that are reviewed in the judicial review procedure: the jurisdiction specifically designed for the verification of legality of actions and judgments of the public government.
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Siregar, Nurdin, and Radisman Saragih. "Penyelesaian Sengketa Para Pihak di Bidang Bisnis melalui Arbitrase." to-ra 2, no. 1 (May 1, 2016): 305. http://dx.doi.org/10.33541/tora.v2i1.1133.
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Arbitration is a way of solving civil disputes outside the public courts based the arbitration agreement made in writing by the parties to the dispute. The arbitration agreement is an agreement in the form of the arbitration clause contained in a written agreement made by the parties before a dispute arises or a separate arbitration agreement made by the parties after a dispute arises. In everyday life with various activities of members of today’s society, immense possibility of friction-friction in running business and trade that ended with disputes between members of the public and businesses. In efforts to completion, it would seem that this form of dispute diversity define the core issues then this diversity will be easy settlement with the provisions and rules of law that are sure to be able to look for the solution either arbitration or by mediation, consulting, negotiations, konsialiasi. The arbitration decision will be implemented after the verdict copy officially registered, but the arbitration ruling in accordance with the provisions of the law Arbitration can still be filed annulment if the decision is thought to contain elements, letters or documents are filed in the examination after the verdict recognized dinyataakan counterfeit or fake, after adjudication documents found prescriptive, which is hidden by the other party or the decision taken on the results of a ruse conducted by one of the parties in the dispute. That for legal certainty associated with the judiciary also good for the winning side and the decision is legally binding.
Kata Kunci: Penyelesaian sengketa bisnis melalui arbitrase
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Slyvka, V. V., and M. M. Slyvka. "Grounds for reconciliation of the parties in the administrative proceedings of Ukraine." Uzhhorod National University Herald. Series: Law, no. 67 (January 16, 2022): 220–23. http://dx.doi.org/10.24144/2307-3322.2021.67.42.
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The article is devoted to the study of the grounds for reconciliation of the parties in the administrative proceedings of Ukraine.
It is noted that under the grounds of reconciliation in the administrative proceedings of Ukraine it is advisable to understand a set of mandatory circumstances of the actual reality, the combined presence of which allows to resolve a public law dispute through reconciliation.
It is indicated that in the administrative proceedings of Ukraine there are three groups of grounds for reconciliation of the parties:
– normative – is a system of norms of the current legislation, which regulates various aspects of reconciliation of the parties to a public law dispute;
– actual – the implementation by the parties of a public-law dispute of actions to exercise the right to conciliation on their own initiative or on the basis of a court initiative.
– procedural – these are documents drawn up (submitted, approved, validated) by the parties to a public dispute or by a judge, enabling reconciliation, as a procedure and/or as a desired result of this procedure.
It is emphasized that in addition to the Code of Administrative Procedure of Ukraine as a normative basis for reconciliation should be considered:
1) norms of the Constitution of Ukraine;
2) acts of international law containing standards of human rights, good governance and justice.
3) special legislative acts and by-laws that contain provisions that determine the powers of public service bodies that appear as a party to a public law dispute.
It is emphasized that the procedural grounds for reconciliation in the administrative proceedings of Ukraine include:
1) a petition on the basis of which the court suspends the proceedings in the case for the period of reconciliation. The relevant petition testifies the fact that the parties of the public law dispute reached an agreement on an attempt to reconcile.
2) a statement of reconciliation;
3) a decision approving the terms of reconciliation, which takes place when there are all the conditions (absence of negative conditions), as well as factual and regulatory grounds, after which the proceedings are closed and the parties consider that they have reconciled.
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Dewi, Ni Made Trisna. "Penyelesaian Sengketa Non Litigasi Dalam Penyelesaian Sengketa Perdata." Jurnal Analisis Hukum 5, no. 1 (April 25, 2022): 81–89. http://dx.doi.org/10.38043/jah.v5i1.3223.
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The judiciary is basically formed to try and solve problems, but in reality sometimes it is not able to solve the problems faced by the parties, sometimes even causing new problems, namely prolonged hostility between the disputing parties. The problems that will be discussed in this research are What are the legal remedies for non-litigation settlement in dispute resolution according to civil law?, and what are the obstacles to resolving non-litigation disputes according to civil law? The research method used is an empirical research method that is guided by data collection techniques with direct interviews with competent people using peace theory, effectiveness theory in the rule of law concept to study and get answers to existing problems. The results of this study are legal efforts to resolve disputes over buying and selling diamonds in civil law cases, namely by non-litigation, this is generally done in civil cases only because it is more private in nature by having several forms to resolve disputes, namely: Negotiation, Mediation and Arbitration. Meanwhile, the obstacles to non-litigation settlement in the settlement of civil law cases of buying and selling are juridical barriers regarding mediation and the validity of the results of the peace where the parties sometimes or the public doubts the final outcome of dispute resolution through mediation and non-juridical barriers, namely obstacles that occur because the parties involved directly related to the diamond sale and purchase dispute, prioritizing emotions in problem solving. The emotional factor with its arrogance assumes that all parties are in the right position, so they don't want to give up.
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Drličková, Klára. "Arbitrability and Public Interest in International Commercial Arbitration." International and Comparative Law Review 17, no. 2 (December 20, 2017): 55–71. http://dx.doi.org/10.2478/iclr-2018-0015.
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Summary The aim of this article is to analyse the mutual relationship between arbitrability and public interest. The definition of arbitrability has remained in the domain of national law; there is no internationally unified definition, although a common trend towards the extension of its scope may be observed. There is no doubt about arbitrability in disputes concerning only the individual interests of the parties. However, if the dispute shows elements of public interest, it does not automatically imply that it is not arbitrable. A sign of equation thus cannot be put between public interest and inarbitrability. Disputes arising from economic activities involving public interest can be resolved before the arbitral tribunals. This for instance includes private-law enforcement of competition rules (including EU ones), disputes affected by illegal (criminal) actions, disputes concerning intellectual property rights (in certain countries also with erga omnes effects) or disputes related to insolvency proceedings.
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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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CÎMPEAN, Daniela, Roxana VORNICU, and Dacian C. DRAGOȘ. "Public-Private Arbitration in Romanian Law." Transylvanian Review of Administrative Sciences, no. 64 E (October 15, 2021): 24–46. http://dx.doi.org/10.24193/tras.64e.2.
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The article endeavors to introduce the constitutional and statutory framework for arbitration in Romania, whilst discussing the dilemmatic legislative provisions allowing for public entities to become parties in an arbitration dispute. It includes a discussion of the concept of administrative contracts in Romania and a chronological analysis of the evolution of public-private arbitration under administrative contracts. Some of the landmark Romanian public-private arbitrations under international investment treaties have held the public agenda in recent years and they shape the public debate on arbitration as fit for purpose when it comes to public contracts.
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Rudenko, L. D., and D. S. Semko. "TO THE QUESTION ON PRE-CASE SETTLEMENT OF ECONOMIC DISPUTES." Legal horizons, no. 19 (2019): 54–58. http://dx.doi.org/10.21272/legalhorizons.2019.i19.p54.
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The article identifies the nature of pre-trial settlement of an economic dispute, analyzes the features of the pretrial settlement of an economic dispute. Taking into account the provisions of the current Commercial Code and the Commercial Procedure Code of Ukraine, the article examines the procedure for pre-judicial settlement of the economic dispute, including the analysis of the rules of economic law and commercial procedural law, which regulate the general procedure for pre-trial settlement of economic disputes. It is determined that pre-trial settlement of economic disputes is an independent legal institution, the rules of which are contained in both procedural and material sources of law of different legal force. Specified that pre-trial settlement of economic disputes is a set of actions defined by law and/or contract, On the basis of the conducted analysis, it is concluded that it is advisable to include in the Commercial Code a separate Chapter “Pre-trial settlement of economic disputes”, in which to determine the forms of pre-trial settlement (negotiations, claim procedure, mediation), the procedure for their application. The necessity to align the requirements of procedural and substantive norms in cases of obligatory application of pre-trial settlement of economic disputes was noted. The imperative prescription regarding the obligation to apply pre-trial settlement of economic disputes is contained in Art. 29, 30 of the International Rail Freight Agreement. In a number of other legal acts, the application of pre-trial dispute settlement is dispositive. Based on case law and business research, it is proposed to provide for the obligation of pre-trial settlement for transportation contracts, telecommunication services contracts, public procurement contracts. Keywords: pre-trial settlement, legal institute, economic dispute, parties to the economic dispute, claim, consequences of the pre-judicial settlement of the economic dispute.
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Melianus T, Giovanni, I. Nyoman Budiana, and Sheanny Scolastika. "JURIDICAL ANALYSIS ON THE LEGAL CHOICE CLAUSE AND DISPUTE SETTLEMENT IN THE FRANCHISE AGREEMENT." Journal Equity of Law and Governance 1, no. 1 (April 23, 2021): 37–47. http://dx.doi.org/10.55637/elg.1.1.3243.37-47.
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Collaboration in the trade sector both at the national and international levels in the form of a franchise looks simple, but behind it, there are various problems that require attention from both the public or parties as well as from the Indonesian government. This is because the franchise agreement conducted by the parties often involves foreign parties who have a different legal system from Indonesia. This situation has the potential to create a conflict of law. Therefore, this study aims to provide legal solutions to disputes that may occur between the franchisor and the franchisee so that neither parties is burdened because of the lack of laws covering it. Normative legal research is used to analysis the problem of this research. The data source of this research uses primary legal materials and secondary legal materials related to clauses in the franchise agreement. Likewise, for the settlement of disputes on an agreement that has not yet determined the choice of law, several theories in international civil law can be used, such as the lex loci contractus theory, the lex loci solutionis, the proper law of contract, and the theory of the most characteristic connection to find laws that should apply (lex cause) For the settlement of legal disputes (conflict of law), especially in franchise agreements, the settlement of disputes does not have to go through litigation or court but can be resolved through Alternative Dispute Resolution (ADR) including arbitration institutions, which have the advantage of solving them, namely efficiency ( cost and time).
Dissertations / Theses on the topic "Parties to a public law dispute"
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Salehi, Meysam. "Investment Treaty Arbitration as a Public and Unilateral Dispute Settlement : A redefinition of the autonomy of disputing parties and arbitral tribunals in the process of investment treaty arbitration." Thesis, Uppsala universitet, Juridiska institutionen, 2020. http://urn.kb.se/resolve?urn=urn:nbn:se:uu:diva-412159.
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Over the last decade, investment treaty arbitration has been confronted with relatively extensive and fundamental criticisms. The problem with the system in fact boils down to a misconception by tribunals of the nature of investment treaty arbitration. Many scholars and tribunals have perceived and treated investment treaty arbitration as a reciprocal arrangement with a private function. This is so mainly because of the way they formulate the establishment of investment treaty arbitration. To put it simply, it has been though that investment treaty arbitration, similar to international commercial arbitration, is founded upon a reciprocal contract made through a merger of intentions of the host State and the foreign investor. This perception would necessarily lead to the application of the principle of party autonomy as the main governing principle over the process of arbitration; a principle that is well tailored to adjudications with private function. Contrary to this, a careful examination of the nature of investment treaty arbitration reveals not only the public dimensions of the system, but also the unilaterality of the framework on which the system stands. These two characteristics require a shift in paradigm; otherwise, the system will expose to more and more legitimacy crises. The present research, therefore, tends to make a clear distinction between the two systems of international commercial and investment treaty arbitration, and explore the implications of this paradigm-shifting for the process of investment treaty arbitration, in particular, the way tribunals interpret the instrument of consent and the autonomy of tribunals in the course of the arbitration.
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Сливка, В. В. "Примирення сторін в адміністративному судочинстві в умовах євроінтеграції України." Thesis, ДВНЗ "Ужгородський національний університет", 2021. https://openarchive.nure.ua/handle/document/18627.
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Дисертація присвячена формулюванню теоретико-методологічних засад примирення сторін в адміністративному судочинстві та наданню пропозицій щодо вдосконалення адміністративного законодавства України в цій сфері в умовах євроінтеграції. В роботі визначено поняття та особливі ознаки примирення сторін в адміністративному судочинстві. Встановлено мету, завдання, функції, принципи досліджуваного примирення. Визначено суб’єктний склад процедури примирення, встановлено умови та підстави, порядок примирення сторін в адміністративному судочинстві. Враховано досвід окремих держав-членів ЄС (Іспанія, Нідерланди, Німеччина, Франція), а також положення ряду актів ЄС. Узагальнено основні актуальні проблеми в досліджуваній сферіта сформульовано комплекс конкретних пропозицій щодо вдосконалення адміністративно-правового регулювання примирення сторін в адміністративному судочинстві в умовах євроінтеграції України, враховуючи відсутність в ЄС універсальної моделі примирення сторін публічно-правового спору та фрагментарність регулювання примирення сторін в державах-членах ЄС. The dissertation is devoted to the formulation of theoretical and methodological principles of reconciliation of the parties in administrative proceedings and to provide proposals for improving the administrative legislation of Ukraine in this area in the context of European integration. The paper defines the concept and special features of conciliation of the parties in administrative proceedings. It is established that the purpose of conciliation of the parties, as a process, is manifested in the gradual achievement by the parties of a public law dispute of a real consensus on dispute resolution, and, as a result, in the effective resolution of substantive dispute by conciliation. In this sense, conciliation of the parties performs a set of tasks (creating conditions for dialogue between the parties to the dispute; formation in the negotiations of the parties a specific model of mutual concessions that they realize, want to perform such , stimulating, analytical, information and communication, control and supervision, educational and preventive). The system of principles of conciliation of the parties in administrative proceedings are: 1) common law principles; 2) special principles of resolving the case by conciliation (for example, transparency and informativeness of resolving the case by conciliation; dispositiveness, constructive adversarial nature of the parties to the dispute; mandatory entry into force of conciliation conditions after their approval by the court; reasonable terms of resolving the case, etc.); 3) special principles concerning: a) quality, features of dispute resolution through conciliation; principles of accessibility and efficiency; b) voluntary participation in dispute resolution; good faith of all participants in the dispute resolution procedure); characteristics of the qualities of the conciliator (in particular, the principles of competence; independence, impartiality of the conciliator; compliance with the requirements of confidentiality). It is established that the subjective composition of conciliation of the parties is manifested in three models: "simple" (parties to the dispute; the judge who supervises the conciliation, approves the terms of conciliation); "Relatively complicated" (parties to the dispute; a judge who persuades the parties to conciliation and / or fully performs the role of conciliator); 3) "complicated" (parties to the dispute; judge; conciliator). In modern Ukraine there is a "simple" model of the subjective composition of the reconciliation of the parties, which: is characterized by certain features of the "relatively complicated" model; but at the same time it has the potential to transform into a "complicated" model of the subjective composition of the parties. A set of grounds and conditions for resolving a dispute by conciliation in administrative proceedings has been determined. The system of such conditions consists of: 1) positive conditions (the existence of a public law dispute and filing a lawsuit to resolve it; the integrity of the voluntary intentions of the parties to the attempt to reconcile, the implementation of a specific model of conciliation during negotiations and at the time of conciliation; ; reality and rationality of the agreed conditions of conciliation; the presence of the subjects who apply for reconciliation, the appropriate degree of legal personality); 2) negative conditions (inconsistency with the tasks of administrative proceedings in the form of violation of the interests of third parties; the law). The system of grounds covers: normative (norms of the legislation on conciliation of the parties and on the status of the subjects who are parties to the dispute), factual (implementation by the parties of the public-legal dispute of actions on acquisition and realization of the right to conciliation) and procedural-procedural conciliation, court rulings that determine the emergence and exercise of the right to reconciliation). The stages of implementation of the conciliation procedure of the parties in administrative proceedings are: 1) informal and formal initiation and commencement of the conciliation procedure; 2) negotiations in which the parties make a joint statement of conciliation of the parties; 3) submission for approval and approval of the application for conciliation of the parties, in which the court: explains to the parties the consequences of the court decision in connection with the conciliation of the parties; checks the existence of all conditions and grounds for resolving the dispute by, approves the terms of conciliation closes the proceedings or refuses to approve the terms of conciliation and continues the trial. The main current problems in the research area are summarized and a set of specific proposals for improving the administrative and legal regulation of conciliation of the parties in administrative proceeding.
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Norman, Allen G. "Alternative dispute resolution and public policy conflict: Preemptive dispute resolution negotiated rulemaking." CSUSB ScholarWorks, 1994. https://scholarworks.lib.csusb.edu/etd-project/928.
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Brennan, James R. "Contracting with reading costs and renegotiation costs." Connect to a 24 p. preview or request complete full text in PDF format. Access restricted to UC campuses, 2007. http://wwwlib.umi.com/cr/ucsd/fullcit?p3255549.
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Thesis (Ph. D.)--University of California, San Diego, 2007.Title from first page of PDF file (viewed May 10, 2007). Available via ProQuest Digital Dissertations. Vita. Includes bibliographical references (p. 114-118).
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Bahri, Amrita. "Public private partnership in WTO dispute settlement : enabling developing countries." Thesis, University of Birmingham, 2015. http://etheses.bham.ac.uk//id/eprint/6242/.
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The doctoral research investigates the nature and elements of domestic mechanisms, including public private partnership (PPP) procedures, devised for the management of WTO disputes in selected developed and developing countries. With China, Brazil and India as its case-studies, the research explores various strategies to devise an effective PPP mechanism for handling international trade disputes in developing countries. The research objective is to explore the benefits of engaging the private sector in the intergovernmental process of WTO dispute settlement, and to identify the reforms that will be needed for devising a workable domestic framework for handling foreign trade disputes through PPP arrangements. The research highlights important issues and concerns that need consideration before any legal, institutional, regulatory and procedural reforms are carried out. Moreover, the research seeks to enable developing countries to critically evaluate a diverse range of PPP strategies employed so far, and to determine their individual approaches towards PPP and dispute management. The thesis constitutes a practical guidebook for policymakers in those developing countries which have the motivation to strengthen their WTO dispute settlement capacities. The topical area of research and pragmatic approach towards research questions, together with an empirical research methodology makes this study an original contribution to existing literature and knowledge.
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Wong, Chung Yin Victor. "Duties and liabilities of the key parties under the Hong Kong general construction contract a study analyzing unforeseen underground obstruction /." access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21847599a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006."Master of Arts in arbitration and dispute resolution (MAArbDR), LW6409 dissertation" Title from PDF t.p. (viewed on May 23, 2007) Includes bibliographical references.
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Kwong, John Ka Sing. "Conflict avoidance and dispute resolution methods for public works contracts and the adoption of dispute resolution advisor system and adjudication in Hong Kong." access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20833659a.pdf.
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Smith, Boy Siphiwo. "A critique of dispute resolution in the public service." Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/754.
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Effective, efficient and expeditious resolution of labour disputes plays a crucial role in terms of the realization of one of the primary objectives of the Labour Relations Act (hereinafter referred to as “the Act”) which is the achievement of labour peace. Although there is no proper definition of a dispute offered by the Act, there are several elements raised by authors within the labour relations and labour law fields which constitute a dispute. Two types of disputes are discussed, namely disputes of right (emanating from entitlement) and disputes of interest (based on demands not provided for, and these are also known as disputes based on matters of mutual interests). Labour relations in South Africa has a history that is tarnished by segregation and dualism, where there was a system of labour relations and labour statutes for all races (except for Africans). The first statute dealing somewhat comprehensive with labour disputes, the Industrial Conciliation Act, did not apply to Africans. This situation (exclusion of Africans) prevailed until the early 1980’s. Therefore, although the apartheid system was legislated in 1948, its segregation practices based on race existed long before 1948 and also extended to the workplaces. The turning point in the labour relations arena in South Africa was the appointment of the Wiehahn Commission. As a result of the recommendations by this Commission, African Workers were for the first time included in labour legislation. So, of great interest is the fact that African Workers attained labour rights before the demise of the apartheid system. The birth of the Act with its dispute resolution fora like the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”), Bargaining Councils, Labour Court and the Labour Appeal Court, revolutionized dispute resolution in the country. However, there are some challenges that have emerged even within the new system. Prior to 1993, labour relations in the public service, simply just did not exist. This was mainly due to the fact that the public service was excluded from mainstream legal framework governing labour relations. The State was very much in control of what was happening with regards to employment relations in the public service. There were some structures developed for engagement with the State like the Public Service Commission (PSC) which was politicized to push the agenda of apartheid, Public Servants Association (PSA) for White Public Servants, Public Service Union (PSU) for Indian Public Servants and Public Service League for Coloured Public Servants. There was no structure established for African Public Servants though. Nevertheless, these established structures were useless. One of the recommendations of the Wiehahn Commission was the inclusion of public servants within the mainstream labour relations framework and this was never pursued by the then government. It took the wave of strikes in the early 1990’s for the Act to be extended to the public service. Even with the inclusion of public service within the scope of the Act, there are still challenges pertinent to the public service. Central to these challenges is the problem of fragmentation in terms of approach regarding dispute resolution and the fact that there are too many pieces of legislation dealing with dispute resolution. This situation has also resulted in a jurisdictional debacle within the public service. Also, there is a huge challenge in terms of dealing with abscondments / desertion within the public service. In terms of the way forward, there is an initiative to streamline the public service. In this regard, there is a Draft Single Public Service Bill and also the Public Service Amendment Bill.
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Dolopi, Nkosana. "An evaluation of the approaches of the arbitrators to the promotion of disputes resolution in public education." Thesis, Nelson Mandela Metropolitan University, 2016. http://hdl.handle.net/10948/15378.
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Public Education like other sectors such as Health, International Relations, Finance, Local Government and Environmental Affairs that fall under Public Administration as well as business in private, factory and industrial institutions are embraced or characterized by the concept of employer and employee relationships. These relationships are not always wholesome and harmonious but are overshadowed by disputes and strikes which bring about paralysis and polarization of the operation of business and educational stability in public service and administration sectors as well as at learning institutions. These disputes arise from inter alia, disagreements regarding wage negotiations, unfair dismissals, unfair labour practice involving appointments, promotions and transfers, mutual interest, severance pay, automatically dismissals, operational requirements dismissals (both single and multiple), disclosure of information disputes, organizational rights disputes, agency shop disputes, picketing disputes, unfair discrimination disputes in terms of the Employment Equity of Act as amended, and disputes involving the enforcement of collective agreements or the non-compliance with the Basic Conditions of Employment Act and others. Whilst there are similar trends and patterns of disputes in all these sectors, they are, however, not only differ in intensity and rapid occurrence but also in how they are negotiated and settled because the work environments are different at the level of operation, administration and management. What is common in all disputes is that they are all conciliated and arbitrated by arbitrators at the Commission for Conciliation, and Arbitration (hereafter referred to as the CCMA), Education Labour Relations Council (ELRC), Private Resolution Agencies and the Labour Court. The Apartheid era administration had labour laws which dealt with these disputes, but were not progressive and effective in handling them. This placed a heavy burden on the new ANC led government to change the laws of the previous regime. Most of these changes happened in the labour relations and the labour policies. In view of the above situation, the new political dispensation that came into existence and operation in 1994 developed a new labour legislative framework with specific focus on the review of the collective bargaining dispensation. Of significant importance was the entrenchment of labour rights in the Constitution of the Republic of South Africa, 1996. Section 23 of the Constitution is extensive in highlighting the importance to protect amongst others, the right of every trade union to organize and engage in collective bargaining, disclosure of information, restricted rights in domestic sector, rights to establish threshold of representativeness, organizational rights in collective agreements and disputes about organizational rights.
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Mrewa, Loyce. "The legality of using the United Nations Security Council to bind third parties to the Rome Statute." Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/25071.
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The consequential problems emanating from the linkages between law and politics in the international sphere will be examined in this dissertation. In particular, the SC referral mechanism to the ICC and its associated problems will be explored. The primary focus will be an investigation of the procedure used to refer a situation to the ICC, provided in Article 13 (b) of the Rome Statute.
Books on the topic "Parties to a public law dispute"
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Oellers-Frahm, Karin, and Andreas Zimmermann, eds. Dispute Settlement in Public International Law. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4.
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Perceptions in litigation and mediation: Lawyers, defendants, plaintiffs, and gendered parties. Cambridge [UK]: Cambridge University Press, 2009.
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La ejecución de la pena privativa de libertad: Una lectura desde la perspectiva del derecho internacional de los derechos humanos. Bogotá: Pontificia Universidad Javeriana, 2009.
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Timol, Farhad. Le public des maisons de justice. Saint-Denis: Observatoire du développement de la Réunion, 1998.
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McGillis, Daniel. Community dispute resolution programs and public policy. Washington, D.C: U.S. Dept. of Justice, National Institute of Justice, Office of Communication and Research Utilization, 1986.
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James, Rhoda. Private ombudsmen and public law. Aldershot, Hants, England: Ashgate, Dartmouth, 1997.
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Podziba, Susan L. Civic fusion: Mediating polarized public disputes. Chicago, IL: American Bar Association Section of Dispute Resolution, 2012.
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Der übermächtige Dritte: Eine rechtsvergleichende Untersuchung über den streitschlichtenden und streitentscheidenden Dritten. Berlin: Duncker & Humblot, 1985.
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Alternative dispute resolution for government contracts. Chicago: CCH Inc., 2004.
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Miller, Gale. Dispute domains and welfare claims: Conflict and law in public bureaucracies. Greenwich, Conn: Jai Press, 1996.
Find full textBook chapters on the topic "Parties to a public law dispute"
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Khan, Rebecca E. "Not a Third Party: Home State Participation As a Matter of Right in Investment Treaty Arbitration." In Public Actors in International Investment Law, 97–115. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-58916-5_6.
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AbstractHost states are not the only sovereign parties that an investment dispute can impact. The sovereign interests of an investor’s home state are also potentially affected by an investment claim initiated by a national against an investment treaty partner, and more mechanisms should be put in place to ensure that the home state has access to the arbitration proceedings. This chapter argues for non-disputing state party participation as a matter of right in investment treaty arbitration cases. Whether or not the home state of the investor is informed of and allowed to participate in an investment dispute has largely been left to the discretion of arbitral tribunals; arbitration rules and jurisprudence have regarded the home state no differently than non-governmental third parties seeking to participate in the arbitration as amici curiae. From the perspective of increased transparency in the investor-state dispute settlement system, this chapter posits that non-disputing state parties must be accorded an elevated status in investor-state arbitration, with the following rights: first, to be formally notified at the outset about an investment treaty dispute; second, to have access to the documents of the arbitration case; and, third, to make written submissions with respect to the interpretation of the international investment agreement invoked in the claim. The analysis begins by identifying the sovereign interests of the home state that come into play in an investment treaty arbitration. The perils of diplomatic protection are examined in this chapter, to provide the perspective from which to delimit the parameters for non-disputing state party participation. A survey of arbitration rules and jurisprudence outlines the level of participation thus far accorded to home states in investment treaty arbitration.
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Magraw, Kendra. "Trends and ISDS Backlash Related to Non-Disputing Treaty Party Submissions." In Public Actors in International Investment Law, 79–96. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-58916-5_5.
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AbstractSome international investment agreements (IIAs) allow states that are parties to a treaty, but are not party to a specific dispute under that treaty, to intervene on a limited basis in order to make submissions on matters of treaty interpretation. Such mechanisms have proved to be highly valued by treaty parties, as evident by the many recently-concluded IIAs containing increasingly sophisticated non-disputing treaty party (NDTP) provisions. This chapter: (1) provides the background on NDTPs mechanisms, with a focus on the North American Free Trade Agreement (NAFTA) (the first-known IIA to contain such a provision); (2) examines the possible connection between tribunals failing to give due regard to treaty parties’ interpretive positions (again focusing on NAFTA) and the current backlash against investor-state dispute settlement (ISDS); and (3) analyses trends in recently-concluded IIAs. It is argued that the apparent lack of deference given by tribunals to NDTP submissions may be contributing to the current backlash against ISDS, based on two discernible trends: (1) an increase in the number of IIAs containing NDTPs provisions; and (2) provisions that now state that not only are treaty interpretations made by treaty parties binding on tribunals (such provisions also have their genesis in NAFTA), but that, in addition, tribunals’ decisions must be consistent with such agreed interpretations (the latter an innovation of a NAFTA party in 2003). Such trends are also visible at the institutional and multilateral levels, such as the revision of the Arbitration Rules of the International Centre for Settlement of Investment Disputes (ICSID) and the Mauritius Convention on Transparency in ISDS of the United Nations Commission on International Trade Law (UNCITRAL), and show no sign of slowing down.
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Petersen, Clement Salung. "The Public Policy-Implementing Role of Nordic Courts in Civil Dispute Resolution." In Ius Gentium: Comparative Perspectives on Law and Justice, 213–33. Cham: Springer International Publishing, 2021. http://dx.doi.org/10.1007/978-3-030-74851-7_12.
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AbstractThis chapter explores the role of Nordic courts in safeguarding certain public values and interests, whether substantial or procedural, in the three types of civil dispute resolution that can potentially lead to state enforcement, namely civil litigation, arbitration and mediation. First, it shows how Nordic courts in civil litigation may take on an’active role’ vis-à-vis the parties but that the legal contours of this role remain unclear and controversial. Secondly, it shows how current and proposed statutory frameworks governing arbitration and mediation give national courts an important role in safeguarding public values and interests which raises important questions in law concerning the role of courts as gatekeepers of access to court and state enforcement for private actors. The chapter concludes with a discussion of the need for developing a clearer and more coherent approach to defining this public policy-implementing role of courts across all three types of civil dispute resolution. It is argued that such a coherent approach is needed and that it will be valuable to analyse the public policy-implementing role of courts in a Nordic context, since the Nordic countries generally share many of these relevant public values and interests.
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Singh, Vinai Kumar. "UNCLOS Dispute Settlement System and India." In Shifting Horizons of Public International Law, 159–96. New Delhi: Springer India, 2018. http://dx.doi.org/10.1007/978-81-322-3724-2_8.
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Oellers-Frahm, Karin, and Andreas Zimmermann. "Vienna Convention on the Law of Treaties." In Dispute Settlement in Public International Law, 135–38. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4_7.
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Oellers-Frahm, Karin, and Andreas Zimmermann. "Hague Convention for the Pacific Settlement of International Disputes." In Dispute Settlement in Public International Law, 3–36. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4_1.
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Oellers-Frahm, Karin, and Andreas Zimmermann. "Europe." In Dispute Settlement in Public International Law, 149–206. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4_10.
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Oellers-Frahm, Karin, and Andreas Zimmermann. "Arbitral Tribunal and Mixed Commission for the London Agreement on German External Debts." In Dispute Settlement in Public International Law, 1678–700. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4_100.
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Oellers-Frahm, Karin, and Andreas Zimmermann. "Arbitral Tribunal Established by the Austro-German Property Treaty." In Dispute Settlement in Public International Law, 1701–14. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4_101.
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Oellers-Frahm, Karin, and Andreas Zimmermann. "Arbitral Tribunal Established by the Austro-German Treaty on Finance and Compensation." In Dispute Settlement in Public International Law, 1715–19. Berlin, Heidelberg: Springer Berlin Heidelberg, 2001. http://dx.doi.org/10.1007/978-3-642-56626-4_102.
Full textConference papers on the topic "Parties to a public law dispute"
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Ağaoğlu, Cahit. "Problems of Turkish and Foreign Construction Companies on the Fidic Arbitration Rules." In International Conference on Eurasian Economies. Eurasian Economists Association, 2017. http://dx.doi.org/10.36880/c08.01954.
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FIDIC rules are generally accepted as standard contract for construction projects in international commercial practice. Disputes arising from standard agreements are often referred to as international arbitration rules. However, at the beginning of the difficulties encountered in the arbitration proceedings under the FIDIC Rules at the international arbitration institutions, the question is whether the engineer is impartial. On the other hand, the fact that the Dispute Adjudication Board (DAB) has been used effectively is also an important issue. It has been revealed through the case-law that the adoption of the FIDIC Rules by the domestic laws of the parties has not yet reached the desired stage. Aside from the fact that arbitral awards are confronted with public authority during the enforcement phase, there are also difficulties of parallel proceedings that national courts have resorted to legal proceedings although there is an agreement involving arbitration clauses. The protection of the investor, the equitable treatment of the investor and the protection against expropriation are all on the agenda and a direct link can be established between FIDIC and Bilateral Investment Treaties.
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Keršulienė, Violeta, and Jūratė Butkienė. "CHOOSING THE MOST ECONOMICALLY ADVANTAGEOUS SOLUTION TO THE DECISION OF THE ISSUE." In Business and Management 2018. VGTU Technika, 2018. http://dx.doi.org/10.3846/bm.2018.33.
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Countries in conflict, trying to make a resolution, encounter a decision process. Often, in practice deci-sions are made based on groundless rationalization, therefore it is commonly believed that it is experi-ence and intuition that are key to the decision making process. Since decisions in law are usually based on logical reasoning, taking into account conflict circumstances and facts, the success of this decision can be determined with mathematical calculation. In recent decades, as the boundries be-tween scholarly disciplines blur, new ones are formed, which are not entirely indepedent, but bring in new research methods. Law and economics is a clear example of this interdisciplinery relation. The law system impacts the economical atmosphere, therefore before taking decision in law, economical aspects must be evaluated. Striving to resolve the disputes between parties at work mathematical cal-culations are used in order to analyze the expected behaviour of each party. Guidance for parties having dispute is the most economically viable option for completing the dispute.
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Tian, Zehua. "The Amelioration of Online Dispute Resolution (ODR) for Business-to-consumer Electronic Commerce: from Consumer Protection Perspective." In Annual International Conference on Law, Regulations and Public Policy. Global Science & Technology Forum (GSTF), 2014. http://dx.doi.org/10.5176/2251-3809_lrpp14.36.
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Mitkus, Sigitas, and Dalia Averkienė. "Legal significance of construction documents: consequences of non-implementation of contractual regulations for the client and the contractor in Lithuania." In Contemporary Issues in Business, Management and Economics Engineering. Vilnius Gediminas Technical University, 2019. http://dx.doi.org/10.3846/cibmee.2019.068.
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Purpose – the article discusses the construction documents and their significance enshrined in Contractual Regulations and aims to disclose the consequences of the preparation or non-preparation of the construction documents for the client and the contractor. For this purpose, the general features of construction documents shall be reviewed first, and the certificate of acceptance of construction work and reports shall be analyzed separately. Findings – the results of the study state that in client/contractor relationship, the rights and duties between the participants to a construction project and the preconditions for the cooperation between the parties in a legal relationship in construction are determined and provided in the construction documents. All construction documents that have been analyzed are drawn up specifically for construction work. On the one hand, the law gives the right or imposes an obligation on to the client and the contractor to sign and deliver the construction documents to another party in a legal relationship in construction. On the other hand, signing (non-signing), submission (non-submission) of the acceptance certificate of construction work and reports can lead to a division of responsibilities between the client and the contractor (who are often business entities), the obligation to eliminate the defects in the work, to compensate for the damage, and to pay for work. Research limitations – though Lithuania has similarities with other EU countries in terms of the legal environment of construction, the generalisation of these results to another context is limited. Practical implications – the findings could be directly applied in practice. Understanding and using the findings could prevent disputes between owners and contractors in practice. Originality/Value – there is a lack of publications on the subject. Construction documents regulate the contractual relationship (performance of work, settlement, elimination of defects, etc.) between the client and the contractor. Therefore, proper and timely preparation of these documents is an important part of the implementation of contractual relationship both for business entities and the public using construction results.
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Zinovieva, Darina. "MEDIATION AND MEDIATORS IN THE HEALTHCARE." In THE MEDIATION IN THE DIFFERENT PUBLIC SPHERES 2021. University publishing house "Science and Economics", University of Economics - Varna, 2021. http://dx.doi.org/10.36997/mdps2021.24.
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It is considered how mediation is regulated as an out-of-court way of agreement between two disputing parties in the healthcare system. For this purpose, an analysis of the current general and special laws, according to which such an agreement can be implemented, has been made. Practical issues related to problems in the implementation of the agreement are also presented, in view of the specifics of the disputes in the healthcare sector. The new legal figure of a "health mediator" is analyzed, the rights and obligations that are normatively regulated, the benefits and the needs for optimization of the regulation. The results of the analysis are summarized and specific conclusions "de lege ferenda" are proposed.
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Zinovieva, Darina. "MEDIATION AND MEDIATORS IN THE HEALTHCARE." In THE MEDIATION IN THE DIFFERENT PUBLIC SPHERES 2021. University publishing house "Science and Economics", University of Economics - Varna, 2021. http://dx.doi.org/10.36997/mdps2021.2.
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It is considered how mediation is regulated as an out-of-court way of agreement between two disputing parties in the healthcare system. For this purpose, an analysis of the current general and special laws, according to which such an agreement can be implemented, has been made. Practical issues related to problems in the implementation of the agreement are also presented, in view of the specifics of the disputes in the healthcare sector. The new legal figure of a "health mediator" is analyzed, the rights and obligations that are normatively regulated, the benefits and the needs for optimization of the regulation. The results of the analysis are summarized and specific conclusions "de lege ferenda" are proposed.
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de la Rosa, Fernando Esteban, and John Zeleznikow. "Making intelligent online dispute resolution tools available to self-represented litigants in the public justice system." In ICAIL '21: Eighteenth International Conference for Artificial Intelligence and Law. New York, NY, USA: ACM, 2021. http://dx.doi.org/10.1145/3462757.3466077.
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Sharkey, Nolan, and Tetiana Muzyka. "Foundation Atrocities and Public History: The Role of Lawyers in Finding Truth." In The 8th International Scientific Conference of the Faculty of Law of the University of Latvia. University of Latvia Press, 2022. http://dx.doi.org/10.22364/iscflul.8.2.16.
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History provides the basis for nations’ existence. Yet, history is capable of telling different stories in relation to the same events. It is also open to manipulation and distortion. More so than ever, this is the case with the easy availability and cross border reach of many forms of media. In addition, the concept of public history recognises that representations of history are not made solely by professional historians. The conclusion that must be reached from this is that history is open to contesting and it is not necessarily a fair contest favouring accuracy. This paper argues that law and legal scholars can play a role in settling significant historical disputes by applying the rigour of legal dispute settlement institutions. Consideration of evidence and narrowing arguments to relevant issues are of significant worth. These possibilities are illustrated through the debates surrounding two significant atrocities of history, the Great Irish Famine and the Ukrainian Holodomor. Both events have a critical place in the nation-building of the Irish and the Ukrainians, yet the debate rages on as to whether they may or may not be genocide. We review the historical issues and the genocide issue and suggest that legal scholars rather than historians may assist in settling rather than perpetuating the disputes.
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Dauster, Manfred. "Criminal Proceedings in Times of Pandemic." In The 8th International Scientific Conference of the Faculty of Law of the University of Latvia. University of Latvia Press, 2022. http://dx.doi.org/10.22364/iscflul.8.2.18.
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COVID-19 caught humanity off guard at the turn of 2019/2020. Even when the Chinese government sealed off Wuhan, a city of millions, for weeks to contain the epidemic, no one in other parts of the world had any idea of what specifically was heading for the countries. The ignorant and belittling public statements and tweets of the former US president are still fresh in everyone's memory. Only when the Italian army carried the coffins with the COVID-19 victims in northern Italy, the gravesites spread in the Bergamo region, as well as the intensive care beds filled in the overcrowded hospitals, the countries of the European Union and other parts of the world realised how serious the situation threatened to become. Together with the World Health Organisation (WHO), the terms changed to pandemic. Much of the pandemic evoked reminiscences originating in the Black Death raging between 1346 and 1353 or in the Spanish flu after the First World War. Meanwhile, life went on. The administration of justice in criminal cases could not and should not come to a standstill. Emergency measures, such as those that began to emerge in February 2020, are always the hour of the executive. In their efforts to stop the spread of the virus, in Germany, governments particularly reflected on criminal proceedings. Neither criminal procedural law nor the courts and court administrations applying this procedural law were adequately prepared for the challenges. Deadlines threatened to expire, access to court buildings and halls had to be restricted to reduce the risk of infection, public hearings represented a potential source of infection for both the parties to the proceedings and the public, virtual criminal hearings via conference calls had not yet been tested in civil proceedings, but were legally possible, but not so in criminal cases. The taking of evidence in criminal cases in Germany is governed by the rules of strict evidence and is largely not at the disposal of the parties to the proceedings. Especially in criminal cases, fundamental and human rights guarantees serve to protect the accused, but also the victims and witnesses. Executive measures of pandemic containment might impact these guarantees. Here, an attempt will be made to discuss at some neuralgic points how Germany has attempted to balance the resulting contradictory interests in the conflict between pandemic control and constitutional requirements for criminal court proceedings.
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Petrova, Daniela. "LEGAL OPPORTUNITIES AND CHALLENGES IN THE DIGITAL TRANSFORMATION OF THE LABOR FORCE." In EDUCATION, SCIENCE AND DIGITAL INNOVATIONS 2021. Varna Free University "Chernorizets Hrabar", 2022. http://dx.doi.org/10.36997/esdi2021.101.
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The aim of the author in this publication is to present the challenges to the legislator on the one hand and on the other hand in practical terms how they would affect the new requirements for employment. When entering and using digital tools in the labor process there is a need to improve the training and qualification skills of the parties in the labor process - worker and employer. This requires alignment with the new digital transformations of the existing legal framework in the field of labor law at European and national level.The purpose of the author in this publication is to present the legal and professional requirements for the protection of personal data in the modern digital society. To determine the scope and grounds for handling personal data that each of us provides in the civil law turnover of public relations.
Reports on the topic "Parties to a public law dispute"
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Ayala, David, Ashley Graves, Colton Lauer, Henrik Strand, Chad Taylor, Kyle Weldon, and Ryan Wood. Flooding Events Post Hurricane Harvey: Potential Liability for Dam and Reservoir Operators and Recommendations Moving Forward. Edited by Gabriel Eckstein. Texas A&M University School of Law Program in Natural Resources Systems, September 2018. http://dx.doi.org/10.37419/eenrs.floodingpostharvey.
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When Hurricane Harvey hit the Texas coast as a category 4 hurricane on August 25, 2017, it resulted in $125 billion in damage, rivaling only Hurricane Katrina in the amount of damage caused. It also resulted in the deaths of 88 people and destroyed or damaged 135,000 homes. Much of that devastation was the result of flooding. The storm dumped over 27 trillion gallons of rain over Texas in a matter of days. Some parts of Houston received over 50 inches of rainfall. The potential liability that dam and reservoir operators may face for decisions they make during storm and flooding events has now become a major concern for Texas citizens and its elected officials. Law suits have now been instituted against the federal government for its operation of two flood control reservoirs, as well as against the San Jacinto River Authority for its operation of a water supply reservoir. Moreover, the issues and concerns have been placed on the agenda of a number of committees preparing for the 2019 Texas legislative session. This report reviews current dam and reservoir operations in Texas and examines the potential liability that such operators may face for actions and decisions taken in response to storm and flooding events. In Section III, the report reviews dam gate operations and differentiates between water supply reservoirs and flood control reservoirs. It also considers pre-release options and explains why such actions are disfavored and not recommended. In Section IV, the report evaluates liabilities and defenses applicable to dam and reservoir operators. It explains how governmental immunity can limit the exposure of state and federally-run facilities to claims seeking monetary damages. It also discusses how such entities could be subject to claims of inverse condemnation, which generally are not subject to governmental immunity, under Texas law as well as under the Fifth Amendment to the U.S. Constitution. In addition, the Section discusses negligence and nuisance claims and concludes that plaintiffs asserting either or both of these claims will have difficulty presenting successful arguments for flooding-related damage and harm against operators who act reasonably in the face of storm-related precipitation. Finally, Section V offers recommendations that dam and reservoir operators might pursue in order to engage and educate the public and thereby reduce the potential for disputes and litigation. Specifically, the report highlights the need for expanded community outreach efforts to engage with municipalities, private land owners, and the business community in flood-prone neighborhoods both below and above a dam. It also recommends implementation of proactive flood notification procedures as a way of reaching and alerting as many people as possible of potential and imminent flooding events. Finally, the report proposes implementation of a dispute prevention and minimization mechanism and offers recommendations for the design and execution of such a program.
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Ashley, Caitlyn, Elizabeth Spencer Berthiaume, Philip Berzin, Rikki Blassingame, Stephanie Bradley Fryer, John Cox, E. Samuel Crecelius, et al. Law and Policy Resource Guide: A Survey of Eminent Domain Law in Texas and the Nation. Edited by Gabriel Eckstein. Texas A&M University School of Law Program in Natural Resources Systems, 2017. http://dx.doi.org/10.37419/eenrs.eminentdomainguide.
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Eminent Domain is the power of the government or quasi-government entities to take private or public property interests through condemnation. Eminent Domain has been a significant issue since 1879 when, in the case of Boom Company v. Patterson, the Supreme Court first acknowledged that the power of eminent domain may be delegated by state legislatures to agencies and non-governmental entities. Thus, the era of legal takings began. Though an important legal dispute then, more recently eminent domain has blossomed into an enduring contentious social and political problem throughout the United States. The Fifth Amendment to the United States Constitution states, “nor shall private property be taken for public use, without just compensation.” Thus, in the wake of the now infamous decision in Kelo v. City of New London, where the Court upheld the taking of private property for purely economic benefit as a “public use,” the requirement of “just compensation” stands as the primary defender of constitutionally protected liberty under the federal constitution. In response to Kelo, many state legislatures passed a variety of eminent domain reforms specifically tailoring what qualifies as a public use and how just compensation should be calculated. Texas landowners recognize that the state’s population is growing at a rapid pace. There is an increasing need for more land and resources such as energy and transportation. But, private property rights are equally important, especially in Texas, and must be protected as well. Eminent domain and the condemnation process is not a willing buyer and willing seller transition; it is a legally forced sale. Therefore, it is necessary to consider further improvements to the laws that govern the use of eminent domain so Texas landowners can have more assurance that this process is fair and respectful of their private property rights when they are forced to relinquish their land. This report compiles statutes and information from the other forty-nine states to illustrate how they address key eminent domain issues. Further, this report endeavors to provide a neutral third voice in Texas to strike a more appropriate balance between individual’s property rights and the need for increased economic development. This report breaks down eminent domain into seven major topics that, in addition to Texas, seemed to be similar in many of the other states. These categories are: (1) Awarding of Attorneys’ Fee; (2) Compensation and Valuation; (3) Procedure Prior to Suit; (4) Condemnation Procedure; (5) What Cannot be Condemned; (6) Public Use & Authority to Condemn; and (7) Abandonment. In analyzing these seven categories, this report does not seek to advance a particular interest but only to provide information on how Texas law differs from other states. This report lays out trends seen across other states that are either similar or dissimilar to Texas, and additionally, discusses interesting and unique laws employed by other states that may be of interest to Texas policy makers. Our research found three dominant categories which tend to be major issues across the country: (1) the awarding of attorneys’ fees; (2) the valuation and measurement of just compensation; and (3) procedure prior to suit.
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Gledhill, Igle, Richard Goldstone, Sanya Samtani, Keyan Tomaselli, and Klaus Beiter. Copyright Amendment Bill Workshop Proceedings Report. Academy of Science of South Africa (ASSAf), 2022. http://dx.doi.org/10.17159/assaf.2022/0078.
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The genesis of the Copyright Amendment Bill was in 2009, when the Department of Trade and Industry (DTI) initiated various studies and impact assessments. In July 2015, the DTI published a Draft Copyright Amendment Bill for public comment. The final 2017 version of the Bill was approved by Parliament in 2019 and it was sent to President Cyril Ramaphosa for action in terms of Section 79(1) of the Constitution. Section 79(1) states that “The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration”. The President referred the Bill back to Parliament for review on 16 June 2020, on constitutionality issues. In response to the President’s reservations, Parliament’s Portfolio Committee on Trade and Industry has invited stakeholders and other interested parties to submit written submissions on certain sections of the Bill by no later than 9 July 2021. The current copyright law is outdated and does not address the digital environment. The Academy of Science of South Africa seeks to take into account the status of the copyright legislation and the anticipated effects of the amendment Bill on different issues and thereafter, provide recommendations to the President.