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1
Sianondo, Clavel. "Arbitration practice in Zambia : the process and its legal impediments". Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20794.
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Arbitration as a process of dispute resolution has been pivotal in addressing a lot of business needs to have the dispute resolved within a short period and with less inconveniences to their business. The principle of confidentiality gives impetus to the process. The skill of the arbitrators and the general party autonomy has made the process and awards to be fully complied. Despite the monumental progress made in the field of arbitration as a means of dispute settlement, the process has been beset by reversal which is inherent in the Arbitration Act itself thereby whittling down the advantages ascribed to the process. To this end, the study therefore highlights the historical development of arbitration in Zambia. The process of arbitration and its role in enhancing access to justice will also be examined. The advantages and how the same have been weakened by the Arbitration Act, other legislations and indeed the interpretive impositions by the court will be investigated. Among other provisions which fly in the teeth of the entire process is its usually unqualified attachment to the court system without cognisance of the aspiration of the entire process of arbitration. To redress these weaknesses in the Act and the rules which guide the arbitration process, this study will spur reforms so as to bring the law into conformity with the expectations of the end users.
2
Wong, Kai Ming. "Stay for arbitration in construction disputes". access abstract and table of contents access full-text, 2007. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22052203a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2007.Title from PDF t.p. (viewed on Sept. 7, 2007) "Master of Arts in arbitration and dispute resolution 2006/2007, LW6409A research project" Includes bibliographical references.
3
Girao, La Rosa Juan Carlos. "Economic labor arbitration as a conflicts resolution mechanism in Peru". THĒMIS-Revista de Derecho, 2018. http://repositorio.pucp.edu.pe/index/handle/123456789/123858.
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The amount of labor law arbitrations has significantly increased through the last years. This has concurred with a legal modification that establishes specific causes for facultative arbitration.In this paper, the author analyzes this normative change while clarifying the polemics over its juridical nature and inquiring about its future effects regarding labor relationships disputes resolution.En los últimos años se ha incrementado de manera notable el número de arbitrajes laborales. Esto ha coincidido con la promulgación del Decreto Supremo 014-2011-TR, que modifica el Reglamento de la Ley de Relaciones Colectivas de Trabajo especificando causales de procedencia específicas para el arbitraje potestativo.En el presente artículo, el autor analiza esta modificación normativa esclareciendo las polémicas en torno a su naturaleza jurídica e indagando sobre sus efectos a futuro en la resolución de disputas relativas a relaciones laborales.
4
Jacyk, David William. "Arbitration in WTO disputes : the forgotten alternative". Thesis, University of British Columbia, 2007. http://hdl.handle.net/2429/32137.
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The creation of a binding adjudication system under the Dispute Settlement Understanding ("DSU") is one of the major successes of the WTO. However, while the Dispute Settlement Body ("DSB") has experienced a high level of compliance with its
rulings, there have been enough failures to raise concerns about compliance with WTO rulings. This in turn endangers the long term viability and legitimacy of the WTO as a decision-making body. This thesis explores the possibility of more effective integration of arbitration as a means of dealing with a small number of problematic cases where compliance with a ruling is doubtful. It considers arbitration as an alternative to what has
effectively become an institutionalized litigation system involving panels and the Appellate Body, and as an adjunct to the diplomatic resolution of disputes, particularly for policy driven cases where compliance with WTO rulings is more doubtful.
While proposals for the use of arbitration made during the Uruguay Round of negotiations leading to the creation o f the WTO have been realized in the provisions of the DSU, arbitration has never been effectively tested as a true alternative. Further, arbitration as an alternative to the litigation system has been almost entirely ignored in the context of the current debate over reform of the WTO dispute settlement system. After over a decade of WTO decision making, it is now an opportune point to consider meaningful institutional reform that more fully incorporates arbitration as an alternative form of dispute settlement at the WTO in politically difficult cases, and that builds on the existing but underused arbitration provision in Article 25 of the DSU. This thesis challenges the predominant bias towards the litigation system involving panels and the Appellate Body as a one-size-fits-all solution. It explores the potential role of arbitration, in the context of compliance theories, a historical review of the negotiations during the Uruguay Round, and an analysis of the shortcomings of the current DSU that contribute to the problems of non-compliance.Law, Peter A. Allard School of
Graduate
5
Musukubili, Felix. "A comparison of the South African and Namibian labour dispute resolution system". Thesis, Nelson Mandela Metropolitan University, 2009. http://hdl.handle.net/10948/1040.
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The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.
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Carlson, Melanie A. "The Corporate Exploitation of Fundamental Rights: A Nation of Arbitration". Scholarship @ Claremont, 2017. http://scholarship.claremont.edu/cmc_theses/1507.
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This thesis is an in-depth discussion and analysis of the alternative dispute resolution process of arbitration in the United States. It begins by providing a basic explanatory overview of arbitration clauses and the arbitration process. It then goes on to highlight the various benefits over traditional court litigation that arbitration has to offer. From there, the paper presents a detailed discussion of the many shortcomings of the arbitration process. It identifies the overall lack of procedural fairness that exists in arbitration today due to the fact that arbitration currently tends to favor businesses over consumers and workers during dispute settlements. The paper then identifies the various negative potential consequences that exist as a result of the unfair nature of arbitration today. This thesis concludes by presenting various ways that the arbitration process can be improved upon to make for a fairer, more neutral dispute resolution alternative.
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Al-Obaidli, Jassim Mohammed A. A. "Arbitration law in Qatar : the way forward". Thesis, Robert Gordon University, 2016. http://hdl.handle.net/10059/1564.
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Qatar is among the fastest growing developing countries in all fields. Since the State of Qatar gained independence from the United Kingdom, the Qatari government has been focusing on the formation of state institutions to keep pace with global development. In 1971, Qatar released the first civil and commercial law. The country established the first step towards the separation of civil and commercial transactions of Islamic law. However, the ever-changing nature of business and global economy requires significant economic and societal changes. With the increase of foreign investors in Qatar, there had to be a law governing arbitration in contracts. Therefore, the government promulgated the arbitration clause in commercial contracts; the first code of civil and commercial procedure contains a chapter of the arbitration. However, the provisions of arbitration included in this law are not compatible with the UNCITRAL Model Law. Although there is a shortage in literature regarding arbitration in Qatar, several studies discussed issues related to arbitration in Qatar and called for the adoption of a new separate arbitration law in Qatar compatible with the UNCITRAL one. This prompted Qatar to work on a new draft law of arbitration, especially after the ratification of the New York Convention 1985 by Qatar. However, these studies did not cover other factors which affect arbitration; such as cultural attitude towards arbitration and issues affecting the practice of arbitration in Qatar. Unlike previous studies regarding arbitration in Qatar, this thesis uses multi-methods to get an answer of the main question of the research, which is: “Will the new Arbitration Draft Law solve all the issues related to arbitration in Qatar, thereby attracting international companies to Qatar and its law for their arbitration?” The thesis reviews the related literature in the first stage. Then it analyses interviews which were held with a number of arbitration stakeholders, the recent Qatari draft law of arbitration, the GCC unified arbitration draft law and the Qatar Financial Centre (QFC) draft law. After that it conducts a comparison between the current provisions of arbitration, the Qatari arbitration draft law and the GCC unified arbitration draft law in light of the UNCITRAL Model Law and the Egyptian Arbitration Law. This multi-methods study results in recommendations which are listed in its conclusion. It is worth mentioning that both the Qatari arbitration draft law and the QFC draft law are considered for the first time in a research study. Also, the interviews which were held for the purpose of this research enrich the outcome as the participants were chosen from various categories of arbitration stakeholder, where some of them represent official entities; such as the Legislation Department of the Ministries Council and some of them are high ranking officials of these entities; such as the Minister of Justice.
8
Gerber, Marcel. "Alternative dispute resolution in the BRICS nations: A comparative labour law perspective". University of the Western Cape, 2019. http://hdl.handle.net/11394/6996.
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Magister Legum - LLMAlternative dispute resolution refers to forms of dispute resolution, other than traditional and formal court based litigation. A notable benefit of alternative dispute resolution is that different processes are available for resolving a particular dispute in the most effective and efficient manner possible. Alternative dispute resolution includes but is not limited to arbitration, mediation, negotiation, conciliation and facilitation. The Constitution of the Republic of South Africa, 1996, lists human dignity, equality and the advancement of human rights and freedoms as the founding values of the Republic of South Africa. In terms of section 9(1) of the Constitution everyone is regarded as equal before the law and has the right to equal protection and benefit of the law in South Africa. Often it is however argued that traditional court based litigation hinders the full enjoyment of these rights by individuals. Consequently, alternative dispute resolution is attractive as an alternative to court based litigation as it is regarded as less expensive, more time effective and results in less conflict when it comes to resolving disputes in the most accessible, effective and efficient manner possible, in both developed and developing countries. The study will first focus on the pitfalls to traditional court based litigation in South Africa. The relevant legislation and processes which provide for alternative dispute resolution processes in South Africa, with specific focus on alternative dispute resolution in labour disputes, will be considered. Consideration will be given to the provision of alternative dispute resolution as contained in the Constitution, the Labour Relations Act 66 of 1995, the Rules for the Conduct of Proceedings before the CCMA of 2003 and the Arbitration Act 42 of 1965. The study will thereafter proceed to consider the use of alternative dispute resolution in labour disputes in Brazil, Russia, India and China, who, together with South Africa, are collectively referred to as BRICS. These five nations are considered the world’s leading emerging economies, with similar economic capabilities and demographics.
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Kirunda, Solomon Wilson. "Slithering towards uniformity: the international commercial arbitration and conciliation working group of UNCITRAL as a key player in the strengthening and liberalisation of international trade". Thesis, University of the Western Cape, 2005. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_2438_1254403625.
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The objective of this study was to examine and review the main features and works of the arbitration and conciliation working group of UNCITRAL while demonstrating their impact on international trade.
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Van, Gorp John D. "Binding arbitration and the summary trial with binding decision : a comparison of the two methods in resolving disputes". Thesis, Monterey, Calif. : Springfield, Va. : Naval Postgraduate School ; Available from National Technical Information Service, 2002. http://library.nps.navy.mil/uhtbin/hyperion-image/02Jun%5FVanGorp.pdf.
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Pfumorodze, Jimcall. "WTO dispute settlement: challenges faced by developing countries in the implementation and enforcement of the Dispute Settlement Body (DSB) recommendations and rulings". Thesis, University of the Western Cape, 2007. http://etd.uwc.ac.za/index.php?module=etd&action=viewtitle&id=gen8Srv25Nme4_6761_1219309592.
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Aims of the research paper is to examine the legal framework
of implemantation and enforcement of DSB recommendations and rulings and to investigate the trend of non-compliance with BSD recommendations and rulings where complianant
is a developing country.
12
Cheu, Yu Kok. "Dispute resolution in Hong Kong Fire Services Department". access abstract and table of contents access full-text, 2008. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b23454246a.pdf.
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Suen, Chee-hang Henry. "A selection model of dispute resolution systems for construction professionals /". Hong Kong : University of Hong Kong, 2000. http://sunzi.lib.hku.hk/hkuto/record.jsp?B25950034.
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Holgate, Mark. ""Is the international regime of the Arbitration Ordinance compatible with the right to court access under the Basic Law?"". access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21843247a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2006."MA arbitration and dispute resolution, City University of Hong Kong, dissertation (LW 6409)" Title from PDF t.p. (viewed on May 22, 2007) Includes bibliographical references.
15
Ndimurwimo, Leah Alexis. "An evaluation of the dispute resolution mechanisms of conciliation and arbitration". Thesis, Nelson Mandela Metropolitan University, 2008. http://hdl.handle.net/10948/753.
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South African labour laws have undergone tremendous amendments before and after independence. This paper focuses on the development after independence, therefore section 34 of the Constitution of 1996, provisions of the Labour Relations Act of 1995 and other laws which deal with labour matters and regulate the labour relations and disputes in the country will be considered. The labour laws in South Africa provide inter alia for the dispute resolution mechanisms, the manner on which disputes should be handled by different organs which are empowered to do so. My focus will be to see how alternative disputes resolution processes of conciliation and arbitration in the Eastern Cape Province aim to transform the South African and global labour market by promoting an integrated simple, quick but efficient and inexpensive dispute settlement services in order to reduce the back log of cases, maintain labour peace, promote democracy at workplace with the view of advancing economic and social justice.
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Fung, Wing Sze. "Dispute resolution for intellectual property disputes on designing and issuing collectibles". access abstract and table of contents access full-text, 2007. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22445924a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2007."Master of Arts in arbitration and dispute resolution, LW6409 dissertation." Title from PDF t.p. (viewed on Apr. 1, 2008) Includes bibliographical references.
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Torgbor, Edward Nii Adja. "A comparative study of law and practice of arbitration in Kenya, Nigeria and Zimbabwe, with particular reference to current problems in Kenya". Thesis, Stellenbosch : Stellenbosch University, 2013. http://hdl.handle.net/10019.1/80182.
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Thesis (LLD)--Stellenbosch University, 2013.Bibliography
ENGLISH ABSTRACT: Arbitration as a mode of dispute settlement has been growing steadily all over the world. The momentum for commercial arbitration in particular was provided by the 1985 UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”). Legislation based on the Model Law has been enacted in many countries. The arbitration laws of three of these countries, Kenya, Nigeria and Zimbabwe, are selected for consideration in this dissertation because of their common origins, similar statutes, similar problems, shared experiences, and their regional distribution. As the writer’s arbitration practice is based in Kenya, that jurisdiction is the primary, albeit not the only, source and foundation for this work, the focal point of reference and the citations from the law and practice incorporated in this research. The work consists of three chapters. Chapter one is a brief introduction and an overview of arbitration. This is followed by the statement of the research question, the justification for the research, methodology and the structure and content of the dissertation. Chapter two describes the legal and contextual framework for the investigation of the research questions in the selected jurisdictions of Kenya, Nigeria and Zimbabwe. Customary Law arbitration is included as a significant feature of African arbitration law. The UNCITRAL Model Law, the Arbitration Act, 1995 (Kenya), the Arbitration and Conciliation Act, 1988 (Nigeria), the Arbitration Act, 1996 (Zimbabwe), the Arbitration Act, 1996 (England), and the South African Draft Arbitration Bill are all used as legislative or statutory points of reference in the discussion of the research questions. Chapter 3 contains the main focus of the dissertation in which six recurrent arbitration problems in Kenya are discussed in the context of domestic arbitration. The research investigates (i) the illusiveness of consent as the basis for consensual arbitration (ii) jurisdictional challenges (iii) the procedural powers of the arbitral tribunal (iv) the disruptive effect of adjournments and postponements on the arbitral process (v) constraints on the granting of interim relief and (vi) the enforcement of the arbitral award. Original, creative and innovative proposals in response to these problems include: the express legislative recognition of the manifestation of consent in both the verbal and written forms of the arbitration agreement, the use of the constructive dispute resolution technique, statutory recognition of customary law arbitration, the use of an expedited arbitration procedure, the award of exemplary and punitive damages in arbitration, a code of sanctions to facilitate the arbitration process, and a simplified method of enforcement and execution of the arbitral award. The dissertation concludes with reflections on the future of arbitration in Africa, and the need for modernization and harmonization of arbitration laws for peaceful resolution of disputes and serious conflicts across Africa. The aim of this study is best illustrated by a short story: In the early nineties there was a man, untrained in any known discipline, who strutted court corridors, trade centres and market places, carrying a placard advertising himself to lawyers, traders and marketers as “An Arbitrator and Private Judge”. He attracted business, charged a handsome percentage fee on the value of the claim, was duly paid, until officialdom caught up with him and put paid to his burgeoning career as “Arbitrator-Judge”. But the reckless enthusiasm spawned by his wit and imagination, and the idiosyncratic practices in dispute resolution persisted and are manifest in Kenyan arbitration culture today. The need to remove bad practices, avoidable impediments, and inefficiency in the arbitration culture of Kenya in order to make its procedures and processes more efficacious, is the heart of this study.
AFRIKAANSE OPSOMMING: Arbitrasie as ‘n wyse van geskilbeslegting is wêreldwyd aan die toeneem. Die 1985 UNCITRAL Modelwetgewing insake Internasionale Kommersiële Arbitrasie het die momentum hiervoor gebied. Talle lande het vervolgens gereageer deur wetgewing geskoei op hierdie model te promulgeer. Die arbitrasiereg van drie lande, tewete Kenia, Nigerië en Zimbabwe, is vir doeleindes van hierdie proefskrif gekies op die basis van gemeenskaplike geskiedenis, soortgelyke wetgewing, soortgelyke probleme, gedeelde ervaringe en regionale verspreiding. Aangesien die skrywer se arbitrasie-praktyk in Kenia gebaseer is, word hierdie jurisdiksie as die primêre, alhoewel nie die enigste, bron en basis vir die navorsing gebruik. Die werk beslaan drie hoofstukke. Hoofstuk een verskaf ‘n kort inleiding tot en oorsig van die reg rakende arbitrasie. Dit word gevolg deur die navorsingsvraag, die rasionaal vir die navorsing, metodiek en die struktuur en inhoud van die proefskrif. Hoofstuk twee bied die regs- en kontekstuele raamwerk vir die ondersoek in die gekose jurisdiksies, nl. Kenia, Nigerië en Zimbabwe. ‘n Bespreking van gewoonteregtelike arbitrasie word ingesluit, aangesien dit ‘n belangrike deel van Arbitrasiereg in Afrika uitmaak. Die UNCITRAL Modelwetgewing, die Wet op Arbitrasie 1995 (Kenia), die Wet op Abitrasie en Konsiliasie 1988 (Nigerië), die Wet op Arbitrasie 1996 (Zimbabwe), die Wet op Arbitrasie 1996 (Engeland) en die Suid-Afrikaanse Konsepwet op Arbitrasie word gebruik as die statutêre basis vir die bespreking van die navorsingsvrae. Hoofstuk 3 handel met die hooffokus van die proefskrif. Ses probleme wat telkemale opduik in die konteks van plaaslike arbitrasies in Kenia, en wat as die navorsingsvrae geïdentifiseer is, word vervolgens bespreek. Hierdie probleme is (i) die ontwykendheid van toestemming as basis vir arbitrasie deur ooreenkoms; (ii) jurisdiksionêre uitdagings; (iii) die proseduele magte van ‘n arbitrasie tribunaal; (iv) die onderbrekende effek van verdagings en uitstelle van arbitrasie-verhore; (v) beperkinge op die verlening van tussentydse regshulp, en (vi) afdwinging en uitvoering van die arbitrasie-toekenning. Oorspronklike, kreatiewe en innoverende voorstelle as antwoord op hierdie probleme sluit in: die uitdruklike statutêre erkenning van toestemming tot arbitrasie in beide mondelinge en geskrewe vorms; die gebruik van konstruktiewe dispuutoplossingstegnieke; statutêre erkenning van gewoonteregtelike arbitrasies; die gebruik van ‘n versnelde arbitrasie-prosedure; die verlening van skadevergoeding in die vorm van ‘n strafbedrag; ‘n kode van sanksies om die arbitrasie proses te fasiliteer; en ‘n vereenvoudigde wyse waarop arbitrasie-toekennings afgedwing en uitgevoer kan word. Die proefskrif sluit af deur die toekoms van arbitrasie in Afrika te bespreek, asook die behoefte aan modernisering en harmonisering van arbitrasiereg ten einde geskille dwarsoor Afrika op ‘n vreedsame wyse te kan besleg.
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Shiu, Lawrence Mateo. "Can arbitration resolve disputes arising from online activity? online auctions and other related activities /". access abstract and table of contents access full-text, 2008. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b23454325a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2008."Submitted to School of Law in partial fulfillment of the requirements for the degree of Master of Arts." Title from PDF t.p. (viewed on June 1, 2009) Includes bibliographical references.
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Ho, Dik Hong Duncan. "The practice and effectiveness of international dispute resolution platforms in the protection of intellectual property rights". access full-text access abstract and table of contents, 2007. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22013696a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2007.Title from PDF t.p. (viewed on Sept. 7, 2007) "A dissertation submitted in conformity with the requirements for the degree of Master of Arts in arbitration and dispute resolution." Includes bibliographical references.
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Moin, Donya. "Toward an appropriate dispute settlement method for resolving petroleum expropriation disputes : treaty-based arbitration or mediation?" Thesis, University of Aberdeen, 2017. http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=236001.
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The settlement of petroleum expropriation disputes has been a challenging issue in the petroleum industry since the earliest cases. The issue, principally, relates to foreign investors' right to investment protection and the sovereign right of states, the clash of which causes such disputes. Striking a balance between these conflicting rights in order to save the disputants' relationship is a critical concern given the interdependent relationship of disputants which manifests itself in a cyclical manner. This in turn highlights the importance of finding a suitable dispute resolution method to reach the most appropriate and balanced resolution from both parties' viewpoint. Impartiality is, in this context, a key element when determining the most suitable method for resolving expropriation disputes. This is so considering that the reason for the abandonment of diplomatic protection and litigation as methods for resolving expropriation disputes was concerns over their partiality towards one of the disputants. Currently, with the proliferation of investment treaties, treaty-based arbitration has become the most popular method for resolving such disputes. However, the suitability of treaty-based arbitration is criticised as a process which is likely to be partial in favour of investors and their investment protection rights. Such a partiality is likely to be found in treaty-based arbitration's origin, substance and procedural aspects. Therefore, it can be argued that there is room for mediation as an alternative dispute resolution method to be adopted and supplemented arbitration for settlement of petroleum expropriation disputes. In fact, mediation enjoys various qualities which makes it especially attractive for such disputes, including its time and cost efficiency, its ability to explore win-win settlement options and to save the disputing parties' relationship, and the flexibility and collaborative nature of the process. More importantly, its self-determination principle is a feature which guarantees the impartiality of mediation. However, mediation, like other dispute resolution methods, is not without its disadvantages. It faces challenges with regard to its voluntary and non-binding nature, confidentiality, its inability to deal with the political overtones of petroleum expropriation disputes, its retarding effect on jurisprudence development and disputants' lack of familiarity with the process. Nonetheless, having proposed some solutions to these shortcomings, this thesis concludes that mediation should be used and encouraged more systematically for resolving petroleum expropriation disputes.
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Lo, Anthony Po-wing. "Whether and in what manner the due process of law principles should be applied to the Arena of ADR". access abstract and table of contents access full-text, 2003. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b18508492a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2003.Title from title screen (viewed on June 2004) Submitted for Master of Arts in arbitration & alternative dispute resolution. Includes bibliographical references.
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Musukubili, Felix Zingolo. "Towards an efficient Namibian labour dispute resolution system : compliance with international labour standards and a comparison with the South African system". Thesis, Nelson Mandela Metropolitan University, 2013. http://hdl.handle.net/10948/d1018942.
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The thesis examines the Namibian labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. It describes the legal provisions that exist for the effective and efficient resolution of labour disputes through an alternative dispute resolution (ADR) system, which is given recognition in national labour legislation, and in a number of international labour standards and regional labour instruments. It argues for the provision of a proactive and expeditious dispute resolution system that helps to resolve labour disputes in the most effective and efficient manner, without necessarily having to resort to the courts. The study examines the provisions of relevant international labour standards on labour dispute resolution to ascertain their adequacy as part frameworks that apply to Namibia and South Africa’s obligation to provide ADR systems that respond to the needs of the labour relations community. It is argued that ratifying particular ILO conventions creates obligations to comply with their provisions, and to apply them in national legislation and in practice. It is further argued that by having ratified those international labour standards that provide for ADR, Namibia assumes specific obligations under international law, enjoining the country to provide the required ADR system of conciliation and arbitration, which is credible and trusted by disputants and the general public. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The focus of the comparison is on whether the South African ADR system can inform Namibia’s application of its newly adopted ADR system. South Africa has a labour dispute resolution system that has influenced Namibian labour law, prompting Namibia to borrow its ADR system from South Africa’s advanced Commission for Conciliation Mediation and Arbitration (CCMA). In this sense, it is submitted that there are fundamental similarities and differences in the two respective systems. Ideally, disputes should be resolved at conciliation level, resulting in the minority of disputes being referred to arbitration or the Labour Court. In terms of implementation, it is argued that despite the international obligation and commitment to provide and make available free and expeditious ADR services, there are gaps that exist between the legal framework regulating the ADR system and the application thereof in practice, making the attainment of effective and efficient labour dispute resolution difficult. Disputes should be resolved as quickly and informally as possible, with little or no procedural technicalities, and without allowing them to drag on indefinitely, offering immediate solutions instead. This is far from the reality of the situation. In contrast, the study found that although the Labour Act, 2007 and the South African Labour Relations Act (LRA) have brought statutory dispute resolution within the reach of the ordinary worker, these Acts may have compounded the problems relating to dispute resolution in the respective countries. The statutes in question have created sophisticated systems of dispute resolution in which most role players are seen as failing to operate as a result of the complex and technical processes of dealing with disputes. For this reason, the author proposes several remedial interventions that look to the future and the continued provision of fast, effective and user-friendly ADR services. Solving these problems and making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
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Yeung, Jackson Kit Shing. "Can arbitration & ADR be practically adopted in resolving disputes for oil & gas trading in mainland China?" access abstract and table of contents access full-text, 2005. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b20835917a.pdf.
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Al, Hamed Mohammed A. A. "Electronic arbitration as a solution for electronic commerce dispute resolution in the United Arab Emirates : obstacles and enforceability challenges". Thesis, University of Gloucestershire, 2016. http://eprints.glos.ac.uk/4353/.
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This thesis first examines the legislative framework in the UAE and its key guiding principles from which arbitration laws are derived. Secondly, based on the above examination of the existing legislative framework and literature the study identifies the various aspects of the existing legislative framework that impact upon the enforceability of e-arbitration for ecommerce dispute resolution in the UAE. Finally, the thesis demonstrates how e-arbitration can be incorporated into e-commerce and arbitration procedures in the UAE. Two methodologies, namely ‘explorative qualitative research method’ and ‘semi-structure interview’ are employed for the study. The findings from the examination of legislative framework and literature as well as the empirical field study show that the unprecedented developments in Information Communications Technology (ICT) had influenced and altered the traditional methods of societal interaction globally. The mass adoption of the Internet platform for trading has not only sought to eliminate the physical distance between the businesses and consumers but presented new avenues for potentially higher sales, coverage, lower costs and all at high speed. The concept of electronic trading (E-Trade) has naturally developed new markets and opportunities, which nations within the Gulf Cooperation Council (GCC) such as the UAE are seeking to capture. The findings also show that electronic arbitration (E-Arb) is eliminating the physical barriers between businesses, consumers and others choosing to arbitrate in cyberspace. This implies that E-Arb is perceived to be an additional component and extension of the growing ECommerce market and services. Therefore, adopting and supporting E-Arb provides an ideal opportunity for the UAE as a global hub for commercial purposes. However, despite the enthusiasm for the greater utilisation of ICT in UAE society, the domestic legalisation do not fully recognise the distinctive feature of e-arbitration, which makes it difficult to link them with international laws. The study also identifies concerns with the impact of E-Arb upon the traditional heritage and cultural practices in the UAE. Therefore, the study recommends that the existing UAE legislative framework is made compatible with international laws. It also recommends that there are comprehensive education and research programs in place to transform the traditional and cultural nuances of UAE society towards a greater understanding of developments in modern technology.
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Shortall-Page, Lisa Claire. "Towards a modern role for the tort system in environmental law : can alternative dispute resolution processes improve access to environmental justice in the tort system?" Thesis, University of Birmingham, 1999. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.368650.
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Gathongo, Johana Kambo. "Labour dispute resolution in Kenya: compliance with international standards and a comparison with South Africa". Thesis, Nelson Mandela Metropolitan University, 2018. http://hdl.handle.net/10948/23980.
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The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.
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Pang, Oi Ling Irene. "Dispute resolution for construction contracts adopting the 1999 general conditions of contract of the HKSAR deficiencies in the GCC /". access abstract and table of contents access full-text, 2006. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b21847691a.pdf.
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Wong, Wai Chiu. "Investment of advanced technologies in China the roles of ADR institutions and Chinese courts in conflicts resolution and awards enforcement /". access abstract and table of contents access full-text, 2007. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b22052409a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2007.Title from PDF t.p. (viewed on Sept. 7, 2007) "Master of Arts in arbitration and dispute resolution research dissertation" Includes bibliographical references.
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Malamis, Daniel Scott Christos. "The justice of Dikê on the forms and significance of dispute settlement by arbitration in the Iliad". Thesis, Rhodes University, 2011. http://hdl.handle.net/10962/d1002162.
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This thesis explores the forms and significance of dispute settlement by arbitration, or ‘δίκη’, in the Iliad. I take as my focus the ‘storm simile’ of Iliad XVI: 384-393, which describes Zeus’ theodical reaction to corruption within the δίκη-court, and the ‘shield trial’ of Iliad XVIII: 498-508, which presents a detailed picture of such a court in action, and compare the forms and conception of arbitration that emerge from these two ecphrastic passages with those found in the narrative body of the poem. Analysing the terminology and procedures associated with dispute settlement in the Iliad, I explore the evidence for the development of an ‘ideology of δίκη’, that valorises arbitrated settlement as a solution to conflict, and that identifies δίκη as a procedure and a civic institution with an objective standard of fairness: the foundation of a civic concept of ‘justice’. I argue that this ideology is fully articulated in the storm simile and the shield trial, as well as Hesiod’s Works and Days, but that it is also detectable in the narrative body of the Iliad. I further argue that the poet of the Iliad employs references to this ideology, through the narrative media of speech and ecphrasis, to prompt and direct his audience’s evaluation of the nature and outcome of the poem’s central conflict: the dispute of Achilles and Agamemnon.
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孫子恒 i Chee-hang Henry Suen. "A selection model of dispute resolution systems for construction professionals". Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 2000. http://hub.hku.hk/bib/B31251717.
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Sánchez-Arriaga, Alejandro. "Dispute settlement understanding of the WTO : implications for developing countries". Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=81233.
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In 1995 the WTO began functioning as an institution that aims at reducing the trade barriers between countries. The Dispute Settlement Understanding (DSU) is one of the numerous agreements that bind the WTO Members. The agreement embodies a mechanism to solve disputes which presents many obstacles to Developing Countries. This thesis seeks to shed light on the difficulties that Developing Countries commonly face when attempting to put forward a trade complaint. Taking into account the factors that cause the problematic situation, proposals for improvement are also given. Special attention is paid to the current negotiations to reform the DSU in the context of the Doha Round.
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Li, Hon-ling Regina. "China's new company law : a study of its impact on foreign investment /". Hong Kong : University of Hong Kong, 1996. http://sunzi.lib.hku.hk/hkuto/record.jsp?B17982182.
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Allie, Shouket. "Exploring the concept of conciliation (ṣulḥ) as a method of alternative dispute resolution in Islamic law". University of the Western Cape, 2020. http://hdl.handle.net/11394/7632.
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Magister Legum - LLMThis research will chart and navigate the early stages in the development, conceptualisation, and formulation of Islāmic law and the concept of ṣulḥ as a mechanism of legal redress in Islāmic law (Sharī’a). The research shows that firstly, the mechanism is deeply rooted and embedded in scriptural (Qur’ānic) and extrascriptural text namely the corpus of Ḥadīth. There is a plethora of instructions to prove that reconciliation is indeed a lofty goal which is rewarded as an act of worship. Like many other aspects of the Sharī’a, ṣulḥ is regulated by provisions of the scripture and extra-scriptural sources considered by Muslims as the (Sharī’a). Secondly ṣulḥ is also the preferred method of alternative dispute resolution because it is fluid, contractual, expeditious and one of the most effective ways of solving different types of disputes, whether commercial or family. It has therefore gained considerable traction in modern western financial industry which I think is largely due to its contractual nature and the absence of the adversarial element. As a mechanism of redress, ṣulḥ is governed by Islāmic law of contract which takes the form of an agreement which can be mutually negotiated between two or more parties. Of late it has also become the mechanism of choice in family and marital disputes.
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Hussain, Anwaar. "Status of non-governmental entities and dispute settlement mechanism of the WTO : an analysis with special reference to amicus brief controversy". Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=80930.
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A central feature of the World Trade Organization (WTO) is its Dispute Settlement Mechanism (DSM). Access to the DSM is presently limited to member governments; other entities such as NGOs are not eligible to be WTO Members and, consequently, are denied formal participation in the dispute settlement process. However, non-governmental entities have been afforded a limited opportunity to express their views through the submission of amicus briefs in dispute settlement proceedings. There are concerns, in particular on the part of Developing Countries, over the Appellate Body's authority to confer such a role to these entities. This paper aims to analyze the issues surrounding the status of non-governmental entities at the WTO level with respect to the DSM, how its Appellate Body is interpreting the law of the WTO, and how far the criticism of Developing Countries towards the Appellate Body's interpretation of WTO law is justified.
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Nweke, Chuks Petrus. "A Case Study Investigating the Interpretation and Implementation of the Transformative Mediation Technique". ScholarWorks, 2011. https://scholarworks.waldenu.edu/dissertations/959.
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For decades, unresolved conflicts have negatively influenced the general public through increased violence, overwhelming the judicial system. A literature review suggested that between 15% and 20% of conflicts result in an impasse. This study was designed to understand how the implementation and application of the transformative meditation technique (TMT) is used to resolve conflicts. The purpose of this qualitative case study was to investigate the interpretation and implementation of TMT. This qualitative case study was grounded in the conceptual framework of interest-based negotiation (IBN) principles. The research questions focused on mediators' perceptions, interpretations, and depth of knowledge, as well as the effectiveness of the transformative mediation technique (TMT) as an improvement over evaluative or facilitative techniques in resolving conflicts and reducing impasses. Twenty face-to-face interviews were conducted with purposefully selected mediators. Data were coded and analyzed to identify recurring themes: interests, needs, responsibility, relationship, empowerment, problem solving, and negotiation. The findings of the data analysis revealed that mediators were familiar with TMT; interpretation and implementation varied with mediator style. Moreover, most mediators were not highly educated in TMT. In addition, it was found that simply having knowledge of TMT did not prepare mediators to apply the technique appropriately. Mediators were more attracted to the hybrid transformative mediation technique (HTMT). This study has the potential to create positive social change by reducing the number of litigations, giving relief to the overburdened justice system, and thus decreasing the use of limited courts resources.
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Tse, Lai Yee Lily. "WTO dispute settlement mechanism implementation issues and the way forward /". access abstract and table of contents access full-text, 2008. http://libweb.cityu.edu.hk/cgi-bin/ezdb/dissert.pl?ma-slw-b23454386a.pdf.
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Thesis (M.A.)--City University of Hong Kong, 2008."The School of Law, City University of Hong Kong, dissertation." "Programme: MAADR, LW6409A" Title from PDF t.p. (viewed on June 1, 2009) Includes bibliographical references.
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Macionytė, Daiva. "Tarptautinių privatinių ginčų sprendimas arbitraže. Privalumai ir trūkumai". Master's thesis, Lithuanian Academic Libraries Network (LABT), 2006. http://vddb.library.lt/obj/LT-eLABa-0001:E.02~2006~D_20061212_122938-91473.
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This master of Thesis presents advantages and disadvantages of resolving international private disputes in arbitration. Arbitration is a modern method of dealing with disputes, it is one of the form of alternative dispute resolution. International arbitration provides the parties to a dispute with the opportunite to obtain a decision from a judge or judges of their own choice. Arbitration obviates a public hearing in open court by judge.
Lithuania has made significant steps towards a free market economy in past decade. Therefore there was an intensive development in the area of international commercial contracts. Furthermore the growing number of commercial disputes arose and development on international commercial arbitration laws was in the great need. Nevertheles the practice of local courts and recources of doctrine are very poor, that‘s the main motive to investigate advantages and disatvantages of resolving disputes in arbitration in this thesis.
Dispute resolving in arbitration has more advantages than disatvantages. It is an effective and convenient technique of resoving international privatel disputes. Arbitration offers advantages over litigation as a way of enabling disputes to be resolved relatively quickly and simply without the need to go to court.
The thesis is made of four parts. The first part presents international arbitration and procedure of international disputes resolution in arbitration. The second part analizes differences between arbitration and... [to full text]
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李翰玲 i Hon-ling Regina Li. "China's new company law: a study of its impact on foreign investment". Thesis, The University of Hong Kong (Pokfulam, Hong Kong), 1996. http://hub.hku.hk/bib/B31267506.
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Hurtado, Falvy Juan Manuel. "From the Decision Conciliation to the Dispute Resolution Board: Notes in relation to the Dispute Resolution Board as a New Method of Conflict Resolution for a Formalized Work Contract Under the scope of the New Public Procurement Law". Derecho & Sociedad, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/117996.
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The new Public Procurement Law introduces the Dispute Boards as a new settlement ofdisputes and contestations during the contractual execution of the work phase. The present article works, in the first place, the framework of public procurement and the controversies that are originated in the matter. Then, it will expose the development of the Dispute Boards in other countried and their characteristics. Finally, it concludes identifying the type of Dispute Boards that is being adopted in Peruvian law, showing his vantages and disadvantages.La nueva Ley de Contrataciones del Estado, Ley N° 30225, incorpora la Junta de Resolución de Disputas, como un nuevo mecanismo de resolución de conflictos durante la fase de ejecución contractual de obras.En el artículo se desarrolla, en primer lugar, el marco de las contrataciones del Estado y las controversias que se originan en el mismo. Posteriormente, se expone el desarrollo de los Dispute Boards internacionalmente y sus características, y se concluye identificando el tipo de Dispute Boards adoptado en la legislación peruana, exponiendo sus fortalezas y debilidades.
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Magalhães, Júnior Danilo Brum de. "Arbitragem e direito concorrencial: a arbitragem como método para a resolução de disputas privadas que envolvam matéria concorrencial no direito brasileiro". Universidade do Vale do Rio dos Sinos, 2018. http://www.repositorio.jesuita.org.br/handle/UNISINOS/7344.
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A presente dissertação tem como objetivo geral a investigação da adequação da arbitragem como método para a resolução de disputas privadas que envolvam matéria concorrencial, tendo como pano de fundo a legislação brasileira. Isto porque, apesar das normas de Direito concorrencial serem imperativas, terem caráter eminentemente público e serem comumente associadas à noção de ordem pública, controvérsias envolvendo Direito concorrencial podem se originar de relações jurídicas privadas, envolvendo Direitos patrimoniais disponíveis, aptas a serem resolvidas pela arbitragem. Neste contexto, de forma mais específica, buscou-se na presente dissertação: (a) analisar o que a legislação e a doutrina dizem sobre o instituto da arbitragem e sobre o Direito concorrencial; (b) analisar a possibilidade jurídica da utilização do procedimento arbitral (arbitrabilidade) como alternativa para resolução de conflitos privados que envolvam matéria concorrencial no Brasil; (c) analisar a possibilidade de aplicação das normas de Direito concorrencial brasileira pelos árbitros; e (d) investigar as situações em que a arbitragem pode ser utilizada para solucionar disputas privadas que envolvam matéria concorrencial no Direito brasileiro. Como conclusão, defende-se que, dentro de certos requisitos abordados no trabalho, a arbitragem é um instrumento juridicamente adequado para resolução de disputas privadas que envolvam matéria concorrencial, tendo o árbitro um dever de aplicar o Direito Concorrencial na sua integralidade, ou seja, dentro da sistemática da Lei 12.529/11. Ademais, será defendido que, de modo geral, procedimentos arbitrais envolvendo matéria concorrencial se inserem em um contexto de private enforcement do Direito Concorrencial, embora haja excepcionalmente um apertado espaço para utilização no public enforcement, o que vem sendo incentivado pelo CADE em casos recentes. Dentro deste contexto, a esfera de competência do árbitro seria adstrita à determinação de consequências civis relevantes para aplicação do direito concorrencial, o que não se confunde com a atuação administrativa do CADE na proteção da concorrência como direito difuso.
The purpose of this dissertation is to investigate the adequacy of arbitration as a method for resolving private disputes involving antitrust law, based on Brazilian Law. This is because, despite Brazilian antitrust law having mandatory rules, being eminently of a public policy (ordre publique) nature, controversies involving competitive law disputes involving competition law may originate from private legal relationships, involving available and patrimonial rights, apt to be resolved by arbitration. In this context, in a more specific way, we sought in this dissertation: (a) to analyze what the legislation and the doctrine say about the institute of the arbitration and on the Competition Law; (b) to analyze the legal possibility of using the arbitration procedure (arbitrability) as an alternative method for resolving private disputes involving antitrust law in Brazil; (c) analyze the possibility of applying the Brazilian antitrust rules by the arbitrators; and (d) investigate situations which the arbitration should be used to resolve private disputes involving antitrust matters according to Brazilian law. As a conclusion, it is argued that, under certain circumstances, arbitration is a legally adequate instrument for resolving private disputes involving antitrust matters, having the arbitrator a duty to apply the Antitrust Law in its entirety, according to the framework of Law 12.529/11. In general, arbitration proceedings involving antitrust matters fall within a context of private enforcement of antitrust law, although there is a limited space for use in public enforcement, which has been encouraged by CADE in recent cases. Therefore, the jurisdiction of the arbitrator would be determined by the determination of civil consequences relevant to the application of the antitrust law, which should not be confused with CADE's administrative performance in the protection of competition as a diffuse right.
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Schütz, Jürg Gian. "Mediation und Schiedsgerichtsbarkeit in der Schweizerischen Zivilprozessordnung : eine Untersuchung zur Streitbehandlungslehre: Verfahrensvergleich und -auswahl anhand gesetzlich geregelter Alternativen zum staatlichen Zivilprozess--Mediation, Schiedsgerichtsbarkeit und deren Hybridisierung /". Bern Stämpfli, 2009. http://deposit.d-nb.de/cgi-bin/dokserv?id=3407542&prov=M&dok_var=1&dok_ext=htm.
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Diakite, Ansoumane Douty. "Settlement of international investment disputes by arbitrationp: an analysis of the challenge of inconsistency in the outcomes of investment arbitrations between investors and states and the available remedies". Thesis, University of Macau, 2008. http://umaclib3.umac.mo/record=b1943651.
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Mendonça, Priscila Faricelli de. "Transação e arbitragem nas controvérsias tributárias". Universidade de São Paulo, 2013. http://www.teses.usp.br/teses/disponiveis/2/2137/tde-12022014-135619/.
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O objetivo da presente dissertação de mestrado foi o de, a partir de uma análise fática das discussões judiciais travadas entre fisco e contribuinte para solução de controvérsias tributárias, constatar a ineficiência do sistema atualmente posto à disposição dos sujeitos envolvidos em tais relações e buscar soluções processualmente viáveis, com foco em mecanismos consensuais (transação) ou adjudicatórios de base consensual (arbitragem). Para tanto, partiu-se de uma análise do atual cenário dos litígios judiciais envolvendo fiscos e contribuintes, concluindo-se pela incapacidade do sistema a proporcionar soluções satisfatórias e tratamento adequado ao conflito (Parte I, Capítulo 1). Diante da realidade fática enfrentada, o problema é proposto para soluções de controvérsias tributárias, frente ao regime de indisponibilidade do crédito tributário. Na nova moldura das relações que envolvem o Estado, tendo em vista que não se afasta disponibilidade do crédito tributário desde que se dê nos termos da lei (Parte I, Capítulo 2), passou-se a uma análise dos meios atualmente postos à disposição dos fiscos e contribuintes para solução das controvérsias tributárias, vislumbrando-se, ao final, pela viabilidade de adoção de meios alternativos para solução de tais controvérsias (Parte I, Capítulo 3). A segunda parte do estudo é voltada à análise da arbitragem tributária, partindo da arbitrabilidade do crédito tributário (Parte II, Capítulo 1) até os requisitos formais e processuais para adoção de tal método privado e de base consensual para solução de conflitos tributários. Feitas as premissas necessárias, tratou-se dos aspectos processuais da arbitragem tributária, sempre os vinculando à estrita legalidade que permeia tais relações e será premissa de validade do procedimento que se cogita (Parte II, Capítulo 2). Finalmente, na terceira parte é feita a avaliação acerca da transigibilidade das controvérsias tributárias (Parte III, Capítulo 1) para, após, verificar os aspectos processuais da transação tributária, sempre com vistas à legalidade, tipicidade cerrada e limites impostos pela Lei de Responsabilidade Fiscal.This dissertation aims at looking for feasible solutions from a procedural standpoint, based on a factual analysis of tax judicial lawsuits between the taxpayers and the Government that verified the inefficiency of the system currently made available to the parties involved in the said disputes, focused on the possibility of adopting the arbitration and transaction. Initially, it is discussed the current scenario of the judicial tax litigation, which resulted in the conclusion of the inability of the system to provide satisfactory solutions and appropriate treatment to the relevant conflicts (Part I, Chapter 1). Given such scenario, the proposed problem is how to use consensual mechanisms (transaction) or adjudicatory-based consensus procedures (arbitration) to resolve tax controversies, vis a vis the regime of unavailability of the tax credit. In the new framework of relations involving the States, which allows the availability of the tax credit strictly under the law (Part I, Chapter 2), it is analyzed the ways currently available to the tax authorities and taxpayers for the resolution of tax controversies and it is concluded for the feasibility of adopting alternative dispute resolution (ADR) methods (Part I, Chapter 3), in addition to the adjudicative resolution of the conflicts. Then, the second part of the study is focused on the analysis of tax arbitration, moving from the arbitrability of the tax credit (Part II, Chapter 1) to the substantive and procedural requirements for adopting such a method private and consensual-based for resolving tax disputes. As the necessary premises were confirmed, it is analyzed the procedural aspects of tax arbitration, always linking them to the strict legality that permeates tax matters and will utmost validate the arbitration for tax matters (Part II, Chapter 2). Finally, the third part is an evaluation about the possibility of tax transaction (Part III, Chapter 1); after that, it is analyzed the procedural aspects of the transaction for tax purposes, always under the strict legality and the limits imposed by the Fiscal Responsibility Law (Part III, Chapter 2).
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Arrassen, Nounja. "Réflexions sur le droit applicable aux investissements étrangers au Maroc". Thesis, Paris 9, 2012. http://www.theses.fr/2012PA090059.
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Pour assurer une croissance économique durable, le Maroc mobilise diverses sources de financement telles que les investissements directs étrangers. Parmi les déterminants de ceux-ci, il y a la stabilité politique, dont le Maroc est un modèle, mais aussi, l’existence d’un corpus de normes, facilitant leur réalisation. Par ces facilités, il s’agit d’instaurer une véritable politique d’attractivité. A cet effet, différents instruments juridiques, tantôt restrictifs, tantôt libéraux, ont été adoptés depuis l’indépendance, selon la méfiance, légitime, que peuvent, en certaines circonstances, susciter les capitaux étrangers. Ces instruments, qui constituent en définitive le droit marocain des investissements étrangers, vont des dispositions de droit commun, aux dispositions spéciales, en passant par les instruments conventionnels multilatéraux et bilatéraux. Cette étude, sans épuiser le sujet, réalise une présentation dynamique de ces instruments en deux axes. Le premier appréhende la richesse du dispositif normatif de l’accueil de l’investissement étranger ; le second met en articulation les moyens d’une sortie, qu’elle soit contentieuse ou nonTo ensure sustainable economic growth, Morocco mobilizes various funding resources such as foreign direct investments. Among the determinants of these), there is political stability, of which Morocco is a model, but also the existence of legal standards making their realization easier. By these facilities, is real policy of attractiveness is aimed. For that purpose, various legal instruments, sometimes restrictive, sometimes liberal, have been adopted since the independence, according to legitimate concerns that foreign capital may raise in certain circumstances. These instruments, which ultimately constitute the Moroccan foreign investment lax, vary from general and special provisions to multilateral and bilateral conventional instruments. This study, without exhausting the subject, makes a dynamic presentation of these instruments regarding two main dimensions of an investment process: entry and exit. The first captures the richness of the normative framework related to foreign investments’ reception, whereas the second highlights in case of their exit, either contentious or not
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Webb, Brandon. "Legal representation at internal disciplinary enquiries: the CCMA and bargaining councils". Thesis, Nelson Mandela Metropolitan University, 2015. http://hdl.handle.net/10948/d1021066.
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The right to legal representation at internal disciplinary hearings and arbitration proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA), and bargaining councils, where the reason for dismissal relates to misconduct or incapacity is a topic that is raised continuously and often debated. Despite no amendments to labour legislation pertaining to the issue at hand there was however a recent Supreme Court of Appeal judgment. This judgment alters one’s view and clarifies the uncertainties that were created around Rule 25 of the CCMA rules, it also brings a different perspective to the matter, but it will however continue to ignite significant interest. There is no automatic right to legal representation at disciplinary hearings, at the CCMA, and at bargaining councils where disputes involve conduct or capacity and this is the very reason why it is a contentious matter for all parties to grapple with. The dismissal of an employee for misconduct may not be significant to the employer, but the employee’s job is his major asset, and losing his employment is a serious matter to contend with. Lawyers are said to make the process legalistic and expensive, and are blamed for causing delays in the proceedings due to their unavailability and the approach that they adopt. Allowing legal representation places individual employees and small businesses on the back foot because of the costs. Section 23(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, provides everyone with the right to fair labour practices, and section 185 of the Labour Relations Act 66 of 1995 gives effect to this right and specifies, amongst others, that an employee has the right not to be unfairly dismissed. At internal disciplinary hearings, the Labour Relations Act 66 of 1995 is silent as to what the employee’s rights are with regards to legal representation and the general rule is that legal representation is not permitted, unless the employer’s disciplinary code and procedure or the employee’s contract allows for it, but usually an employee may only be represented by a fellow employee or trade union representative, but not by a legal representative. In MEC: Department of Finance, Economic Affairs and Tourism, Northern Province v Mahumani, the Supreme Court of Appeal held that there exists no right in terms of the common law to legal representation in tribunals other than in courts of law. However, both the common law and PAJA concede that in certain situations it may be unfair to deny a party legal representation. Currently the position in South Africa is that an employee facing disciplinary proceedings can put forward a request for legal representation and the chairperson of the disciplinary hearing will have the discretion to allow or refuse the request. In Hamata v Chairperson, Peninsula Technikon Internal Disciplinary Committee, the Supreme Court of Appeal found that the South African law does not recognise an absolute right to legal representation in fora other than courts of law, and a constitutional right to legal representation only arises in respect of criminal matters.
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Buchner, Jacques Johan. "The constitutional right to legal representation during disciplinary hearings and proceedings before the CCMA". Thesis, University of Port Elizabeth, 2003. http://hdl.handle.net/10948/294.
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The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.
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Eslar, Karine Aparecida de Oliveira Dias. "A ARBITRAGEM COMO MEIO DE SOLUÇÃO DE CONFLITOS NO ÂMBITO DO MERCOSUL". Pontifícia Universidade Católica de Goiás, 2013. http://localhost:8080/tede/handle/tede/2659.
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Previous issue date: 2013-02-08Born within the international commercial law, arbitration has developed and spread as an alternative for the resolution of disputes with establishment of the Organization of American States - OAS, which represented the first effort of peaceful conflict resolution in Southern Hemisphere.The development of this way of conflict resolution isless bureaucratic and its legal contours in Mercosul came from the Brasilia Protocol, which provided that it would develop as a provisional means of conflict resolution.But it was with the enactment of Law 9.307 of 23 of September of 1996 that the procedure mentioned started to be held in the Brazilian territory. However, from a provisional methoddispute settlement in Mercosul, arbitration became definitive with the signing of the Protocol of OuroPreto, and later supplemented by the Protocols of Buenos Aires and Protocols of Olivos, but it still lacks an effective legislation more equitable for its goal, because for the States, the access to arbitral resolution is guaranteed, but not for the individuals of Mercosul, who are practically excluded from that access.
Nascida no seio do direito internacional comercial, a arbitragem se desenvolveu e se propagou como meio alternativo ao judicial para a resolução de controvérsias, permitindo, após a instituição da Organização dos Estados Americanos OEA, a qual representou o primeiro esforço de resolução pacífica de conflitos no sul do Continente Americano, o desenvolvimento deste meio heterocompositivo de solução de conflitos. Menos burocratizada, a arbitragem ganhou contornos legais no Mercosul a partir do Protocolo de Brasília, o qual proporcionou que a mesma se desenvolvesse como meio provisório de solução de conflitos.Todavia, com a edição da Lei 9.307 de 23 de setembro de 1996 que o crescimento vertiginoso da arbitragem se deu no território brasileiro consagrando-a como meio alternativo ao judicial. Contudo, de meio provisório de solução de controvérsias do Mercosul, a arbitragem passou a definitivo com a assinatura do Protocolo de Ouro Preto, sendo posteriormente complementado pelos Protocolos de Buenos Aires e pelo Protocolo de Olivos. Ainda hoje, porém, prescinde de uma legislação mais equânime para efetivação de seu objetivo de solucionar conflitos de forma equitativa, uma vez que aos Estados o acesso se dá de forma integral, enquanto que para os particulares do Mercosul, a acessibilidade de solução de litígios pelo sistema é excludente.
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Donley, John Mauck. "COOPERATIVE CONSTRUCTION IN SCHOOLS IN CALIFORNIA". DigitalCommons@CalPoly, 2014. https://digitalcommons.calpoly.edu/theses/1332.
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Cooperative Construction in Schools in California
John M. Donley
The construction industry has lost efficiency since 1964, while becoming increasingly more litigious. Schools in California can ill afford the time to allow the construction industry time to fully evolve. It may take years or decades to fully improve the efficiency of, and reduce the conflict within the construction industry.
At the same time, the construction industry has developed new processes to improve efficiency and reduce conflict. These processes are beginning to be broadly embraced by the industry. They all contain cooperative elements. Taken together they represent a new organizing principle for the construction industry, cooperative construction.
Also concurrently, a previously little-used provision of the California Education Code allows schools freedom to contract for school construction in nearly any reasonable contractual arrangement they see fit for their project and district needs. As a result, school districts in California have developed a new system of project delivery. They are borrowing from here and there and inventing new tools to make projects work for them. Again, cooperative elements at the hearts of the processes.
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Wiley, Ronald Brooks. "“To Gallop Together to War is Simple-- To Make Peace is Complex” Indigenous Informal Restorative Conflict Resolution Practices Among Kazakhs: An Ethnographic Case Study". Diss., NSUWorks, 2019. https://nsuworks.nova.edu/shss_dcar_etd/119.
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Advocates of restorative and transitional justice practice have long drawn from practices of indigenous peoples to form the basis for more sustainable, relational, participatory, community-based approaches to conflict resolution. With the resurgence in Kazakh nationalism since the Republic of Kazakhstan independence, repatriated diasporic Kazakhs, who through cultural survival in diaspora retain more of their ethno-cultural characteristics, influence a revival of Kazakh language and culture. The purpose of this study was to understand the indigenous informal restorative conflict resolution practices of the Kazakh people. The questions that drove this study were: What indigenous informal forms of dispute resolution have been in use among Kazakhs, as reflected in their folklore and proverbs; which have continued in use among diasporic semi-nomadic Kazakh populations; and, which, if any, are restorative in nature? This ethnographic multi-case study incorporates participant observation and semi-structured interviews of participants selected through snowball sampling from among diasporic Kazakhs in, or repatriated from, China. Kazakh folklore and proverb collections were examined for conflict resolution practices and values at the family and kinship levels. Key theories used to explore the topic include Post-Colonial Theory of Sub-Altern Agency, Essentialism Theory, Soviet Ethnos Theory, and Restoration of Trust Theory. This study expands the knowledge base regarding indigenous systems of conflict resolution and contributes to the ethnography of the Kazakh people. The existence of indigenous informal restorative Kazakh systems of conflict resolution can inform reassessment and reform of public policy as to alternatives to punitive criminal justice practices.
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Monnot, Maurice. "Les procédures extra-judiciaires de règlement des conflits en droit du travail". Thesis, Paris 2, 2017. http://www.theses.fr/2017PA020085.
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Le droit du travail s’est doté depuis longtemps d’instruments de règlement amiable des conflits individuels et collectifs du travail : la conciliation prud’homale et la médiation encas de harcèlement pour les premiers ; la conciliation, la médiation et l’arbitrage pour les seconds. Mais leur échec est largement constaté. Il faut dès lors réfléchir à une réforme des procédures existantes : le recours obligatoire des salariés et des syndicats à une procédure non-contraignante de médiation, l’instauration d’une période de paix sociale précédant la grève et la création d’un service administratif de règlement des conflits sont certaines des pistes explorées.Ces procédures doivent s’appuyer sur plusieurs garanties essentielles. Celui qui a la charge de la procédure doit être indépendant, ce qui interdit qu’il soit placé dans un rapport de subordination à l’égard de l’une des parties, impartial, ce qui exclut tout parti pris ou préjugé, et compétent, alliant la connaissance du droit du travail à la maîtrise des techniques de règlement amiable des différends. La procédure elle-même doit présenter des garanties tenant à la confidentialité des échanges et des documents communiqués, à une durée assez réduite pour préserver le droit à l’accès au juge des parties, et à un coût qui ne soit pas dissuasifLabor law aknowledges for a long time amicable settlement procedures of labor disputes: conciliation in labor courts and mediation in harassment cases for disputes between an employer and its employees ; conciliation, mediation and arbitration in case of strikes. All of them failed and their reform must be studied: compulsory mediation for employees and unions, mandatory industrial peace and the creation of a public service in charge of labor conflict resolution are some of the options explored. These procedures require to respect several essential guarantees. The person in charge of the procedure must be independant, impartial and competent in both labor law and dispute resolution. The procedure itself must guarantee the confidentiality of the discussion and the documents communicated, take place during a limited amount of time to preserve the right of access to a judge, and have a non-dissuasive cost