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1
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.
Повний текст джерелаАнотація:
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.
2
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.
Повний текст джерелаАнотація:
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.
3
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.
Повний текст джерелаАнотація:
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
4
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.
Повний текст джерелаАнотація:
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.
5
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.
Повний текст джерелаАнотація:
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.
6
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.
Повний текст джерелаАнотація:
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.
7
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.
Повний текст джерелаАнотація:
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.
8
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.
Повний текст джерелаАнотація:
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.
9
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.
Повний текст джерелаАнотація:
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.
10
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.
Повний текст джерелаАнотація:
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).
11
Meshel, Tamar. "Procedural Cross-Fertilization in International Commercial and Investment Arbitration: A Functional Approach." Journal of International Dispute Settlement 12, no. 4 (October 21, 2021): 585–616. http://dx.doi.org/10.1093/jnlids/idab024.
Повний текст джерелаАнотація:
Abstract This article examines the potential for beneficial procedural cross-fertilization between internationalcommercial and investment arbitration from a functional perspective. The article argues that botharbitration regimes share a ‘private’ dispute resolution function of resolving specific disputes, butonly investment arbitral tribunals also exercise a ‘public’ law-making function of developing the lawapplicable to the resolution of disputes. The article considers two recent procedural developmentsin international arbitration rulesjoinder of third parties and publication of arbitral awardsin thelight of these private and public functions. It argues that joinder, as an efficiency-enhancingmeasure, can lead to beneficial cross-fertilization between commercial and investment arbitrationbecause it reinforces the ‘private’ dispute resolution function shared by both regimes. In contrast,the default publication of arbitral awards, to the extent that it is intended to be systematic and createinformal precedent, is appropriate in investment but not in commercial arbitration because onlyinvestment arbitral tribunals exercise a ‘public’ law-making function that justifies and stands tobenefit from this practice. In this regard, the article rejects three rationales for default publication ofinternational commercial arbitral awards: improving consistency/predictability, enhancingtransparency and developing transnational commercial law. The article concludes that crossfertilizationbetween investment and commercial arbitration can be valuable so long as it concernstheir shared private dispute resolution function. However, attempting to develop internationalcommercial arbitral practice in the shadow of the public law-making function of investment arbitraltribunals may result in counterproductive practices and undermine the proper functioning ofinternational commercial arbitration as a whole.
12
Meshel, Tamar. "Procedural Cross-Fertilization in International Commercial and Investment Arbitration: A Functional Approach." Journal of International Dispute Settlement 12, no. 4 (October 21, 2021): 585–616. http://dx.doi.org/10.1093/jnlids/idab024.
Повний текст джерелаАнотація:
Abstract This article examines the potential for beneficial procedural cross-fertilization between internationalcommercial and investment arbitration from a functional perspective. The article argues that botharbitration regimes share a ‘private’ dispute resolution function of resolving specific disputes, butonly investment arbitral tribunals also exercise a ‘public’ law-making function of developing the lawapplicable to the resolution of disputes. The article considers two recent procedural developmentsin international arbitration rulesjoinder of third parties and publication of arbitral awardsin thelight of these private and public functions. It argues that joinder, as an efficiency-enhancingmeasure, can lead to beneficial cross-fertilization between commercial and investment arbitrationbecause it reinforces the ‘private’ dispute resolution function shared by both regimes. In contrast,the default publication of arbitral awards, to the extent that it is intended to be systematic and createinformal precedent, is appropriate in investment but not in commercial arbitration because onlyinvestment arbitral tribunals exercise a ‘public’ law-making function that justifies and stands tobenefit from this practice. In this regard, the article rejects three rationales for default publication ofinternational commercial arbitral awards: improving consistency/predictability, enhancingtransparency and developing transnational commercial law. The article concludes that crossfertilizationbetween investment and commercial arbitration can be valuable so long as it concernstheir shared private dispute resolution function. However, attempting to develop internationalcommercial arbitral practice in the shadow of the public law-making function of investment arbitraltribunals may result in counterproductive practices and undermine the proper functioning ofinternational commercial arbitration as a whole.
13
Astuti, Hesti Dwi. "KENDALA PENYELESAIAN SENGKETA KONSUMEN MELALUI BADAN PENYELESAIAN SENGKETA KONSUMEN (BPSK)." Jurnal Hukum Mimbar Justitia 1, no. 2 (October 11, 2017): 572. http://dx.doi.org/10.35194/jhmj.v1i2.41.
Повний текст джерелаАнотація:
Empowering costumers is a form of awareness on the specific characteristics in the world of costumers, the different interest among different parties which have various bargaining positions, has been given space in the field of costumer dispute settlement which is a good policy in empowering costumers. A special institution which has been appointed to resolve costumer disputes is the Costumer Dispute Settlement Agency (BPSK). Costumer Dispute Settlement Agency is an independent agency or institute, a public agency which has the duty and authority such as implementing the handling and settlement of disputes between costumers and businessmen. Based on the duties and authorities of BPSK, the costumer dispute settlement mechanisms should be registered to the nearest BPSK. The examination based on the request of the costumer is done just like proceedings in the General Court and the decision made by BPSK is final. However, during the implementation of their duties in settling costumer disputes, BPSK is facing some obstacles such as lack of technical guidance in regulating aspects related to procedural law, constrained by the human resources of BPSK members, the lack of understanding and awareness of costumers and also constrained by operating costs. Therefore, the improvement of the structure and legal culture needs to be done by socializing the costumer protection law to the public.Keywords : Costumer Dispute, Costumer Dispute Settlement Agency, Costumer Protection.
14
Tsuvina, Tetiana. "Realization of res judicata principle in civil proceedings: the experience of foreign countries." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 220–25. http://dx.doi.org/10.36695/2219-5521.1.2020.44.
Повний текст джерелаАнотація:
The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.
The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved.
It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties.
In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.
15
Wolfrum, Rüdiger. "The Normativity of Public International Law Reconsidered." Proceedings of the ASIL Annual Meeting 114 (2020): 33–37. http://dx.doi.org/10.1017/amp.2021.5.
Повний текст джерелаАнотація:
The Order of the International Court of Justice (ICJ) of January 23, 2020 on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) might form a preliminary starting point for this brief address. The Order confirms that public international law defines through international treaties, customary international law, and general principles legally binding commitments and rights of states. As a matter of consequence, based upon those norms, judgments, orders, and awards of international courts and tribunals are legally binding on the parties to the dispute in question to the extent the adjudicating body has jurisdiction.
16
Bansal, Sharad. "The Dampening Effect of Foreign Mandatory Laws." Asian International Arbitration Journal 14, Issue 2 (December 1, 2018): 165–79. http://dx.doi.org/10.54648/aiaj2018009.
Повний текст джерелаАнотація:
Party autonomy – a foundational facet of international arbitration – is often at loggerheads with public policy elements. A recurrent debate in international arbitration has been the extent of limits imposed by public policy on party autonomy. One aspect of this debate is when parties expressly opt for a law governing the merits of the dispute, can an arbitral tribunal derogate from such law and apply a mandatory rule which it finds to be relevant to the dispute? This issue has repercussions on the enforceability of arbitration agreements as well as arbitral awards where mandatory rules are involved. In this article, the author argues that arbitrators are bound to apply mandatory laws notwithstanding the fact that such a measure constitutes a departure from the lex contractus, since parties inherently lack the capacity to contract out of mandatory rules. To the extent that mandatory rules reflect public policy they now cast a limit to parties’ lex contractus.
17
Zhu, Weidong. "The Recognition and Enforcement of the Foreign Arbitral Awards with No Foreign Element in China." Journal of International Arbitration 32, Issue 3 (May 1, 2015): 351–59. http://dx.doi.org/10.54648/joia2015014.
Повний текст джерелаАнотація:
It is a hot topic in China in recent years among arbitration scholars and practitioners whether Chinese parties may submit their disputes with no foreign element to a foreign arbitral institution. The ruling made by the No. 2 Intermediate People's Court of Beijing on 20 January 2014 refusing the recognition and enforcement of an arbitration award made by the Korean Commercial Arbitration Board raised public concern over the issue again. This is the first arbitration award made by the Korean Commercial Arbitration Board denied recognition and enforcement in China and also the first foreign arbitration award denied recognition and enforcement in China on the basis of the fact that the Chinese parties submitted their dispute with no foreign element to a foreign arbitral institution, which will have significant implications for arbitration development in China.
18
Marmazov, Vasyl, and Pavlo Pushkar. "The Right of Access to Non-State Dispute Resolution in the Legal Order of Larger Europe: A Yardstick to Harmonise Approaches to State and Non-State Dispute Settlement in Ukraine." NaUKMA Research Papers. Law 7 (July 20, 2021): 33–43. http://dx.doi.org/10.18523/2617-2607.2021.7.33-43.
Повний текст джерелаАнотація:
The Ukrainian legal thought has traditionally regarded the right of access to justice as a right of access to the State court, or to State managed or controlled procedures for dispute settlement. One of the main reasons for that was that the non-state, or uncontrolled by the State dispute settlement was not formally permitted, prohibition being imposed by the Soviet system and even to a certain extent during the period of domination on parts of the territory of the modern Ukraine, of the various externally imposed requirements of various legal systems in force at the material time. Non-state dispute settlement in its traditional forms, mainly based on the custom, was also left outside the attention in the pre-Soviet times and could not find its dignified place between accessible schemes and instruments for dispute settlement. Moreover, the understanding that justice delivery for the parties to the dispute should remain within State monopoly, became commonly accepted as from 1996. The adoption of the Constitution of Ukraine to a certain extent perverted approach to settlement of conflicts, focusing on the main role for the State courts, to these ends. In particular, the courts are having “direct jurisdiction” over any dispute, this led to perception of pre-trial settlements as unnecessary, even as regards those that remained in force, notably, the commissions on labour disputes that were recognized in the case-law of the European Court as equating in legal force to binding and enforceable legal instruments. Thus, the traditional historical approach to seeing judicial examination of disputes as an exceptional step in dispute settlement, in the absence of agreement or settlement by the parties, notably through mediation, arbitration or conciliation, variousforms of third party involvement, steadily disappeared. However, alternative examination of disputes is returning back to its original standing. It is gaining its place in the discussions on the judicial reform and reform of the system for settlement of disputes. This reform is far from being finalised and possibly has not even started in practice. The new approach to settlement of disputes, aimed at breaking the principle of State monopoly on examination of disputes and seeing State dispute settlement by court as an exception, is still not firmly entrenched into the mentality of lawyers, public servants, judges, law enforcement employees and politicians in Ukraine. Thus, the article suggests and points out to importance of taking into account with these changes of a wider European perspective. Such a perspective should relate not only to theoretical and practical advantages of the non-state dispute settlement, but also provides that the privatisation of the dispute settlement procedures and breaking the state monopoly on it, is a part of wider international obligations, also being a part of the supranational legal order of the European Union. This obligation of Ukraine is also seen as part of the requirements stemming from the Council of Europe law. Both the EU law and the Council of Europe provide for extensive soft law recommendations, legal principles, which are formed by the case-law of the European Court of Human Rights. Such an approach provides that alternative means of dispute settlement, including arbitration, do not run contrary to the principles of human rights with regard to fair judicial proceedings. On the contrary, they could be seen as a highly relevant actual means of dispute settlement for any modern European society, built on the principles of respect to rule of law and human rights.
19
Manik, Herlina. "Eksistensi Lembaga Adat Melayu Jambi Dalam Penyelesaian Sengketa Masyarakat Adat." Jurnal Selat 6, no. 2 (August 26, 2019): 213–24. http://dx.doi.org/10.31629/selat.v6i2.1323.
Повний текст джерелаАнотація:
Disputes that arise in the community can disrupt the public order. For this reason, efforts are needed so that’s every dispute can be resolved so that the balance in the community order can be restored. The purpose of this study is to determine the extent of the existence of customary institutions in resolving disputes and also to find out what processes or steps are taken by traditional institutions in resolving disputes. This research was conducted in Jambi. This type of researsh is sociological juridical. Data collection was conducted through interviews, data were analyzed by qualitative analysis and presented descriptively. The results of the study show that the existence of the Jambi Malay Customary Institution in the settlement of indigenous peoples' customary law disputes still exists and still continues today. The existence of the Jambi Malay Customary Institution can be seen from its arrangement in the Jambi Province Regional Regulation (PERDA) Number 5 of 2014 concerning the Jambi Malay Customary Institution. The dispute resolution prosses are carried out in several stages, namely: the stage of summoning the parties, the stage of summoning the witness, the stage of the deliberation process and closing. After going through the deliberation process, the mediator will provide a decision / solution that if accepted by the parties will be made in the form of an agreement. But if the parties cannot accept it, the mediator gives input to proceed to the court's formal path. Jambi Province's Regional Regulation Number 5 of 2014 concerning Jambi Malay Customary Institutions can continue to be socialized and Jambi LAM is expected to be increasingly active in carrying out its duties and functions so that Jambi traditional law can be enforced in community life.
20
Šumpíková, Markéta, and Ina Ďurčeková. "Transaction Costs, Outsourcing, and the Public Procurement Review Process in the Czech Republic and Slovakia." NISPAcee Journal of Public Administration and Policy 12, no. 2 (December 1, 2019): 233–50. http://dx.doi.org/10.2478/nispa-2019-0021.
Повний текст джерелаАнотація:
AbstractPublic procurement is a crucial activity undertaken by the public sector. However, public procurement entails a wide range of transaction costs. While many papers focus on the ex-ante transaction costs, it is equally important to evaluate the types of ex-post transaction costs. The disputes stemming from conflicts between procuring authorities and proposers often bring additional costs to both parties. One of the ways to ensure that the procuring authority wins the dispute is using the services of an external law firm to represent the procuring authority in the review process. The aim of the paper is to examine the extent of the use of external law services in the public-procurement review process by procuring authorities and proposers in Slovakia and in the Czech Republic. The focus is also on the impact the use of external law firms in the review process may have on the length of the review process and the outcome of the dispute. Our results suggest that while the use of the external law firm may lead to a higher success rate of the review process on the side of a procuring authority, the same does not apply to proposers. There were no conclusive findings regarding the impact of the outsourcing on the length of the review process.
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Wellington, Alex. "Taking Codes of Ethics Seriously: Alternative Dispute Resolution and Reconstitutive Liberalism." Canadian Journal of Law & Jurisprudence 12, no. 2 (July 1999): 297–332. http://dx.doi.org/10.1017/s0841820900002253.
Повний текст джерелаАнотація:
Alternative dispute resolution has the potential to be many things to many people, although it cannot, of course, be everything to everybody. A careful reflection on the appropriate role and scope of alternative dispute resolution will evidence that it has much to offer the legal profession and the legal system. For one thing, it can rejuvenate the practice of law for its practitioners, being both fun and fascinating. It can also help to improve the public perceptions of lawyers, which may be sinking to all time lows. One way of approaching the topic is to suggest that lawyers need alternative dispute resolution—they need it both to enhance their public image and in order to drum up new business opportunities. Another way of approaching the topic is to focus on the contribution of treatments of alternative dispute resolution to the “growth of the modern social scientific study of law.” Studies along these lines may emphasize the development of the Alternative Dispute Resolution movement in terms of attempts to “recast the market for dispute resolution services by different interests attempting to advance their own professional projects.”.Yet a different way of examining alternative dispute resolution is to explore the self perceptions of its practitioners and theorists—what they think it has to offer to its consumers and society at large. Alternative dispute resolution certainly can provide a fertile source of ‘satisfaction’ to the parties to disputes. The “mediation alternative”, for instance, is said to provide a more complex form of ‘satisfaction’, one in which the needs and interests of the parties determine the final outcome. It is not only that there are some disputants—who currently are not aware of, or encouraged to pursue, opportunities to resolve their disputes by negotiation or mediation—who would benefit from access to ADR. It is also that even those who might fail to reach agreement if they tried negotiation or mediation would still benefit from the attempt and may be less likely to be disaffected or disappointed from the adjudicative outcome to their dispute having tried the “other way” beforehand. Perhaps even those who might decline to avail themselves of the option to try ADR even if offered would benefit just from having the choice. All disputants, therefore, benefit to some degree from the processes of ADR being readily available and carried out reliably and responsibly.
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Abushenko, Dmitry B. "Negative admissibility of evidence in public law litigation: reflections on the exercise of public authorities’ power in relation to the proof process." Current Issues of the State and Law, no. 20 (2021): 800–808. http://dx.doi.org/10.20310/2587-9340-2021-5-20-800-808.
Повний текст джерелаАнотація:
We consider the issues of the implementation of certain public authorities in relation to a future judicial dispute. We define the boundaries of use of additional evidentiary tools through the prism of the powers vested in other (non-parties in a particular court case) public entities. We substantiate the applicability of the general rule on negative admissibility, we highlight special cases when evidence previously obtained by an authority that does not have the status of a person participating in the case could still be submitted to a court case initiated on a dispute involving a public authority. The general logic of the proposed approach can be applied both to a procedural private opponent when he received “reinforcement” due to the actions of another authority, and can also be used for private law disputes. We conclude that the absence in the current Russian legislation of any norms that build in-tersectoral relations with regard to the institution of negative admissibility of evidence obtained by other authorities not only generates contradictions in judicial practice, but also in a certain sense discredits the adversarial judicial procedure itself and discourages public authorities, which begin to operate with special tools to combat socially dangerous acts in “ordinary” court cases.
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Kalinina, D. A. "Requirements for an Arbitrator: A Comparative Historical Approach." Lex Russica, no. 4 (April 24, 2021): 101–11. http://dx.doi.org/10.17803/1729-5920.2021.173.4.101-111.
Повний текст джерелаАнотація:
The paper presents a comparative legal and comparative historical analysis of one of the aspects of the institution of the arbitration, namely, the election of an arbitrator. The contractual, non-state nature of arbitration leaves the disputing parties with a wide freedom of expression, including in determining the personality of a mediator or intermediaries in resolving a dispute. The paper focuses on identifying the key features that the disputing parties should pay attention to when choosing an arbitrator (judges). The Roman jurists established comprehensive and justified set of personality traits that an arbitrator should possess in order to maintain the general idea of the conclusiveness of judicial decisions. According to the norms of Roman law, an arbitrator must be a free person, physically healthy, with a developed intellect, with life experience, not tainted by immoral acts, not involved in illegal activities, not interested in a certain outcome of the case. In the Middle Ages, the system of mandatory requirements for a mediator in a dispute was reduced due to the simplification of public relations regulated by customary law, which was reflected in legislative documents. Priority was given to the high social stratum, ethnic and religious conformity of the judge to the disputing persons. In modern times, the freedom of litigants to choose arbitrators is almost absolute, taking into account the tendency to individualize the interests of the parties to the conflict and the inability to take into account all the particular circumstances of various disputes that could affect the choice of an arbitrator. Only when resolving economic disputes, the parties were guided by the judge’s special knowledge, which makes it possible to understand the essence of the property dispute and make a fair decision. The analysis made it possible to identify the continuity of the provisions of Roman law and the requirements imposed on the arbitration intermediary in the Middle Ages and Modern times. Historical comparison revealed a tendency to reduce the number of mandatory features of the candidate for arbitration, which determined the growing importance of the freedom of the disputing parties as the most significant feature of the arbitration court.
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Setyo Wibowo, Danar, and Sri Endah Wahyuningsih. "The accountability of the Criminal Case Relating to the Act made by Act No. 2 of 2014." Jurnal Akta 6, no. 2 (August 30, 2019): 405. http://dx.doi.org/10.30659/akta.v6i2.5086.
Повний текст джерелаАнотація:
Notaries are public officials appointed by the government to help the public make the agreements which are or appear in public. The purpose of the presence of a written agreement is to ensure legal certainty of the stakeholders of the agreement. The written agreement made before a notary deed called. Atka could be used as evidence if there is a dispute between the parties to the dispute, with the explanation of the importance of this function in tulisakan act until the regulations of Law No. 2 of 2014Keywords: notary; Responsibility for crime; legal protection
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SCHILL, STEPHAN W. "Crafting the International Economic Order: The Public Function of Investment Treaty Arbitration and Its Significance for the Role of the Arbitrator." Leiden Journal of International Law 23, no. 2 (April 27, 2010): 401–30. http://dx.doi.org/10.1017/s0922156510000117.
Повний текст джерелаАнотація:
AbstractInvestment treaty arbitration, unlike commercial arbitration, is not a purely private dispute settlement mechanism that is entirely subject to party autonomy and limited in its effects to the parties to the proceedings. Rather, it fulfils a public function in influencing the behaviour of foreign investors, states, and civil society more generally by crafting and concretizing international standards of investment protection. Investment treaty arbitration thus implements and operates as part of a public system of investment protection. Arbitrators, as a result, incur obligations not only towards the parties to the proceedings, but vis-à-vis the whole system of investment protection. These obligations can be conceptualized as part of the public law implications of investment treaty arbitration and affect, inter alia, the role and status of arbitrators in investment treaty disputes, the procedural maxims that such arbitrations should follow, and the way arbitral awards should be crafted.
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Vinokurov, V., V. Gavrilenko, and V. Shenshin. "Administrative Offense Proceedings and Pre-Trial Dispute Resolution in the BRICS Countries." BRICS Law Journal 9, no. 1 (April 18, 2022): 35–61. http://dx.doi.org/10.21684/2412-2343-2022-9-1-35-61.
Повний текст джерелаАнотація:
This article offers a comparative analysis of the particularities of the implementation of proceedings in cases of administrative offenses and pre-trial dispute resolution in the BRICS member states. The article observes that in the BRICS countries, the issues of pre-trial dispute settlement are resolved using the same mechanisms: negotiation and conciliation procedures, including mediation. The implementation of these mechanisms is possible by the parties to the dispute themselves, with the participation of third parties such as proxies or legal representatives who may be interested in carrying out the procedures, and with the services of independent, professional mediators. The article draws attention to the fact that the Federative Republic of Brazil, the Russian Federation, the Republic of India, the People’s Republic of China and the Republic of South Africa belong to different legal families, which undoubtedly is a feature of the legal regulation of their administrative offense proceedings as well as of their pre-trial dispute resolution. The article finds that Roman law largely influenced all of the BRICS countries, with the exception of India, whose legal system was formed under the influence of English law, and that the versatility of legal regulation does not allow one to speak fully about the balance of administrative legislation in the studied areas. Furthermore, it is characteristic of all of the BRICS countries that administrative punishment cannot be aimed at humiliating the human dignity of a natural person, causing him or her physical suffering, nor can it be aimed at damaging the business reputation of a legal person. The similarity of the tasks of the administrative legislation of the BRICS countries is noted, which should include the protection of the subjective rights and interests of citizens, ensuring the rule of law, the protection of public order and public safety, and the prevention of administrative offenses. Through the discourse presented by the authors, the concept of an administrative offense is revealed; the acts regulating the proceedings in cases of administrative offenses are considered, as well as the tasks and principles established by national legislation in this direction. Furthermore, the similarities and differences in the legal regulation of proceedings in cases of administrative offenses and pre-trial settlement of disputes are revealed.
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Latham, Ian. "Case in Re Moore and Others; Ex Parte New South Wales Public Service Professional Officers' Association and Another." Federal Law Review 15, no. 4 (December 1985): 344–47. http://dx.doi.org/10.1177/0067205x8501500404.
Повний текст джерелаАнотація:
Industrial Law (Cth) — Restraint of State industrial commission jurisdiction — Validity of restraining order - Necessity to specify what matter is removed from State jurisdiction — Requirement of interstate industrial dispute for valid restraining order — Relationship between matter and parties — Validity of empowering Commonwealth provision — Conciliation and Arbitration Act 1904 (Cth) s 66
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Gmurzyńska, Ewa. "Analysis of the Causes of Conflicts at Universities and Alternative Methods of Resolving Them. Part II: Academic Ombudsman and Adjudicative Methods." Studia Iuridica Lublinensia 30, no. 2 (June 30, 2021): 149. http://dx.doi.org/10.17951/sil.2021.30.2.149-203.
Повний текст джерелаАнотація:
<p>This study is the second part of the article entitled: <em>Analysis of the Causes of Conflicts at Universities and Alternative Methods of Resolving Them. Part I: Mediation in Academic Disputes</em>. The first part analyzes the causes of conflicts at universities and the basic alternative method of solving them – mediation. The second part focuses on the issue of academic disputes in the context of the court proceeding, and discusses the institutions of the academic ombudsman, arbitration in academic disputes and mixed methods, in particular the Office of Independent Adjudicator. Due to the changing expectations of students towards universities, contractual nature of these relations, increased number of court proceedings brought against universities or anticipation of such an increase, as well as the development of ADR methods in various fields, universities around the world started to look for new ways of solving academic disputes that would protect the independence of universities and at the same time fulfill an educational function. ADR methods such as mediation, ombudsman or arbitration may effectively replace or supplement insufficient internal procedures, as well as court proceedings characterized by high costs, lengthy procedures and formalism. These methods are better adapted to the nature of the academic community, take into account the voice of the participants, give them the opportunity to influence the proceeding and outcome of the dispute, ensure the equality of the parties. They also fulfill educational purposes, especially in disputes involving students, as they give the possibility of ending the dispute through dialogue and taking into account the point of view of the other party.</p>
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Проскурякова, І. М. "HISTORIOGRAPHY OF THE LAW INSTITUTE OF ALTERNATIVE DISPUTE RESOLUTION IN ADMINISTRATIVE JUDICIARY." Juridical science, no. 3(105) (March 30, 2020): 265–73. http://dx.doi.org/10.32844/2222-5374-2020-105-3.34.
Повний текст джерелаАнотація:
The relevance of the article is that in administrative law the legal institution is usually referred to as a kind of alternative dispute resolution, which under certain conditions is able to overcome or reduce the negative and help restore their rights. By its nature, this institution is designed on the basis of law and consensus of the parties to promptly resolve the issue on the merits and save heterogeneous resources. The consequences of this are several positive aspects, including, for example, the unloading of the judiciary, as well as a positive impact on public opinion or positive ratings of Ukraine in the world. The leading role in increasing the effectiveness of the legal institution of dispute resolution with the participation of a judge is played by its scientific basis, part of which is historiography. After all, it is well known that the neglect of the study of the genesis of thoughts is a manifestation of errors and one-sidedness, which can lead to undesirable consequences of varying severity. The purpose of the article is to provide a description of the historiography of the legal institution of alternative dispute resolution in administrative proceedings on the basis of dissertation research on dispute resolution with the participation of a judge. The article describes the historiography of the Ukrainian administrative and legal institute of alternative dispute resolution in court proceedings. The author focuses on the issue of dispute resolution with the participation of a judge at the present stage of development of scientific and legal thought. It is concluded that the issue of alternative, mediation or pre-trial settlement / resolution of disputes in the domestic legal literature remains controversial. In the past five years, a new impetus for the development of the historiography of the legal institution of alternative dispute resolution in administrative proceedings has been the problems of Ukrainian society related to unresolved judges and reasonable deadlines initiated by democratic European institutions. In Ukraine, along with its own practice, an urgent and popular transition has begun from the search for an effective model of dispute resolution to the study of empirics of dispute resolution, which is characterized by pronounced legal nihilism in part of its territory.
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Lam, Joanna, and Güneş Ünüvar. "Transparency and participatory aspects of investor-state dispute settlement in the EU ‘new wave’ trade agreements." Leiden Journal of International Law 32, no. 4 (September 4, 2019): 781–800. http://dx.doi.org/10.1017/s0922156519000360.
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AbstractThis article scrutinizes the investment chapters in the new EU Free Trade Agreements from a transparency perspective. The article examines the claims that the dispute settlement mechanisms in the new treaties are sufficiently participatory and more transparent than their predecessors. Procedural standards related to confidentiality of proceedings shall be analysed in the context of existing transparency safeguards in investment arbitration. In addition to procedural guarantees of transparency, the article examines relevant substantive rules affecting participatory aspects of dispute settlement. Furthermore, the article discusses forum-shopping strategies of the parties in the field of investment-related disputes, including internal forum-shopping and parallel proceedings using different procedural mechanisms. In this context, lessons from other fields such as international commercial arbitration related to transparency (in cases in which public interest is present) are highlighted. The proposal for the establishment of an integrated, multilateral court for investment cases is also invoked.
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Crous, AJ. "Keuringspanele ("Screening Panels") as Gepaste Geskilbeslegtingsmetode ter Oplossing van Mediese Wanpraktyks-geskille." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 12, no. 3 (June 26, 2017): 97. http://dx.doi.org/10.17159/1727-3781/2009/v12i3a2735.
Повний текст джерелаАнотація:
A right only has any value if there is a remedy providing for the acknowledgement and enforcement thereof. An increase in medical malpractice claims can be expected in South Africa in view of the fact that the public is becoming more and more aware of its rights in respect of health services and health care. The public opinion calls for development of dispute resolution proceedings. The fact that the law is not accessible to everyone in South Africa is a matter of concern. High litigation costs, coupled with the time consuming protracted, formal and complicated process, call for a transformation towards an alternative, non-judicial process that is suitable for a particular dispute and apposite to the parties involved. Selection panels, the medical ombudsperson and arbitration clauses incorporated in doctor/patient agreements, are ADR mechanisms that have been proved by American law as suitable for resolution of medical malpractice claims. In this particular article attention is paid to screening panels as pre-trial mechanism with the exclusive purpose to select malpractice disputes, discourage unfounded disputes and to encourage an early settlement in case of a prima facie case.Several objections have been raised by critics in this regard, for instance, a screening panel infringes on: the right of equal protection/the right of access to the courts/the right to a jury trial/the right to a due process as well as on the trias politica doctrine. These so-called infringements are attended to and eventually a positive conclusion regarding screening panels is made: medical screening panels (consisting generally of a medical doctor, a lawyer and a member of public), based on the American experience, is indeed an appropriate dispute resolution method.
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Litan, Adelin, Fresley Hutapea, and Rina Mutiara. "IMPLEMENTATION EFFECTIVENESS OF HOSPITAL RESPONSIBILITY TOWARDS MEDICAL DISPUTE PROCESS AT HOSPITAL X CIBINONG." Jurnal Ilmiah Teunuleh 2, no. 3 (September 14, 2021): 15–24. http://dx.doi.org/10.51612/teunuleh.v2i3.59.
Повний текст джерелаАнотація:
Medical disputes that are rife in the medical world in Indonesia are a separate burden for medical personnel in carrying out daily practices, where the hospital as a place for medical personnel to work, should be responsible for medical personnel involved in medical disputes. The absence of sufficiently clear regulations governing the responsibility of hospitals in resolving medical disputes, makes medical personnel, in this case, the most disadvantaged part. The purpose of this study is to empirically determine the applicable laws and regulations regarding the responsibility of hospitals in the process of resolving medical disputes and the effectiveness of their implementation. The research method used is qualitative research with case study approach. Data sources are primary and secondary data. The data analysis subjects were informants, namely the director of medical services, the legal department officer and the public relations officer. The analysis tool uses interactive analysis. There were at least 4 laws and regulations related to hospital responsibility for medical personnel and implementation of regulations regarding hospital responsibility towards medical dispute process is 88%. The research found no guidelines for handling medical disputes. This study shows that the laws and regulations related to hospital responsibility and their implementation in the medical dispute resolution process have been implemented. The recommendation to Hospital X Cibinong is to make guidelines on the flow of medical dispute handling and provide education about health law to all hospital staff, especially medical personnel as parties most vulnerable to malpractice suits.
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Rouméas, Élise. "Religious Diversity in the Workplace: The Case for Alternative Dispute Resolution." Political Studies 68, no. 1 (April 12, 2019): 207–23. http://dx.doi.org/10.1177/0032321719839316.
Повний текст джерелаАнотація:
The workplace is a focal point for debates about religion and public life. This article examines the question of religion at work, and how to fairly resolve the conflicts it generates. Specifically, it advocates for the use of alternative dispute resolution to address these conflicts. Alternative dispute resolution refers to a set of dispute processing methods, mainly arbitration and mediation. Unlike litigation, these procedures rely on the consent and cooperation of the parties involved. I argue that alternative dispute resolution is best conceived of as a desirable complement to the rule of law rather than a cheaper alternative. It conveys a distinctive approach to procedural fairness, which is attentive to individual circumstances, and it frames the relationship between disputants in a cooperative way. Alternative dispute resolution is thus a valuable tool for the accommodation of religious diversity in the professional world.
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Selyukov, A. D. "Causes, Scope and Features of Disputes in Budgetary Sphere." Rossijskoe pravosudie 2 (January 29, 2020): 80–89. http://dx.doi.org/10.37399/issn2072-909x.2020.2.80-89.
Повний текст джерелаАнотація:
The article is devoted to identifying the features of conflicts in the public sector as a basis for disputes, including with the participation of courts. The concept of «public interests» is introduced, on the basis of which the characteristic of disputes in the budgetary sphere is given as a dispute between the parties, relations between which are based on the method of legal inequality. It is concluded that by virtue of the law, the ruling party gives instructions to the subordinate party to do something in relation to the budget, but not always the public interests of the parties to the legal relationship are equally protected by law, which is not sufficiently manifested in the practice of legal support of budgetary activities. Since the efforts of the legislator to regulate budgetary relations are mainly aimed at ensuring procedural activities, they almost do not affect the goal-setting mechanism, so the subordinate party has no opportunity to challenge the management decision that infringes the implementation of the public interests of the subordinate party. By virtue of the above, the courts do not participate in the consideration of issues that go beyond the procedure for spending budget funds and the application of appropriate sanctions. Therefore, frequent cases of arbitrariness of the powerful party in budgetary legal relations remain without proper judicial protection. To solve the problem, it is required to introduce the institution of goal-setting in the budget legislation, so that it will be possible to talk about the proper provision of public interests in the budget sphere.
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Zachariasiewicz, Maciej. "Amicus Curiae in International Investment Arbitration: Can It Enhance the Transparency of Investment Dispute Resolution?" Journal of International Arbitration 29, Issue 2 (April 1, 2012): 205–24. http://dx.doi.org/10.54648/joia2012012.
Повний текст джерелаАнотація:
In investment arbitration there is a tension between the consensual commercial character of a dispute and an increasing need to offer transparent proceedings where a public interest is involved. It came to be quite clear from the beginning of the twenty-first century that investment arbitration would benefit from being more transparent and that the participation of amici curiae might be one method of addressing the problem. The Article concentrates on the role of non-disputing parties in investment arbitration and the changes that have occurred in the arbitration rules and BITs during the last decade. It is argued that the participation of non-disputing parties does increase the transparency of investment arbitration and allows for a greater democratic legitimacy of the whole process. In particular, the Article advocates a view that it is both possible and desirable to enhance the existing procedural framework by guaranteeing to amici curiae access to the arbitration documents and to oral hearings, subject to the necessary protection of genuine commercial secrets.
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Alvarez-Jiménez, Alberto. "PUBLIC HEARINGS AT THE WTO APPELLATE BODY: THE NEXT STEP." International and Comparative Law Quarterly 59, no. 4 (October 2010): 1079–98. http://dx.doi.org/10.1017/s002058931000045x.
Повний текст джерелаАнотація:
The WTO Appellate Body has so far authorized public appeal hearings as the exception, not the rule: it is limited to those instances in which the main parties request it. Such authorization constitutes a very positive development for the WTO dispute settlement system, for it enhances the transparency of the system at its highest stage. Indeed, the Appellate Body is becoming a leading actor in the formation of international law1 owing to the fact that it is the most active international court of the world, the relevance of the issues it deals with and the fact that it is at the apex of a dispute settlement system with permanent and exclusive jurisdiction over 153 States. Nonetheless, it is not in tune with inter-state international adjudication where the trend concerning hearings is, for good reason, geared towards openness and transparency, not privacy, as the rule.
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Melenko, O., O. Stratiy, and L. Hrindei. "Administrative mediation in the light of institutional transformations in Ukraine." Uzhhorod National University Herald. Series: Law, no. 68 (March 24, 2022): 180–85. http://dx.doi.org/10.24144/2307-3322.2021.68.30.
Повний текст джерелаАнотація:
The article highlights the social significance of administrative mediation, which consists in the organization and development of civil society institutions (for example, public associations of mediators), including their public control over public administration as a system of bodies and organizations designed to implement goals and objectives given by the political (representative) power of the state. With the help of administrative mediation, society can legally «signal» to the representative authorities about certain problems in public relations (for example, on the basis of depersonalized statistical information and reports provided by associations of mediators), eliminate and find compromise in overcoming shortcomings of public administration together with the government and, finally, to move the process of modernization of the executive branch towards finding consensus at all levels of interaction between the state and society. The article proposes the author’s definition of «administrative mediation» as an extra- judicial legal form of voluntary settlement of an administrative dispute involving two or more parties, one of which is a subject of power, and a professional mediator arising from a violation of administrative law. The article presents a number of special features and characteristics of administrative mediation, which, unlike other types of mediation, require the application of specific institutions. For instance: inequality of the parties, the dispute is based on the public interest; the principles of confidentiality and voluntariness are relative; complex structure of the mediator’s financial reward; requires the involvement of independent experts; special requirements for the mediator. The article proposes the criteria according to which an administrative dispute can or cannot be resolved through the procedure of administrative mediation. The article proposes a number of legislative initiatives regarding the institutionalization and development of the institution of administrative mediation in Ukraine. Among them, it is proposed to introduce a special section in the Code of Administrative Procedure of Ukraine «Mediation» (as was done in Poland), where, among other things, clearly define the restrictive framework (criteria) for administrative disputes, according to which the procedure of administrative mediation can be applied.
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SADOUN, Shaymaa. "ARBITRATION TO RESOLVE DISPUTES OF INTERNATIONAL ADMINISTRATIVE CONTRACTS." RIMAK International Journal of Humanities and Social Sciences 03, no. 06 (July 1, 2021): 291–306. http://dx.doi.org/10.47832/2717-8293.6-3.27.
Повний текст джерелаАнотація:
The judiciary is the natural way to resolve disputes and the means of establishing justice in society among its various members, because the judiciary is a manifestation of state sovereignty and can only be exercised by the public authority of the State. Since Iraq is one of the states that adopt a system of double law and justice and enshrined its constitution and laws, the adjudication of disputes in which the administration as a governing body exists is a public authority of the administrative judiciary, as the subject of the dispute was based on a single act, but in the view of the ordinary judiciary, it was a contract. The refore, the need for a more effective and effective approach to the implementation of the agreement sought to ensure that the parties are able to meet the needs of the international community. Common law people as a public authority, and although some jurisprudence is opposed to the inclusion of the arbitration clause in administrative contracts in general and administrative contracts of a particularinternational nature, economic and social changes have made it imperative to resort to it, which has led to increased interest in alternative methods of resolving disputes in various legal and judicial systems.
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WEISS, WOLFGANG. "Security and predictability under WTO law." World Trade Review 2, no. 2 (July 2003): 183–219. http://dx.doi.org/10.1017/s1474745603001423.
Повний текст джерелаАнотація:
This article focuses on the interpretation and application of law in WTO dispute settlement from the angle of legal certainty and predictability. An analysis of the interpretation of WTO law shows that in general it does not differ from the interpretation of other public international law as interpretative rules well known in international law are applied. This together with the consistence provided by the respect of earlier panel and Appellate Body reports safeguard legal certainty. Furthermore, legal certainty and predictability requires clarity in the law applicable in WTO dispute settlement, in particular as regards non-WTO law. It will be shown that apart from peremptory norms of public international law (ius cogens), the relevance of international law outside WTO law is limited. Non-WTO treaty law must not be applied except if referred to by WTO law or incorporated therein. Apart from that international law of any kind can only be considered when interpreting WTO law. In certain circumstances this applies even to non-WTO treaty law to which not all WTO members are parties. Due to the as yet limited importance of non-WTO law, legal certainty and predictability also depend on the issue of conflict of norms, which also is relevant as far as the interrelationship of the different WTO agreements is concerned. In this regard predictability and legal certainty cannot be fully reached.
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Koch, Hans-Joachim, and Moritz Reese. "Public Waste Management Services in the Internal Market – and the Interpretation of Article 106 TFEU." Journal for European Environmental & Planning Law 8, no. 1 (2011): 23–45. http://dx.doi.org/10.1163/187601011x559709.
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AbstractA matter of current dispute in the German waste-management sector is the extent to which it is permissible under EU law to restrict the market for the recovery of household waste in favour of public providers of disposal services, as is common practice in many member states. This dispute raises fundamental questions as to the relationship between the public provision of services of general interest and European competition and so concerns, in particular, the relevant rules under Article 106 TFEU. In adopting this article, the parties to the Treaty have—as will be shown below—reserved considerable freedom to exempt public services of general interest from competition and the free movement of goods. Whilst their freedom to do so may be limited under secondary legislation providing for an EU-wide competition solution, such legislation must take the form of a targeted liberalisation measure which also lays down the accompanying rules needed to guarantee a universal, reliable and affordable provision of services. The secondary EU waste legislation does not meet this requirement.
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SHAFFER, GREGORY, and L. ALAN WINTERS. "FTA Law in WTO Dispute Settlement: Peru–Additional Duty and the Fragmentation of Trade Law." World Trade Review 16, no. 2 (March 10, 2017): 303–26. http://dx.doi.org/10.1017/s1474745616000550.
Повний текст джерелаАнотація:
AbstractThere is a serious imbalance between the sclerosis of the political system of the World Trade Organization (WTO) and the automatic adoption of WTO Appellate Body judicial reports. The question is whether the WTO Appellate Body will recognize bilateral political agreements (such as under Free Trade Agreements, FTAs) that modify WTO obligations between two parties. In addressing this question, the Appellate Body decision inPeru–Additional Duty on Imports of Certain Agricultural Productsis important. The decision addressed the availability of defenses under FTAs in WTO disputes, as well as under public international law generally. After critically assessing the decision, we set forth a series of judicial and political choices for addressing the interaction of WTO and FTA rules going forward. In particular, we contend that clear modifications of WTO commitments under an FTA should be recognized by WTO panels as a defense, but subject to the FTA itself complying with WTO requirements under GATT Article XXIV. The case is important not only for trade specialists, but generally for policymakers and scholars of global governance in a world of fragmented international treaties.
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Quintão, Luísa. "Where the Private Meets the Public: What to Expect When Arbitrating with Brazilian State Entities." Revista Brasileira de Arbitragem 14, Issue 56 (December 1, 2017): 7–22. http://dx.doi.org/10.54648/rba2017056.
Повний текст джерелаАнотація:
ABSTRACT: Even though Brazil is outside the investment arbitration system, Brazilian State entities are now expressly allowed to submit disputes to arbitration, provided that such disputes fulfil the requirements of arbitrability under Brazilian law. This possibility may work as a means of attracting (foreign and national) private investments to Brazil. However, commercial arbitration involving Brazilian State entities may differ (albeit not extensively) from ordinary disputes between private parties especially because such entities are subject to constitutional rules that must be complied with before, during and after the arbitration. This brief article aims at analysing the main peculiarities of arbitration involving State entities in Brazil in order to conclude that is safe for private investors to rely on commercial arbitration as an effective dispute resolution mechanism. RESUMO: Apesar de o Brasil estar fora do sistema de arbitragem de investimento, os entes da Administração Pública brasileira são agora expressamente autorizados a submeter conflitos à arbitragem, contanto que tais conflitos satisfaçam os requisitos de arbitrabilidade nos termos da lei brasileira. Essa possibilidade pode servir como meio de atrair investimentos (estrangeiros e nacionais) para o Brasil. Entretanto, a arbitragem comercial envolvendo entes da Administração Pública brasileira pode ser distinta (apesar de não extensivamente) de conflitos ordinários entre partes privadas, especialmente porque tais entes estão sujeitos a normas constitucionais que devem ser observadas antes, durante e depois da arbitragem. Este breve artigo busca analisar as principais peculiaridades da arbitragem envolvendo a Administração Pública no Brasil a fim de concluir que é seguro aos investidores privados confiar na arbitragem comercial como um meio efetivo de resolução de conflitos.
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Rosadi, Aulia Gumilang. "TANGGUNG JAWAB NOTARIS DALAM SENGKETA PARA PIHAK TERKAIT AKTA PERJANJIAN PENGIKATAN JUAL BELI (PPJB) YANG DIBUATNYA." JCH (Jurnal Cendekia Hukum) 5, no. 2 (March 30, 2020): 243. http://dx.doi.org/10.33760/jch.v5i2.228.
Повний текст джерелаАнотація:
Public Notary as an official appointed by the Government who has the authority (bevoegdheid) and responsibilities which, if reviewed comprehensively, could potentially be subjected to administrative, civil or criminal claims when a dispute related to the deed which is made by him/her. The main issues discussed in this study are; 1) How chosen for a notary and parties in the binding sales purchase agreement ? 2) How responsibility the parties upon an agreement in the agreement on binding sales of a bell Which is drawn up before the notary ? 3) How a form of responsibility the notary in dispute the parties related the binding sales purchase agreement made ? The research is a normative juridical research with statute approach. The data used are secondary data in the form of; primary, secondary and tertiary legal materials. The results shows that the notary is administratively, civil and criminally responsible for the deed and the process of forming the deed itself, so the notary needs to implement a policy based on regulations so that he/she with the deed he/she made and the parties can be protected by law.
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Iskandar Ichlas, Rudy, and Akhmad Khisni. "Legal Analysis on Status as A Co-Defendant Notary in Dispute of Gather Treasure (Case Study in The Court of Ungaran District No: 105 / Pdt.G / 2016 / PN.Unr)." Jurnal Akta 6, no. 2 (August 16, 2019): 291. http://dx.doi.org/10.30659/akta.v6i2.5035.
Повний текст джерелаАнотація:
Authentic Deed is not solely determined by the law but must also be made before a public official even though the parties have signed. Pernasalahan formulation of this research: 1. How plaintiff legal reasons related to the notary as a co-defendant in the decision number 105 / Rev. G / 2016 / PN. Unr ?, 2. What legal consequences for the Notary as a co-defendant in the decision number 105 / Rev. G / 2016 / PN. Unr. In conclusion: 1). Position Anief Ratnawati, SH, Notary / PPAT in Ungaran as Co-Defendant extremely detrimental due to the lack of legal certainty as Co-Defendant and One goal (error in persona). Hence proved their obscuur libel and Error In Persona judge shall include in its decision to declare the judgment can not receive (NO: Niet ontvankelijk verklaard) lawsuit plaintiffs, 2). Anief Ratnawati, SH. as a Notary Public who is drawn into the dispute be imprecise Co-Defendant not authorized in terms of time (Onbevoegdheid ratione Temporis) and violates the principle of legality and the principles of civil law as private law. On the other hand the plaintiff proved to be an inheritance dispute within the competence of religious courtsKeywords: Legal Analysis; Notary; Co-defendant; Dispute; Gather Treasure.
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Kryvoi, Yarik. "Private or public adjudication? Procedure, substance and legitimacy." Leiden Journal of International Law 34, no. 3 (June 4, 2021): 681–703. http://dx.doi.org/10.1017/s0922156521000224.
Повний текст джерелаАнотація:
AbstractThis article identifies the essential differences between public and private adjudication and their implications for the legitimacy and efficiency of dispute resolution institutions, as well as the rule of law. Public adjudication comes at a significant cost for the taxpayers but helps secure a consistent body of case law, promotes public policy goals, and allows third parties to know the rules of conduct in advance to prevent undesirable activities. This article shows that procedural rules of these institutions (regardless of whether the procedure is called adjudication or arbitration) differ when it comes to the appointment of adjudicators, their professional background, and how long they serve. Public and private institutions consistently follow different approaches to transparency and confidentiality of proceedings, the application of primarily substantive rules or principles to resolve disagreements, and the extent to which decisions can be reviewed internally or externally. By examining the procedural rules and practices of selected institutions, the article asserts three main claims. First, the choice of public or private adjudication is likely to lead to different procedural outcomes, including the cost of the process and the duration. Second, the legitimacy of any dispute resolution system must rest on both procedural and substantive aspects, while in reality these two are often viewed in isolation. Finally, the article shows how institutions could learn from each other to become more efficient and strengthen their legitimacy.
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Syufaat, Syufaat. "PENERAPAN PROSEDUR MEDIASI DALAM PENYELESAIAN SENGKETA WAKAF DI PENGADILAN AGAMA." Volksgeist: Jurnal Ilmu Hukum dan Konstitusi 1, no. 1 (October 3, 2018): 21–36. http://dx.doi.org/10.24090/volksgeist.v1i1.1678.
Повний текст джерелаАнотація:
Waqf has two dimensional meaning; the spiritual dimension that is taqarrub to Allah and the social dimension as the source of Islamic financial for the welfare of the people. Waqf disputes can be caused by several reasons; waqf land is not accompanied with a pledge; waqf is done on the basis of mutual trust so it has no legal proof and ownership. Currently, the choice to use the court is less effective in resolving disputes. Hence, the public ultimately chooses non-litigation efforts as a way to resolve the disputes. Mediation process is preferred by many as it is viewed to be the fairest way where none of the two parties wins or loses (win-win solution). It is also fast and cheap. This study is intended to examine how to solve waqf dispute with mediation model according to the waqf law, and how the application of mediation in the Religious Courts system
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Moyano, Juan Pablo. "Impecuniosity and Validity of Arbitration Agreements." Journal of International Arbitration 34, Issue 4 (August 1, 2017): 631–52. http://dx.doi.org/10.54648/joia2017030.
Повний текст джерелаАнотація:
As a private dispute resolution mechanism, arbitration depends on the availability of funds from the parties. However, not infrequently one side will be unable, or unwilling, to advance its share of the costs. Courts faced with such cases can either uphold the validity of the agreement or set aside the agreement and retain jurisdiction over the dispute. This article examines several legal theories courts have relied on when doing so. Initially, it will present the various positions by way of case examples, including that the agreement is rendered invalid due to public policy principles, denial of justice, contractual breaches or waiver. Afterwards, it will analyse various issues that arise from court practice, including conflicts regarding the applicable law, jurisdiction and the burden of proof. The article concludes with the author’s suggestions on how decisions over the potential invalidity of the agreement could be guided.
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VON BOGDANDY, ARMIN, and INGO VENZKE. "On the Functions of International Courts: An Appraisal in Light of Their Burgeoning Public Authority." Leiden Journal of International Law 26, no. 1 (February 5, 2013): 49–72. http://dx.doi.org/10.1017/s0922156512000647.
Повний текст джерелаАнотація:
AbstractThis contribution presents international judicial institutions as multifunctional actors against the background of a traditional understanding, which sees just one function: settling disputes. The traditional, one-dimensional understanding eclipses other important functions that many international courts do actually perform in contexts of global governance and it underrates problems in their legitimation. In order to appreciate international adjudications’ manifold contributions to social interaction, the paper first identifies three more functions beyond dispute settlement: the stabilization of normative expectations, law-making, and the control as well as legitimation of authority exercised by others. It then places these functions within broader basic understandings of international courts, which respectively picture them as instruments of the parties in a state-centred world order, as organs of a value-based international community, and as institutions of specific legal regimes. The distinct problems that each of these basic understanding faces lead to the contours of a new paradigm for the study of international courts as actors exercising public authority. The present functional analysis ultimately helps to refine both the phenomenon and normative questions.
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Permata Sari, Mia, and Suteki Suteki. "PENYELESAIAN SENGKETA PENGADAAN TANAH GUNA PEMBANGUNAN BANDAR UDARA INTERNASIONAL BERBASIS NILAI KEADILAN SOSIAL." NOTARIUS 12, no. 1 (June 13, 2019): 83. http://dx.doi.org/10.14710/nts.v12i1.23764.
Повний текст джерелаАнотація:
In resolving land acquisition disputes for the public interest, it is fitting for the state to pay attention to values outside of the rule of law itself, including the value of social justice and the value of benefits to guarantee the basic rights of affected communities. This study aims to find out what factors cause the settlement of land acquisition disputes in terms of juridical aspects not reflecting the value of justice and benefit for the parties and formulating land acquisition dispute resolution models in a legal socio perspective that can realize the value of social justice and benefits for party. an appropriate method is needed that can accommodate the value of social justice and the benefits in resolving the dispute, among others, promoting the Consensus Meeting and the Need for Alternative Dispute Resolution (ADR) as an alternative solution. In addition, the need to calculate non-physical losses in the assessment of compensation for people who have lost their livelihoods due to land acquisition projects Keywords: Land Acquisition, Land Dispute Settlement, Public Interest AbstrakDalam penyelesaian sengketa pengadaan tanah untuk kepentingan umum sudah sepatutnya negara memperhatikan nilai-nilai diluar daripada aturan hukum itu sendiri, diantaranya nilai keadilan sosial dan nilai kemanfaatan untuk menjamin hak-hak dasar masyarakat terdampak. Penelitian ini bertujuan untuk untuk mengetahui faktor apa saja yang menyebabkan penyelesaian sengketa pengadaan tanah tersebut ditinjau dari aspek yuridis belum mencerminkan nilai keadilan dan kemanfaatan bagi para pihak sertaa merumuskan model penyelesaian sengketa pengadaan tanah dalam perspektif socio legal yang dapat mewujudkan nilai keadilan sosial dan kemanfaatan bagi para pihak. dibutuhkan suatu metode yang tepat yang dapat mengakomodasi nilai keadilan sosial dan kemanfaatan dalam penyelesaian sengketa tersebut diantaranya mengedepankan Musyawarah Mufakat dan Perlunya Alternative Dispute Resolution (ADR) sebagai solusi alternatif.. Selain itu, perlunya memperhitungkan kerugian non fisik dalam penilaian ganti rugi sehingga, terdapat solusi bagi masyarakat yang kehilangan mata pencaharianya akibat proyek pengadaan tanah Kata Kunci : Pengadaan Tanah, Penyelesaian Sengketa Tanah , Kepentingan Umum
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Bieri, Sandra de Vito. "The application of EU law by arbitral tribunals seated in Switzerland." ASA Bulletin 35, Issue 1 (March 1, 2017): 55–66. http://dx.doi.org/10.54648/asab2017005.
Повний текст джерелаАнотація:
Arbitral tribunals with seat in Switzerland are required to apply EU law under various conditions: It seems fairly clear that the arbitral tribunal needs to apply EU law, if the parties have chosen the law of an EU member state as lex causae, as EU law forms in this case part of the chosen law. The same applies when the parties have forgone to make a choice of law and the closest connection test results in the application of the law of an EU member state. In case the parties have chosen a third state’s law as lex causae, the arbitral tribunal needs to consider EU law, if a party invokes its application. Last, the arbitral tribunal may in some instances apply EU law ex officio, even if none of the parties have invoked the application of EU law. Although the arbitral tribunal may be required to apply EU law, the failure to apply or the wrong application of EU law does not necessarily result in setting aside of the award by the Swiss Federal Supreme Court. The failure to apply or the wrong application of EU law does not violate public policy. Hence, a challenge of the arbitral award based on art. 190 (2) e PILA will be unsuccessful. This holds also true if the arbitral tribunal decides not to apply EU competition law, as the Swiss Federal Supreme Court does not consider EU competition law part of public policy. The failure to apply EU law by the arbitral tribunal will only then result in a successful challenge of the arbitral award based on art. 190 (2) b PILA, if the arbitral tribunal found that EU law would be applicable to the dispute but denies its jurisdiction to decide the EU law issue.