Search results for: alternative dispute
3783 Alternative Dispute Resolution in the Settlement of Environmental Disputes in South Africa
Authors: M. van der Bank, C. M. van der Bank
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Alternative Dispute Resolution denotes all forms of dispute resolution other than litigation or adjudication through the courts. This definition of Alternative Dispute Resolution, however, makes no mention of a vital consideration. ADR is the generally accepted acronym for alternative dispute resolution. Despite the choice not to proceed before a court or statutory tribunal, ADR will still be regulated by law and by the Constitution. Fairness is one of the core values of the South African constitutional order. Environmental disputes occur frequently, but due to delays and costs, ADR is a mechanism to resolve this kind of disputes which is a resolution of non-judicial mechanism. ADR can be used as a mechanism in environmental disputes that are less expensive and also more expeditious than formal litigation. ADR covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. In so far as this may involve the selection or design of mechanisms and processes other than formal litigation, these mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. A variety of ADR methods have been developed to deal with numerous problems encountered during environmental disputes. The research questions are: How can ADR facilitate environmental disputes in South Africa? Are they appropriate? And what improvements should be made?Keywords: alternative dispute, environmental disputes, non-judicial, resolution and settlement
Procedia PDF Downloads 2313782 A Review of the Fundamental Aspects and Dimensions of Alternative Dispute Resolution (ADR) as Important Components in the Promotion of Social Justice in Nigeria
Authors: Odoh Ben Uruchi
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Access to Justice implies access to social and distributive Justice. Access to social justice in Nigeria remains an illusion where cases last in courts for unduly long period of time, as is currently the situation in the country. As the popular saying goes– justice delayed is justice denied. It is, however, important to underscore the point that these perspectives are not necessarily disconnected since the extent to which one can have distributive justice in any system is largely determined by the level and effectiveness of social justice in the country. Generally, Alternative Dispute Resolution (ADR) Processes are increasingly being accepted in Nigeria as appropriate mechanisms for resolving disputes. While some jurisdictions have institutionalized ADR through the concept of a Multidoor Courthouse, many other are at different stages of doing same. With these developments, it is obvious that stakeholders in the administration of justice in Nigeria, can no longer be indifferent about understanding and fully mainstreaming ADR into their various activities and professional practice. Any framework for promoting social justice in Nigeria should therefore of necessity include provision of avenues for use of ADR in the protection and enforcement of citizen’s rights. The constitutional and other legal provisions that guarantee various rights of citizens cannot of itself ensure the enjoyment of the rights in the absence of an effective framework for dispute resolution. Excessive reliance on litigation and other adversarial approaches will also fail to ensure a sound regime of social justice. There should be structured mainstreaming of alternative dispute resolution mechanisms in justice delivery if the society must provide and guarantee social justice to the citizens. This paper seeks to address some of the fundamental issues affecting the perception, knowledge and skills of ADR in the provision of social justice. In doing this, the paper proposes to unlock the full enormous potentials of Alternative Dispute Resolution (ADR) in promoting access to justice in Nigeria.Keywords: aspects, dimensions, alternative dispute resolution, social justice
Procedia PDF Downloads 4293781 Mediation in Turkey
Authors: Ibrahim Ercan, Mustafa Arikan
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In recent years, alternative dispute resolution methods have attracted the attention of many country’s legislators. Instead of solving the disputes by litigation, putting the end to a dispute by parties themselves is more important for the preservation of social peace. Therefore, alternative dispute resolution methods (ADR) have been discussed more intensively in Turkey as well as the whole world. After these discussions, Mediation Act was adopted on 07.06.2012 and entered into force on 21.06.2013. According to the Mediation Act, it is only possible to mediate issues arising from the private law. Also, it is not compulsory to go to mediation in Turkish law, it is optional. Therefore, the parties are completely free to choose mediation method in dispute resolution. Mediators need to be a lawyer with experience in five years. Therefore, it is not possible to be a mediator who is not lawyers. Beyond five years of experience, getting education and success in exams about especially body language and psychology is also very important to be a mediator. If the parties compromise as a result of mediation, a document is issued. This document will also have the ability to exercising availability under certain circumstances. Thus, the parties will not need to apply to the court again. On the contrary, they will find the opportunity to execute this document, so they can regain their debts. However, the Mediation Act has entered into force in a period of nearly two years of history; it is possible to say that the interest in mediation is not at the expected level. Therefore, making mediation mandatory for some disputes has been discussed recently. At this point, once the mediation becomes mandatory and good results follows it, this institution will be able to find a serious interest in Turkey. Otherwise, if the results will not be satisfying, the mediation method will be removed.Keywords: alternative dispute resolution methods, mediation act, mediation, mediator, mediation in Turkey
Procedia PDF Downloads 3563780 Settlement of Dispute and the Islamic Financial Institutions
Authors: Yusuf Sani Abubakar
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This paper investigates mechanisms of settlement of disputes at the Islamic Financial Institutions (IFIs). Dispute settlement at the Islamic Financial Institutions (IFIs) can be both through litigation as well as Alternative Dispute Resolution (ADR). The paper aims to investigate how disputes are settled at the Islamic Financial Institutions (IFIs), as it is natural to have disagreements between different parties involved in the business of Islamic Financial Institutions (IFIs). The paper adopts a qualitative methodology where the sources are taken from journals, books, websites etc. In analyzing the data obtained from the sources, content analysis will be used. In addition to writings on this topic by various writers, this paper will add to the literature and will recommend certain effective ways of solving disputes arising between parties participating in the business of Islamic Financial Institutions (IFIs).Keywords: Islamic finance, dispute resolution, Islamic financial institutions, litigation
Procedia PDF Downloads 1613779 The Social Process of Alternative Dispute Resolution and Collective Conciliation: Unveiling the Theoretical Framework
Authors: Adejoke Yemisi Ige
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This study presents a conceptual analysis and investigation into the development of a systematic framework required for better understanding of the social process of Alternative Dispute Resolution (ADR) and collective conciliation. The critical examination presented in this study is significant because; it draws on insight from ADR, negotiation and collective bargaining literature and applies it in our advancement of a methodical outline which gives an insight into the influence of the key actors and other stakeholder strategies and behaviours during dispute resolution in relation to the outcomes which is novel. This study is qualitative and essentially inductive in nature. One of the findings of the study confirms the need to consider ADR and collective conciliation within the context of the characteristic conditions; which focus on the need for some agreement to be reached. Another finding of the study shows the extent which information-sharing, willingness of the parties to negotiate and make concession assist both parties to attain resolution. This paper recommends that in order to overcome deadlock and attain acceptable outcomes at the end of ADR and collective conciliation, the importance of information exchange and sustenance of trade union and management relationship cannot be understated. The need for trade unions and management, the representatives to achieve their expectations in order to build the confidence and assurance of their respective constituents is essential. In conclusion, the analysis presented in this study points towards a set of factors that together can be called the social process of collective conciliation nevertheless; it acknowledges that its application to collective conciliation is new.Keywords: alternative dispute resolution, collective conciliation, social process, theoretical framework, unveiling
Procedia PDF Downloads 1493778 Bias Minimization in Construction Project Dispute Resolution
Authors: Keyao Li, Sai On Cheung
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Incorporation of alternative dispute resolution (ADR) mechanism has been the main feature of current trend of construction project dispute resolution (CPDR). ADR approaches have been identified as efficient mechanisms and are suitable alternatives to litigation and arbitration. Moreover, the use of ADR in this multi-tiered dispute resolution process often leads to repeated evaluations of a same dispute. Multi-tiered CPDR may become a breeding ground for cognitive biases. When completed knowledge is not available at the early tier of construction dispute resolution, disputing parties may form preconception of the dispute matter or the counterpart. This preconception would influence their information processing in the subsequent tier. Disputing parties tend to search and interpret further information in a self-defensive way to confirm their early positions. Their imbalanced information collection would boost their confidence in the held assessments. Their attitudes would be hardened and difficult to compromise. The occurrence of cognitive bias, therefore, impedes efficient dispute settlement. This study aims to explore ways to minimize bias in CPDR. Based on a comprehensive literature review, three types of bias minimizing approaches were collected: strategy-based, attitude-based and process-based. These approaches were further operationalized into bias minimizing measures. To verify the usefulness and practicability of these bias minimizing measures, semi-structured interviews were conducted with ten CPDR third party neutral professionals. All of the interviewees have at least twenty years of experience in facilitating settlement of construction dispute. The usefulness, as well as the implications of the bias minimizing measures, were validated and suggested by these experts. There are few studies on cognitive bias in construction management in general and in CPDR in particular. This study would be the first of its type to enhance the efficiency of construction dispute resolution by highlighting strategies to minimize the biases therein.Keywords: bias, construction project dispute resolution, minimization, multi-tiered, semi-structured interview
Procedia PDF Downloads 1823777 The Regulation of Alternative Dispute Resolution Institutions in Consumer Redress and Enforcement: A South African Perspective
Authors: Jacolien Barnard, Corlia Van Heerden
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Effective and accessible consensual dispute resolution and in particular alternative dispute resolution, are central to consumer protection legislation. In this regard, the Consumer Protection Act 68 of 2008 (CPA) of South Africa is no exception. Due to the nature of consumer disputes, alternative dispute resolution (in theory) is an effective vehicle for the adjudication of disputes in a timely manner avoiding overburdening of the courts. The CPA sets down as one of its core purposes the provision of ‘an accessible, consistent, harmonized, effective and efficient system of redress for consumers’ (section 3(1)(h) of the CPA). Section 69 of the Act provides for the enforcement of consumer rights and provides for the National Consumer Commission to be the Central Authority which streamlines, adjudicates and channels disputes to the appropriate forums which include Alternative Dispute Resolution Agents (ADR-agents). The purpose of this paper is to analyze the regulation of these enforcement and redress mechanisms with particular focus on the Central Authority as well as the ADR-agents and their crucial role in successful and efficient adjudication of disputes in South Africa. The South African position will be discussed comparatively with the European Union (EU) position. In this regard, the European Union (EU) Directive on Alternative Dispute Resolution for Consumer Disputes (2013/11/EU) will be discussed (The ADR Directive). The aim of the ADR Directive is to solve contractual disputes between consumers and traders (suppliers or businesses) regardless of whether the agreement was concluded offline or online or whether or not the trader is situated in another member state (Recitals 4-6). The ADR Directive provides for a set of quality requirements that an ADR body or entity tasked with resolving consumer disputes should adhere to in member states which include regulatory mechanisms for control. Transparency, effectiveness, fairness, liberty and legality are all requirements for a successful ADR body and discussed within this chapter III of the Directive. Chapters III and IV govern the importance of information and co-operation. This includes information between ADR bodies and the European Commission (EC) but also between ADR bodies or entities and national authorities enforcing legal acts on consumer protection and traders. (In South Africa the National Consumer Tribunal, Provincial Consumer Protectors and Industry ombuds come to mind). All of which have a responsibility to keep consumers informed. Ultimately the papers aims to provide recommendations as to the successfulness of the current South African position in light of the comparative position in Europe and the highlight the importance of proper regulation of these redress and enforcement institutions.Keywords: alternative dispute resolution, consumer protection law, enforcement, redress
Procedia PDF Downloads 2223776 Process for Analyzing Information Security Risks Associated with the Incorporation of Online Dispute Resolution Systems in the Context of Conciliation in Colombia
Authors: Jefferson Camacho Mejia, Jenny Paola Forero Pachon, Luis Carlos Gomez Florez
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The innumerable possibilities offered by the use of Information Technology (IT) in the development of different socio-economic activities has made a change in the social paradigm and the emergence of the so-called information and knowledge society. The Colombian government, aware of this reality, has been promoting the use of IT as part of the E-government strategy adopted in the country. However, it is well known that the use of IT implies the existence of certain threats that put the security of information in the digital environment at risk. One of the priorities of the Colombian government is to improve access to alternative justice through IT, in particular, access to Alternative Dispute Resolution (ADR): conciliation, arbitration and friendly composition; by means of which it is sought that the citizens directly resolve their differences. To this end, a trend has been identified in the use of Online Dispute Resolution (ODR) systems, which extend the benefits of ADR to the digital environment through the use of IT. This article presents a process for the analysis of information security risks associated with the incorporation of ODR systems in the context of conciliation in Colombia, based on four fundamental stages identified in the literature: (I) Identification of assets, (II) Identification of threats and vulnerabilities (III) Estimation of the impact and 4) Estimation of risk levels. The methodological design adopted for this research was the grounded theory, since it involves interactions that are applied to a specific context and from the perspective of diverse participants. As a result of this investigation, the activities to be followed are defined to carry out an analysis of information security risks, in the context of the conciliation in Colombia supported by ODR systems, thus contributing to the estimation of the risks to make possible its subsequent treatment.Keywords: alternative dispute resolution, conciliation, information security, online dispute resolution systems, process, risk analysis
Procedia PDF Downloads 2343775 OAS and Interstate Dispute Resolution at the Beginning of the 21st Century: General Pattern and Peculiarities
Authors: Victor Jeifets, Liliia Khadorich
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The paper describes the OAS role in dispute resolution. The authors make an attempt to identify a general pattern of the OAS activities within the peaceful settlement of interstate conflicts, in the beginning of 21st century, as well as to analyze some features of Honduras–Belize, Nicaragua–Honduras, Honduras–El Salvador, Costa-Rica–Nicaragua, Colombia–Ecuador cases.Keywords: OAS, peace maintenance, border dispute, dispute resolution, peaceful settlement
Procedia PDF Downloads 4843774 Positivism Legal Controversy: Dilemma Carok as Madura’s Culture through Indigenous Dispute Settlement in Indonesia
Authors: M. Yasin Al-Arif, Mohammad Faisol Soleh
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The Indonesia’s Constitution in Article 18b explained that the state recognizes and respects indigenous peoples and their traditional rights that are guaranteed by the law. Despite already guaranteed its existence; in practice such indigenous law is often considered contrary to positive law by legal experts. It is because of legal positivism paradigm which requires the written law as the main reference for the settlement of legal disputes. Carok’s culture is one of the indigenous cultures of Madura to resolve legal disputes that still thrives until today. Carok’s culture is in outside the legal process, and through a fight between the disputing parties until one dies. On the other hand, the legal positivism does not give place to accommodate Carok as indigenous dispute settlement, until it must be solved through trial. This way of settlement has not been successfully satisfying the indigenous people, thus although it has been done through its verdict in the trial, but Carok still be used by them. From the explanation above, Carok’s culture must be accommodated as the main settlement process and legal process of law as the alternative to the effectiveness of dispute resolution in Madura Indonesia.Keywords: carok, dispute settlement, legal positivism, madura’s culture
Procedia PDF Downloads 3383773 Assessing the Role of Failed-ADR in Civil Litigation
Authors: Masood Ahmed
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There is a plethora of literature (including judicial and extra-judicial comments) concerning the virtues of alternative dispute resolution processes within the English civil justice system. Lord Woolf in his Access to Justice Report ushered in a new pro-ADR philosophy and this was reinforced by Sir Rupert Jackson in his review of civil litigation costs. More recently, Briggs LJ, in his review of the Chancery Court, reiterated the significant role played by ADR and the need for better integration of ADR processes within the Chancery Court. His Lordship also noted that ADR which had failed to produce a settlement (i.e. a failed-ADR) continued to play a significant role in contributing to a ‘substantial narrowing of the issues or increased focus on the key issues’ which were ‘capable of assisting both the parties and the court in the economical determination of the dispute at trial.’ With the assistance of empirical data, this paper investigates the nature of failed-ADR and, in particular, assesses the effectiveness of failed-ADR processes as a tool in: (a) narrowing the legal and/or factual issues which may assist the courts in more effective and efficient case management of the dispute; (b) assisting the parties in the future settlement of the matter. This paper will also measure the effectiveness of failed-ADR by considering the views and experiences of legal practitioners who have engaged in failed-ADR.Keywords: English civil justice system, alternative dispute resolution processes, civil court process, empirical data from legal profession regarding failed ADR
Procedia PDF Downloads 4593772 Materialisation of Good Governance Concept by Effective Investment Dispute Resolution in the European Union
Authors: Jagna Mucha, Anna Kańciak
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The concept of good governance constitutes a wide perspective for academic discussion, because it provides a substantial theoretical background for settling many practical problems faced contemporarily by the EU. The basic assumptions of good governance have basically remained unchanged since the 90’s, when the concept was introduced by the World Bank, although the scholarly discussions reveal new facets of the said concept, when related to specific domains. The paper discusses the application of the specific elements of the concept of good governance in the field of the international investment law. Specifically, it seeks to demonstrate that the concept of good governance regulates the issue of international investments in that, among others, it requires the application of the alternative dispute resolution in order to make the investment law enforceable in the best possible way.Keywords: dispute resolution, european union, investments, good governance
Procedia PDF Downloads 3493771 The Role and Function of National Land Authority as Mediator in Land Dispute Settlements in Indonesia
Authors: Nia Kurniati, Efa Laela Fakhriah
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The regulation in Indonesia provides space for the land dispute to be settled outside the court by the government through National Land. In this case, the bureaucrat of Badan Pertanahan Nasional (BPN) acts as mediator to reach a fair agreement between the disputing parties. Land dispute is from a party who denies the ownership of the other party of a land and denies legal-technical facts written on land certificate published by BPN. Appointing the bureaucrat of BPN as mediator in dispute settlements may possibly create conflict of interest since the object. It has become a concern since bureaucrat of BPN acts as mediator, he will be bias and partial in assisting the dispute settlement, thus the spirit and purposes of mediation will be hampered. This issue triggers to be thoroughly examined further in a relation with the role and function of BPN as land dispute mediator. The methodology used in this research is a normative-legal one with qualitative-legal analytical method. The object of this research is in the form of random sampling of land dispute cases being occurred in some areas. Several principles in mediation have to be made as the base of the consideration to appoint bureaucrat of BPN as mediator since the mediator is an impartial third party, working with both disputing parties and assisting them to reach a fair resolution written in agreement as a foundation of land dispute settlement. The existence of BPN as mediator in land dispute settlement encounters conflict of interest which uphold legal uncertainty to act objectively.Keywords: Indonesia, land dispute, mediator, national land authority
Procedia PDF Downloads 3043770 The Growth of E-Commerce and Online Dispute Resolution in Developing Nations: An Analysis
Authors: Robin V. Cupido
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Online dispute resolution has been identified in many countries as a viable alternative for resolving conflicts which have arisen in the so-called digital age. This system of dispute resolution is developing alongside the Internet, and as new types of transactions are made possible by our increased connectivity, new ways of resolving disputes must be explored. Developed nations, such as the United States of America and the European Union, have been involved in creating these online dispute resolution mechanisms from the outset, and currently have sophisticated systems in place to deal with conflicts arising in a number of different fields, such as e-commerce, domain name disputes, labour disputes and conflicts arising from family law. Specifically, in the field of e-commerce, the Internet’s borderless nature has served as a way to promote cross-border trade, and has created a global marketplace. Participation in this marketplace boosts a country’s economy, as new markets are now available, and consumers can transact from anywhere in the world. It would be especially advantageous for developing nations to be a part of this global marketplace, as it could stimulate much-needed investment in these nations, and encourage international co-operation and trade. However, for these types of transactions to proliferate, an effective system for resolving the inevitable disputes arising from such an increase in e-commerce is needed. Online dispute resolution scholarship and practice is flourishing in developed nations, and it is clear that the gap is widening between developed and developing nations in this regard. The potential for implementing online dispute resolution in developing countries has been discussed, but there are a number of obstacles that have thus far prevented its continued development. This paper aims to evaluate the various political, infrastructural and socio-economic challenges faced in developing nations, and to question how these have impacted the acceptance and development of online dispute resolution, scholarship and training of online dispute resolution practitioners and, ultimately, developing nations’ readiness to participate in cross-border e-commerce.Keywords: developing countries, feasibility, online dispute resolution, progress
Procedia PDF Downloads 2993769 Alternate Dispute Resolution: Expeditious Justice
Authors: Uzma Fakhar, Osama Fakhar, Aamir Shafiq Ch
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Methods of alternate dispute resolution (ADR) like conciliation, arbitration, mediation are the supplement to ensure inexpensive and expeditious justice in a country. Justice delayed has not only created chaos, but an element of rebellious behavior towards judiciary is being floated among people. Complexity of traditional judicial system and its diversity has created an overall coherence. Admittedly, In Pakistan the traditional judicial system has failed to achieve its goals which resulted in the backlog of cases pending in courts, resultantly even the critics of alternate dispute resolution agree to restore the spirit of expeditious justice by reforming the old Panchayat system. The Government is keen to enact certain laws and make amendments to facilitate the resolution of a dispute through a simple and faster ADR framework instead of a lengthy and exhausting complex trial in order to create proliferation and faith in alternate dispute resolution. This research highlights the value of ADR in a country like Pakistan for revival of the confidence of the people upon the judicial process and a useful judicial tool to reduce the pressure on the judiciary.Keywords: alternate dispute resolution, development of law, expeditious justice, Pakistan
Procedia PDF Downloads 2163768 The Dubai World Islamic Finance Arbitration Center and Jurisprudence Office as the Dispute Resolution Center and Mechanism for the Islamic Finance Industry
Authors: Camille Paldi
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As the Islamic finance industry is growing annually at a rate of 10% to 15% per year, it is imperative that a unique, independent legal framework is established in order to effectively adjudicate Islamic finance disputes. Currently, Islamic finance disputes are being adjudicated in inadequate civil and common law courts and arbitration centers where the contracts in dispute are being transformed from Islamic to conventional transactions. Through case analysis combined with an exploration of the efficacy of existing arbitration centers and dispute resolution methods available to Islamic finance, this paper will seek to reveal that the Islamic finance industry currently lacks an adequate dispute resolution mechanism and facility to adjudicate disputes arising from Islamic finance contracts. Hence, now is the time for the Dubai World Islamic Finance Arbitration Center (DWIFAC) and Jurisprudence Office (DWIFACJO) as the Dispute Resolution Center and Mechanism for the Islamic Finance Industry.Keywords: Islamic finance, dispute resolution, Dubai world Islamic finance arbitration center, jurisprudence office
Procedia PDF Downloads 4103767 The Concept of Commercial Dispute Resolution through the Court in Indonesia
Authors: Anita Afriana, Efa Laela Fakhriah
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The law of civil procedure which is currently in effect in Indonesia is still referring to the rules applicable at the time of the Dutch East Indies, that is Het Herziene Indonesisch Reglement (HIR) and Reglement Tot Regeling Van Het Rechtswezen In De gewesten Buiten Java En Madura (RBg). With the fact that the enactment of this has been very long, there are some things that are no longer suitable with the circumstances and needs of the community in seeking justice today. Therefore, a new regulation on the law of civil procedure is required and the discussions of the draft are currently being carried out. The fast examination of dispute in civil procedure is required to accelerate the growth of Indonesia’s economy by accelerating the dispute resolution method (time efficiency). With the provision of the quick examination on commercial disputes mentioned above, it is expected to benefit the community in order to obtain a tool of dispute resolution efficiently and effectively, so as making justice fast and inexpensive, especially for the resolution of commercial disputes.Keywords: commercial dispute, civil law procedure, court, Indonesia
Procedia PDF Downloads 5043766 Revisiting Dispute Resolution Mechanisms in the Southern African Development Community: A Proposal for Synchronization
Authors: Tapiwa Shumba, Nyaradzo D. T. Karubwa
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Dispute resolution is the plinth of regional integration initiatives anchored on the rule of law and compliance with obligations. Without effective and reliable despite resolution mechanisms, it may be difficult to foster deeper integration. Within the Southern African Development Community (SADC) legal and institutional framework exists an apparent recognition that dispute resolution is an integral part of the regional integration. Almost all legal instruments of SADC include some provision for dispute resolution. Institutionally, the somewhat now defunct SADC Tribunal is meant to be the fulcrum for resolving disputes that arise under SADC instruments. However, after a closer analysis of the substance of these legal provisions and the attendant procedural mechanisms for addressing disputes, an argument can be made that dispute resolution in SADC is somewhat scant, fragmented and neglected. In most instruments, the common provision on dispute resolution appears to be a ‘mid-night clause’. In other instruments which have specialised provisions and procedures, questions of practicality and genius cannot be avoided. Worse still there now appears to be a lack of magnanimity between the substantive provisions in various instruments and the role of the transformed Tribunal. This scant, fragmented and neglected dispute resolution system may have an impact on the observance of the rule of law and compliance with obligations in the rules-based SADC system. This all, in turn, has an effect on the common agenda for deeper regional integration. This article seeks to expose this scant, fragmented and neglected SADC dispute resolution system and to propose a harmonised system that addresses these challenges. A ‘one stop shop’ system under a strengthened SADC tribunal is proposed as a responsive solution.Keywords: regional integration, harmonisation, SADC tribunal, dispute resolution
Procedia PDF Downloads 1833765 The Role of BPSK (Consumer Dispute Settlement Body) in the Monitoring of Standard Clause Inclusion within Indonesian Customer Protection Law
Authors: Deviana Yuanitasari
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The rapid development of world commerce and trade nowadays has created fast-paced demand in every business activities and transactions. That also includes the need for ready to use and practical form of standard contract. For the company or business owner, the use of standard contract is an alternative way to achieve economic goals faster, effectively and efficiently. In the other hand, for the consumer the practice of using standard contract usually unfavorable, because the contract clauses usually have been defined by the company and cannot be individually negotiated. That means consumer cannot influence the substances of the contract clauses. The purpose of this study is to get deeper understanding and analyze the role of Consumer Dispute Settlement Body in the monitoring of standard clause inclusion by businesses and industries within the context of practicing consumer protection law. Furthermore, this study will focus on the procedure of sanction and the effectiveness of the sanction for the business practitioners which disregard the inclusion of the prohibited standard clause. Therefore, this study will depict the law issues and other phenomenon that related with the role of Consumer Dispute Settlement Body in monitoring the inclusion of standard clause and procedure of sanction for the business practitioners that still use exemption clause within Consumer Protection Law System. This study results that BPSK has been assigned to monitor the inclusion of standard clause and settle consumer dispute. At this stage, BPSK role is passive, which means BPSK only takes an action if there are consumer complaints. The procedure of sanction is not part of BPSK tasks, since should there be a violation of standard clause; BPSK can only ask the business practitioners to remove the prohibited clause and not give a sanction. As a result, the procedure of sanction rule for the Standard Clause violation in this context can be considered as ineffective.Keywords: standard contract, standard clause, consumer protection law, consumer dispute settlement body
Procedia PDF Downloads 3223764 Settlements of Disputes in the Context of Islamic (Sharia) Economics in Indonesia and Egypt: A Comparative Analysis
Authors: Gemala Dewi, Wirdyaningsih, Farida Prihatini
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The development of sharia business activities at present has solidified its societal mark and has crossed influence between several nations. In the practice, there may be disputes, breaches and other forms of conflict that occurred along the way. In the meantime, alternative settlements of disputes are utilized differently between nations in the context of their political, social, economic, legal and infrastructural (technology and transportation) scope. Besides the various conditions, there is a common driving factor, which is a consequence of the need for businesses to settle conflicts in an efficient and cost-efficient manner. This factor is paired symbiotically with the limitations of the court and legal processes. Knowing this, Indonesia and Egypt represent countries that have similar social, political, economic and legal conditions. This academic research establishes a normative analysis that looks and compares the rules that regulate the prospects and challenges in the regards of dispute settlements in reference to sharia economics in Indonesia and Egypt. This work recommends that sharia economics dispute settlement is significant to be incorporated in both Indonesian and Egyptian legal systems.Keywords: sharia economics, dispute resolution, Indonesia, Egypt
Procedia PDF Downloads 3273763 Toward Green Infrastructure Development: Dispute Prevention Mechanisms along the Belt and Road and Beyond
Authors: Shahla Ali
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In the context of promoting green infrastructure development, new opportunities are emerging to re-examine sustainable development practices. This paper presents an initial exploration of the development of community-investor dispute prevention and facilitation mechanisms in the context of the Belt and Road Initiative (BRI) spanning Asia, Africa, and Europe. Given the widescale impact of China’s multi-jurisdictional development initiative, learning how to coordinate with local communities is vital to realizing inclusive and sustainable growth. In the 20 years since the development of the first multilateral community-investor dispute resolution mechanism developed by the International Finance Centre/World Bank, much has been learned about public facilitation, community engagement, and dispute prevention during the early stages of major infrastructure development programs. This paper will explore initial findings as they relate to initiatives underway along the BRI within the Asian Infrastructure Investment Bank and the Asian Development Bank. Given the borderless nature of sustainability concerns, insights from diverse regions are critical to deepening insights into best practices. Drawing on a case-based methodology, this paper will explore the achievements, challenges, and lessons learned in community-investor dispute prevention and resolution for major infrastructure projects in the greater China region.Keywords: law and development, dispute prevention, sustainable development, mitigation
Procedia PDF Downloads 983762 Virtual Conciliation in Colombia: Evaluation of Maturity Level within the Framework of E-Government
Authors: Jenny Paola Forero Pachón, Sonia Cristina Gamboa Sarmiento, Luis Carlos Gómez Flórez
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The Colombian government has defined an e-government strategy to take advantage of Information Technologies (IT) in order to contribute to the building of a more efficient, transparent and participative State that provides better services to citizens and businesses. In this regard, the Justice sector is one of the government sectors where IT has generated more expectation considering that the country has a judicial processes backlog. This situation has led to the search for alternative forms of access to justice that speed up the process while providing a low cost for citizens. To this end, the Colombian government has authorized the use of Alternative Dispute Resolution methods (ADR), a remedy where disputes can be resolved more quickly compared to judicial processes while facilitating greater communication between the parties, without recourse to judicial authority. One of these methods is conciliation, which includes a special modality that takes advantage of IT for the development of itself known as virtual conciliation. With this option the conciliation is supported by information systems, applications or platforms and communications are provided through it. This paper evaluates the level of maturity in how the service of virtual conciliation is under the framework of this strategy. This evaluation is carried out considering Shahkooh's 5-phase model for e-government. As a result, it is evident that in the context of conciliation, maturity does not reach the necessary level in the model so that it can be considered as virtual conciliation; therefore, it is necessary to define strategies to maximize the potential of IT in this context.Keywords: alternative dispute resolution, e-government, evaluation of maturity, Shahkooh model, virtual conciliation
Procedia PDF Downloads 2503761 Different Approaches to the Study of Territorial Dispute between China and India
Authors: Albina Muratbekova
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One of the main tensions and challenges in the development of Sino-Indian relation is the demarcation of its frontiers. The fact that throughout the history borders had never been demarcated on ground occur a dispute between China and India after receiving sovereignty. Boundaries of India and China are divided into three sectors: Eastern, Middle and Western. The middle sector runs from India’s Uttar Pradesh to the Punjab, 545 km length of the Line of Actual Control, the lines of which was confirmed at the 9th meeting of the Expert Group held in 2001, in New Delhi. Other two sectors are still not determined and cause disputes. A western sector of the frontier is the Aksai Chin plateau, covers areas of Ladakh, Tibet, and Sinkiang. Another disputed area lies in the Eastern sector in the Himalayan region, which after 1986 became the Indian state called Arunachal Pradesh. There are two different approaches in the ways of resolving the border dispute. Chinese side keeps an opinion that the border dispute must be resolved in a timely matter unless it is favorable for China, the resolution can be left to a later generation. While India’s government due to security reasons is eager to demarcate the border. In order to study this conflict was used as a descriptive-comparative-analytical method. Also, it was done a profound analyze of conflict nature.Keywords: border dispute, China, India, territorial claim
Procedia PDF Downloads 3013760 Juridically Secure Trade Mechanisms for Alternative Dispute Resolution in Transnational Business Negotiations
Authors: Linda Frazer
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A pluralistic methodology focuses on promoting an understanding that an alternative juridical framework for the regulation of transnational business negotiations (TBN) between private business parties is fundamentally required. This paper deals with the evolving assessment of the doctoral research of the author which demonstrated that due to insufficient juridical tools, negotiations are commonly misunderstood within the complexity of pluralistic and conflicting legal regimes. This inadequacy causes uncertainty in the enforcement of legal remedies, leaving business parties surprised. Consequently, parties cannot sufficiently anticipate when and how legal rights and obligations are created, often counting on oral or incomplete agreements which may lead to the misinterpretation of the extent of their legal rights and obligations. This uncertainty causes threats to business parties for fear of creating unintended legal obligations or, conversely, that law will not enforce intended agreements for failure to pass the tests of contractual validity. A need to find a manner to set default standards of communications and standards of conduct to monitor our evolving global trade would aid law to provide the security, predictability and foreseeability during alternative dispute resolution required by TBN parties. The conclusion of this study includes a proposal of new trade mechanisms, termed 'Bills of Negotiations' (BON) to enhance party autonomy and promote the ability for TBN parties to self-regulate within the boundaries of law. BON will be guided by a secure juridical institutionalized setting that caters to guiding communications during TBN and resolving disputes that arise along the negotiation processes on a fast track basis.Keywords: alternative resolution disputes, ADR, good faith, good faith, juridical security, legal regulation, trade mechanisms, transnational business negotiations
Procedia PDF Downloads 1393759 Identifying Reforms Required in Construction Contracts from Resolved Disputed Cases
Authors: K. C. Iyer, Yogita Manan Bindal, Sumit Kumar Bakshi
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The construction industry is plagued with disputes and litigation in India with many stalled projects seeking dispute resolution. This has an adverse effect on the performance and overall project delivery and impacts future investments within the industry. While construction industry is the major driver of growth, there has not been major reforms in the government construction contracts. The study is aimed at identifying the proactive means of dispute avoidance, focusing on reforms required within the construction contracts, by studying 49 arbitration awards of construction disputes. The claims presented in the awards are aggregated to study the causes linked to the contract document and are referred against the prospective recommendation and practices as surveyed from literature review of research papers. Within contract administration, record keeping has been a major concern as they are required by the parties to substantiate the claims or the counterclaims and therefore are essential in any dispute redressal process. The study also observes that the right judgment is inhibited when the record keeping is improper and due to lack of coherence between documents, the dispute resolution period is also prolonged. The finding of the research will be relevant to industry practitioners in contract drafting with a view to avoid disputes.Keywords: construction contract, contract administration, contract management, dispute avoidance
Procedia PDF Downloads 2593758 Development and State in Brazil: How Do Some Institutions Think and Influence These Issues
Authors: Alessandro Andre Leme
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To analyze three Brazilian think tanks: a) Fernando Henrique Foundation; b) Celso Furtado International Center; c) Millennium Institute and how they dispute interpretations about the type of development and State that should be adopted in Brazil. We will make use of Network and content analysis of the sites. The analyzes show a dispute that goes from a defense of ultraliberalism to developmentalism, going through a hybrid between State and Market voiced in each of the Think Tanks.Keywords: sociopolitical and economic thinking, development, strategies, intellectuals, state
Procedia PDF Downloads 1433757 Sea Border Dispute between Greece and Turkey in the Mediterrenean: Implications for Turkey’s Maritime Security and Its Military Spending
Authors: Aslihan Caliskan
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The term Mediterranean comes from the Latin “mediterraneus” (Medius, "middle" plus Terra, "land, earth"). For the ancient Romans, the Mediterranean was the center of the earth as they knew it. The desire to gain control of the Mediterranean has led to disputes between many nations throughout history, some of which continue to this day. The recent major natural gas discoveries in the Mediterranean have aggravated ongoing tensions in some neighboring countries. The sea border dispute between Turkey and Greece & Greek-Cypriot side is one of the most critical conflicts in the Mediterranean Sea region. This unresolved dispute has many implications for all countries involved, as well as for third parties that have direct or indirect interests in the region. The research question of this context is what are the implications of this controversial sea border problem on the maritime security of Turkey and its military spending. In this paper, the quantitative method is used. Records from the Turkish Defense Ministry, data from the Turkish naval forces have been obtained. In addition, literature research and the United Nations Convention on the Law of the Sea (UNCLOS) application cases were evaluated, and an incident analysis was carried out. This research shows that the sea border dispute issue has a significant impact on the Turkish military both in terms of the structures required to ensure maritime and border security, as well as rising military costs and its macroeconomic implications. The paper begins with a brief overview of relevant principles and methods applied for delimiting th esea borders. The paper continues with a brief description and a background of the sea border dispute between Turkey and Greece & Greek-Cypriot side in the light of the United Nations Convention on the Law of the Sea (UNCLOS). An analysis of the implications of the dispute on Turkey’s maritime security and its military spending is provided in the following chapters. The paper ends with concluding remarks of the author, including suggestions for the way forward.Keywords: sea border security, mediterranean sea, greece-turkey dispute, limitation of sea, united nations convention on the law of the sea (UNCLOS)
Procedia PDF Downloads 1823756 Mediation as an Effective Tool for Resolving Sports Disputes
Authors: Mohd Akram Shair Mohamad
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The relation to the infinite variety issues sprouting in sports or lex sportiva, like lex mercatoria in the early centuries, has now come of age and even begun a maturing process in the past thirty-five years or so. Lex sportiva now straddles sports management, sports medicine, tort, criminal law, employment contract, competition law and a host of multifarious activities related to sports. This has catapulted a host of legal issue and problems, demanding urgent legal solutions to actual or potential disputes. This paper discusses the nature and development of lex sportiva, and how it is able to resolve sports disputes. Resolving sports dispute via the tiresome, dilatory and expensive process of litigation is most unsuitable. Arbitration may not be equally a satisfactory solution. The paper strongly advocates the far the most effective and resolution friendly mode of settling sports disputes namely, mediation. In support it highlights numerous advantages mediation has to offer and with reference to many significant sports disputes which had been successfully resolved via mediation.Keywords: alternative dispute resolution, mediation, arbitration, litigation
Procedia PDF Downloads 4303755 Territorial Disputes behind the Declaration of Independence of Abkhazia and South Ossetia by Some Latin American States
Authors: Besik Goginava
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Several days later after the end of 2008 Russo-Georgian War, Venezuela and Nicaragua formally recognized the independence of Abkhazia and South Ossetia. In 2009-10 both countries established diplomatic relations with self-declared republics. It is a paradoxical fact that after neighboring Russia-Georgian conflict territories were internationally recognized by two Latin American states with ongoing territorial disputes. The Venezuela-Guyana territorial dispute which officially began in the early XIX century became conflict-ridden again in the late 1990s and 2000s. Venezuela has long claimed the land which comprises 40% of Guyana’s current territory. Territorial disputes of Nicaragua include dispute with Colombia over Caribbean Islands, with Costa Rica over the San Juan River and maritime dispute with Honduras. Based on historical and analytical research methods the purpose of this paper is to establish the relationship between the recognition of Abkhazia and South Ossetia by Venezuela and Nicaragua and Venezuela’s territorial dispute with Guyana, as well as Nicaragua’s with Colombia, Costa Rica and Honduras. The objective of the study is to investigate the factors that led Venezuela and Nicaragua to formally recognize Georgian conflict territories and how could their own territorial disputes affect on their decision.Keywords: Latin America, Georgia, Venezuela, Nicaragua, Abkhazia, South Ossetia
Procedia PDF Downloads 2373754 Role of Alternative Dispute Resolution (ADR) in Advancing UN-SDG 16 and Pathways to Justice in Kenya: Opportunities and Challenges
Authors: Thomas Njuguna Kibutu
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The ability to access justice is an important facet of securing peaceful, just, and inclusive societies, as recognized by Goal 16 of the 2030 Agenda for Sustainable Development. Goal 16 calls for peace, justice, and strong institutions to promote the rule of law and access to justice at a global level. More specifically, Target 16.3 of the Goal aims to promote the rule of law at the national and international levels and ensure equal access to justice for all. On the other hand, it is now widely recognized that Alternative Dispute Resolution (hereafter, ADR) represents an efficient mechanism for resolving disputes outside the adversarial conventional court system of litigation or prosecution. ADR processes include but are not limited to negotiation, reconciliation, mediation, arbitration, and traditional conflict resolution. ADR has a number of advantages, including being flexible, cost-efficient, time-effective, and confidential, and giving the parties more control over the process and the results, thus promoting restorative justice. The methodology of this paper is a desktop review of books, journal articles, reports and government documents., among others. The paper recognizes that ADR represents a cornerstone of Africa’s, and more specifically, Kenya’s, efforts to promote inclusive, accountable, and effective institutions and achieve the objectives of goal 16. In Kenya, and not unlike many African countries, there has been an outcry over the backlog of cases that are yet to be resolved in the courts and the statistics have shown that the numbers keep on rising. While ADR mechanisms have played a major role in reducing these numbers, access to justice in the country remains a big challenge, especially to the subaltern. There is, therefore, a need to analyze the opportunities and challenges facing the application of ADR mechanisms as tools for accessing justice in Kenya and further discuss various ways in which we can overcome these challenges to make ADR an effective alternative to dispute resolution. The paper argues that by embracing ADR across various sectors and addressing existing shortcomings, Kenya can, over time, realize its vision of a more just and equitable society. This paper discusses the opportunities and challenges of the application of ADR in Kenya with a view to sharing the lessons and challenges with the wider African continent. The paper concludes that ADR mechanisms can provide critical pathways to justice in Kenya and the African continent in general but come with distinct challenges. The paper thus calls for concerted efforts of respective stakeholders to overcome these challenges.Keywords: mediation, arbitration, negotiation, reconsiliation, Traditional conflict resolution, sustainable development
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