Commenced in January 2007
Frequency: Monthly
Edition: International
Paper Count: 25

Search results for: arbitration law

25 Nature of Maritime Dispute Resolution by Arbitration: USA as a Reference Point

Authors: Thusitha B. Abeysekara, M. A. Nihal Chandrathilake

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The aim of this research is to examine the legal mechanism of resolving maritime disputes by arbitration, and it would be a reference point on the analysis of USA approaches. In doing so, the research aims to analyse the relevant legal principles in the context of current maritime arbitration practices in selected jurisdictions. The research also aims to analyse the advantages and applicability of arbitration in maritime dispute settlements over the litigation and further approaches the role of specialist maritime arbitration institutes in the USA and the position of international merchant organizations in maritime arbitration. Further, research values the legislative aspects of maritime arbitration. The study would evaluate the contemporary issues in maritime arbitration practices in the USA and further analyses the statistical information on maritime arbitration. Finally, the research made remarks to often parallel consequence in USA legal systems in maritime arbitration and despite the fundamental divergences of the applicable principles and practices of maritime arbitration. The research finally suggests the doctrine should reshape with equitable remedies and international maritime arbitration practices with its institutional impact rather than using as statutory rules related maritime arbitration.

Keywords: arbitration, international shipping, maritime dispute, New York convention

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24 Absence of Arbitrator Duty of Disclosure under the English Arbitration Act 1996

Authors: Qusai Alshahwan

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The arbitrator’s duties of independence and impartiality play a significant role in delivering arbitral awards which legitimate the fundamental of arbitration concepts. For this reason, the international and national arbitration rules require arbitrators to be independent and impartial to solve the arbitration disputes fairly between the parties. However, solving the disputes fairly also requires arbitrators to disclose any existing conflicts of interest with the parties to avoid misunderstanding and late challenges. In contrary with the international and national arbitration rules, the English Arbitration Act 1996 does not include independence as a separate ground for arbitrator’s removal, and importantly the English Arbitration Act 1996 is deliberately silent to the arbitrator duty of disclosure. The absence of arbitrator duty of disclosure is an issue had generated uncertainty and concerns for the arbitration community under the English jurisdiction, particularly when the English courts rejected the IBA guidelines of arbitrator conflict of interest such as in case of Halliburton v Chubb for example. This article is highlighting on the legal consequences of the absence of arbitrator duty of disclosure under the English Arbitration Act 1996 and the arbitrator's contractual obligations.

Keywords: arbitration, impartiality, independence, duty of disclosure, English Arbitration Act 1996

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23 The Problem of Reconciling the Principle of Confidentiality in Foreign Investment Arbitration with the Public Interest

Authors: Bárbara Magalhães Bravo, Cláudia Figueiras

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The economical globalization through the liberalization of the markets and capitals boosted the economical development of the nations and the needs for sorting out the disputes arising from the foreign investment. The arbitration, for all the inherent advantages, such as swiftness, arbitrators’ specialise skills and impartiality sets a pacifier tool for the interest in account. Safeguarded the public interest, we face the problem of the confidentiality in the arbitration. The urgent development of impelling mechanisms concerning transparency, guaranty and protection of the interest in account, reveals itself urgent. Through a bibliography review, we will dense the state of art, by going through the several solutions concerning, and pointing out the most suitable. Through the jurisprudential analysis we will point out the solution for the conflict confidentiality/public interest. The transparency, inextricable from the public interest, imposes the arbitration process can be open to all citizens. Transparency rules have been considered at the UNCITRAL in attempting to conciliate the necessity of publicity and the public interest, however still insufficient. The arbitration of foreign investment carries consequences to the citizens of the State. Articulating mechanisms between the arbitral procedures secrecy and the public interest should be adopted. The arbitration of foreign investment, being a tertius genius between the international arbitration and the administrative arbitration would claim its own regulation in each and every States where the confidentiality rules and its exceptions could be identified. One should enquiry where the limit of the citizens’ individual rights protection and the public interest should give way to the principle of transparency

Keywords: arbitration, foreign investment, transparency, confidenciality, International Centre for Settlement of Investment Disputes UNCITRAL

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22 Recognition and Enforcement of International Commercial Arbitral Awards in Sri Lanka, A Lesson from Singapore

Authors: Kahandawala Arachchige Thani Chathurika Kahandawala

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This research is attempted to analyse, Sri Lanka’s current situation regarding the recognition and enforcement of international commercial arbitration awards. Sri Lanka has been involved with commercial arbitration for a long time period. But there are good and bad legal practices in place in proceedings in Sri Lanka legal system. The common perception and reality of Sri Lanka’s arbitration law and practices regarding recognition and enforcement of international arbitral awards is far behind the international standards. Therefore arbitration as a dispute resolution method has become a time-consuming and costly method in Sri Lanka. This research is employed with the qualitative method based on both primary and secondary resources. This carried out the comparative analysis of recognition and enforcement in international arbitration laws established jurisdiction in Singapore and the United Kingdom, which are known as best counties as a seat of arbitration in Asia and Europe. International conventions, act and all the legal proceedings regarding recognition and enforcement of an international arbitral award in Sri Lanka are going to be discussed in the research. In the Jurisdiction of Sri Lanka, critically need to value an international arbitral award in the domestic legal system. Therefore an award has to be recognised in Sri Lanka. Otherwise, it doesn’t have any value. After recognizing it, court can enforce it. This research intends to provide a comparative analysis to overcome the drawbacks.

Keywords: arbitration, alternative dispute method, recognition and enforcement, foreign arbitral awards, Sri Lankan legal system, arbitral award in Singapore

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21 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

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20 Protection of Chinese Enterprises’ Overseas Investments Under Bilateral Investment Treaties Under the Belt and Road Initiative

Authors: Bo Sun, Ni Zhong

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Bilateral investment treaties have played a role in the construction of the Belt and Road, providing institutional protection for Chinese companies' overseas investments. However, such treaties between China and countries along the Belt and Road were signed in the 1980s and 1990s, and their provisions are outdated and insufficiently detailed to provide adequate legal protection for Chinese investors when they initiate investment arbitration against host countries. By studying cases involving China in international investment arbitration, this paper suggests that China should pay attention to further clarifying the identity of "investors", the scope of disputes that can be submitted to arbitration, and the concept of "indirect expropriation" when updating bilateral investment treaties in the future, in order to reduce the risk of losing cases for Chinese investors.

Keywords: belt and road, bilateral investment agreement, investment arbitration, indirect expropriation

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19 Arbitration in Foreign Investment: The Need for Equitable Treatment between the Investor and the Host State

Authors: Maria João Mimoso, Bárbara Magalhães Bravo

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This study aims to analyse the phenomenon of arbitration as a paradigm in solving emerging controversies of foreign investment. We will present their benefits and demonstrate their contribution to greater legal certainty in economic relations. This article explores the legal relevant concepts under a strictly conceptual methodology, preparing future research to be developed under more developed comparative law methodologies. The review of national and international literature and jurisprudence will reveal the importance of arbitration in the field of international economic relations, presenting it as an alternative dispute resolution. Globalization imposes new forms of investment protection and appeals to other forms of dispute settlement, primarily to prevent, among other problems, the possible bias of the recipient country's investment tribunals. Characterization of foreign investment, its regulatory sources, their characteristics and the need for intervention of an entity capable of resolving disputes between the parties involved: State investor reception; Investor (of a nationality other than the latter); State of the investor's nationality, and sometimes a ‘subsidiary’ local foreign investor. The ICSID (International Settlement of Investment Disputes) arbitration as a means of resolving investment litigations covered by bilateral treaties (BIT) and investment contracts calls for a delimitation of these two figures in order to clarify the scope of the arbitration under the aegis of the World Bank and to make it more secure in the view of the sovereign power of the States.

Keywords: arbitration, contract, foreign, investment, disputes

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18 International Investment Arbitration and Environment: Trends and Approaches within the Framework of the ICSID

Authors: Anuj Kumar Vaksha

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The research paper examines the trends and approaches of the international investment arbitral tribunals to the issues of environment and the exercise of states' regulatory power for the preservation of environment vis-à-vis the rights of the affected foreign investors. The paper analyses arbitral awards, decisions and orders in the leading cases of international investment arbitrations involving issues of environment and finds that there has been strong trend among the arbitral tribunals to balance the imperatives of the environmental regulation and the interest of the foreign investors. The arbitral tribunals have reflected deference to States' competence for regulation of environment to the extent they were genuine, relevant and in proportion to the legitimate objective sought to be achieved. The arbitral tribunals have at times been innovative and non-conservative in promoting the cause of environment through the mechanism of investor-state arbitration.

Keywords: International Investment Arbitration, environmental regulations, bilateral investment treaties, ICSID, NAFTA, amicus curiae, pollution havens hypothesis, environmental race to the bottom hypothesis

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17 The Convention of Culture: A Comprehensive Study on Dispute Resolution Pertaining to Heritage and Related Issues

Authors: Bhargavi G. Iyer, Ojaswi Bhagat

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In recent years, there has been a lot of discussion about ethnic imbalance and diversity in the international context. Arbitration is now subject to the hegemony of a small number of people who are constantly reappointed. When a court system becomes exclusionary, the quality of adjudication suffers significantly. In such a framework, there is a misalignment between adjudicators' preconceived views and the interests of the parties, resulting in a biased view of the proceedings. The world is currently witnessing a slew of intellectual property battles around cultural appropriation. The term "cultural appropriation" refers to the industrial west's theft of indigenous culture, usually for fashion, aesthetic, or dramatic purposes. Selena Gomez exemplifies cultural appropriation by commercially using the “bindi,” which is sacred to Hinduism, as a fashion symbol. In another case, Victoria's Secret insulted indigenous peoples' genocide by stealing native Indian headdresses. In the case of yoga, a similar process can be witnessed, with Vedic philosophy being reduced to a type of physical practice. Such a viewpoint is problematic since indigenous groups have worked hard for generations to ensure the survival of their culture, and its appropriation by the western world for purely aesthetic and theatrical purposes is upsetting to those who practise such cultures. Because such conflicts involve numerous jurisdictions, they must be resolved through international arbitration. However, these conflicts are already being litigated, and the aggrieved parties, namely developing nations, do not believe it prudent to use the World Intellectual Property Organization's (WIPO) already established arbitration procedure. This practise, it is suggested in this study, is the outcome of Europe's exclusionary arbitral system, which fails to recognise the non-legal and non-commercial nature of indigenous culture issues. This research paper proposes a more comprehensive, inclusive approach that recognises the non-legal and non-commercial aspects of IP disputes involving cultural appropriation, which can only be achieved through an ethnically balanced arbitration structure. This paper also aspires to expound upon the benefits of arbitration and other means of alternative dispute resolution (ADR) in the context of disputes pertaining to cultural issues; positing that inclusivity is a solution to the existing discord between international practices and localised cultural points of dispute. This paper also hopes to explicate measures that will facilitate ensuring inclusion and ideal practices in the domain of arbitration law, particularly pertaining to cultural heritage and indigenous expression.

Keywords: arbitration law, cultural appropriation, dispute resolution, heritage, intellectual property

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16 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

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15 A Case Study of the Saudi Arabian Investment Regime

Authors: Atif Alenezi

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The low global oil price poses economic challenges for Saudi Arabia, as oil revenues still make up a great percentage of its Gross Domestic Product (GDP). At the end of 2014, the Consultative Assembly considered a report from the Committee on Economic Affairs and Energy which highlights that the economy had not been successfully diversified. There thus exist ample reasons for modernising the Foreign Direct Investment (FDI) regime, primarily to achieve and maintain prosperity and facilitate peace in the region. Therefore, this paper aims at identifying specific problems with the existing FDI regime in Saudi Arabia and subsequently some solutions to those problems. Saudi Arabia adopted its first specific legislation in 1956, which imposed significant restrictions on foreign ownership. Since then, Saudi Arabia has modernised its FDI framework with the passing of the Foreign Capital Investment Act 1979 and the Foreign Investment Law2000 and the accompanying Executive Rules 2000 and the recently adopted Implementing Regulations 2014.Nonetheless, the legislative provisions contain various gaps and the failure to address these gaps creates risks and uncertainty for investors. For instance, the important topic of mergers and acquisitions has not been addressed in the Foreign Investment Law 2000. The circumstances in which expropriation can be considered to be in the public interest have not been defined. Moreover, Saudi Arabia has not entered into many bilateral investment treaties (BITs). This has an effect on the investment climate, as foreign investors are not afforded typical rights. An analysis of the BITs which have been entered into reveals that the national treatment standard and stabilisation, umbrella or renegotiation provisions have not been included. This is problematic since the 2000 Act does not spell out the applicable standard in accordance with which foreign investors should be treated. Moreover, the most-favoured-nation (MFN) or fair and equitable treatment (FET) standards have not been put on a statutory footing. Whilst the Arbitration Act 2012 permits that investment disputes can be internationalised, restrictions have been retained. The effectiveness of international arbitration is further undermined because Saudi Arabia does not enforce non-domestic arbitral awards which contravene public policy. Furthermore, the reservation to the Convention on the Settlement of Investment Disputes allows Saudi Arabia to exclude petroleum and sovereign disputes. Interviews with foreign investors, who operate in Saudi Arabia highlight additional issues. Saudi Arabia ought not to procrastinate far-reaching structural reforms.

Keywords: FDI, Saudi, BITs, law

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14 Bug Localization on Single-Line Bugs of Apache Commons Math Library

Authors: Cherry Oo, Hnin Min Oo

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Software bug localization is one of the most costly tasks in program repair technique. Therefore, there is a high claim for automated bug localization techniques that can monitor programmers to the locations of bugs, with slight human arbitration. Spectrum-based bug localization aims to help software developers to discover bugs rapidly by investigating abstractions of the program traces to make a ranking list of most possible buggy modules. Using the Apache Commons Math library project, we study the diagnostic accuracy using our spectrum-based bug localization metric. Our outcomes show that the greater performance of a specific similarity coefficient, used to inspect the program spectra, is mostly effective on localizing of single line bugs.

Keywords: software testing, bug localization, program spectra, bug

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13 Intelligent Grading System of Apple Using Neural Network Arbitration

Authors: Ebenezer Obaloluwa Olaniyi

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In this paper, an intelligent system has been designed to grade apple based on either its defective or healthy for production in food processing. This paper is segmented into two different phase. In the first phase, the image processing techniques were employed to extract the necessary features required in the apple. These techniques include grayscale conversion, segmentation where a threshold value is chosen to separate the foreground of the images from the background. Then edge detection was also employed to bring out the features in the images. These extracted features were then fed into the neural network in the second phase of the paper. The second phase is a classification phase where neural network employed to classify the defective apple from the healthy apple. In this phase, the network was trained with back propagation and tested with feed forward network. The recognition rate obtained from our system shows that our system is more accurate and faster as compared with previous work.

Keywords: image processing, neural network, apple, intelligent system

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12 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

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11 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

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10 The Dynamics of Algeria’s Natural Gas Exports to Europe: Evidence from ARDL Bounds Testing Approach with Breakpoints

Authors: Hicham Benamirouche, Oum Elkheir Moussi

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The purpose of the study is to examine the dynamics of Algeria’s natural gas exports through the Autoregressive Distributed Lag (ARDL) bounds testing approach with break points. The analysis was carried out for the period from 1967 to 2015. Based on imperfect substitution specification, the ARDL approach reveals a long-run equilibrium relationship between Algeria’s Natural gas exports and their determinant factors (Algeria’s gas reserves, Domestic gas consumption, Europe’s GDP per capita, relative prices, the European gas production and the market share of competitors). All the long-run elasticities estimated are statistically significant with a large impact of domestic factors, which constitute the supply constraints. In short term, the elasticities are statistically significant, and almost comparable to those of the long term. Furthermore, the speed of adjustment towards long-run equilibrium is less than one year because of the little flexibility of the long term export contracts. Two break points have been estimated when we employ the domestic gas consumption as a break variable; 1984 and 2010, which reflect the arbitration policy between the domestic gas market and gas exports.

Keywords: natural gas exports, elasticity, ARDL bounds testing, break points, Algeria

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9 Impact of the Electricity Market Prices during the COVID-19 Pandemic on Energy Storage Operation

Authors: Marin Mandić, Elis Sutlović, Tonći Modrić, Luka Stanić

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With the restructuring and deregulation of the power system, storage owners, generation companies or private producers can offer their multiple services on various power markets and earn income in different types of markets, such as the day-ahead, real-time, ancillary services market, etc. During the COVID-19 pandemic, electricity prices, as well as ancillary services prices, increased significantly. The optimization of the energy storage operation was performed using a suitable model for simulating the operation of a pumped storage hydropower plant under market conditions. The objective function maximizes the income earned through energy arbitration, regulation-up, regulation-down and spinning reserve services. The optimization technique used for solving the objective function is mixed integer linear programming (MILP). In numerical examples, the pumped storage hydropower plant operation has been optimized considering the already achieved hourly electricity market prices from Nord Pool for the pre-pandemic (2019) and the pandemic (2020 and 2021) years. The impact of the electricity market prices during the COVID-19 pandemic on energy storage operation is shown through the analysis of income, operating hours, reserved capacity and consumed energy for each service. The results indicate the role of energy storage during a significant fluctuation in electricity and services prices.

Keywords: electrical market prices, electricity market, energy storage optimization, mixed integer linear programming (MILP) optimization

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8 Study of Causes and Effects of Road Projects Abandonment in Nigeria

Authors: Monsuru Oyenola Popoola, Oladapo Samson Abiola, Wusamotu Alao Adeniji

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The prevalent and incessant abandonment of road construction projects are alarming that it creates several negative effects to social, economic and environmental values of the project. The purpose of this paper is to investigate and determined the various causes and effects of abandoning road construction projects in Nigeria. Likert Scale questionnaire design was used to administered and analysed the data obtained for the stydy. 135 (Nr) questionnaires were completed and retrieved from the respondents, out of 200 (Nr) questionnaires sent out, representing a response rate of 67.5%. The analysis utilized the Relative Importance Index (R.I.I.) method and the results are presented in tabular form. The findings confirms that at least 20 factors were the causes of road projects abandonment in Nigeria with most including Leadership Instability, Improper Project Planning, Inconsistence in government policies and Design, Contractor Incompetence, Economy Instability and Inflation, Delay in remittance of money, Improper financial analysis, Poor risk management, Climatic Conditions, Improper Project Estimates etc. The findings also show that at least eight (8) effect were identified on the system, and these include; Waste of Financial Resources, Loss of economic value, Environmental degradation, Loss of economic value, Reduction in standard of living, Litigation and Arbitration, etc. The reflection is that allocating reasonable finance, developing appropriate and effective implementation plans and monitoring, evaluation and reporting on development project activities by key actors should enhance in resolving the problem of road projects abandonment.

Keywords: road construction, abandonment of road projects, climatic condition, project planning, contractor

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7 Conciliation Bodies as an Effective Tool for the Enforcement of Air Passenger Rights: Examination of an Exemplary Model in Germany

Authors: C. Hipp

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The EU Regulation (EC) No 261/2004 under which air passengers can claim compensation in the event of denied boarding, cancellation or long delay of flights has to be regarded as a substantial progress for the consumer protection in the field of air transport since it went into force in February 2005. Nevertheless, different reviews of its effective functioning demonstrate that most passengers affected by service disruptions do not enforce their complaints and claims towards the airline. The main cause of this is not only the unclear legal situation due to the fact that the regulation itself suffers from many undetermined terms and loopholes it is also attributable to the strategy of the airlines which do not handle the complaints of the passengers or exclude their duty to compensate them. Economically contemplated, reasons like the long duration of a trial and the cost risk in relation to the amount of compensation make it comprehensible that passengers are deterred from enforcing their rights by filing a lawsuit. The paper focusses on the alternative dispute resolution namely the recently established conciliation bodies which deal with air passenger rights. In this paper, the Conciliation Body for Public Transport in Germany (Schlichtungsstelle für den öffentlichen Personenverkehr – SÖP) is examined as a successful example of independent consumer arbitration service. It was founded in 2009 and deals with complaints in the field of air passenger rights since November 2013. According to the current situation one has to admit that due to its structure and operation it meets on the one hand the needs of the airlines by giving them an efficient tool of their customer relation management and on the other hand that it contributes to the enforcement of air passenger rights effectively.

Keywords: air passenger rights, alternative dispute resolution, consumer protection, EU law regulation (EC) 261/2004

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6 Foreign Artificial Intelligence Investments and National Security Exceptions in International Investment Law

Authors: Ying Zhu

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Recent years have witnessed a boom of foreign investments in the field of artificial intelligence (AI). Foreign investments provide critical capital for AI development but also trigger national security concerns of host states. A notable example is an increasing number of cases in which the Committee on Foreign Investment in the United States (CFIUS) has denied Chinese acquisitions of US technology companies on national security grounds. On July 19, 2018, the Congress has reached a deal on the final draft of a new provision to strengthen CFIUS’s authority to review overseas transactions involving sensitive US technology. The question is: how to reconcile the emerging tension between, on the one hand, foreign AI investors’ expectations of a predictable investment environment, and on the other hand, host states’ regulatory power on national security? This paper provides a methodology to reconcile this tension under international investment law. Based on an examination, the national security exception clauses in international investment treaties and the application of national security justification in investor-state arbitration jurisprudence, the paper argues that a traditional interpretation of the national security exception, based on the necessity concept in customary international law, fails to take into account new risks faced by countries, including security concerns over strategic industries such as AI. To overcome this shortage, the paper proposes to incorporate an integrated national security clause in international investment treaties, which includes a two-tier test: a ‘self-judging’ test in the pre-establishment period and a ‘proportionality’ test in the post-establishment period. At the end, the paper drafts a model national security clause for future treaty-drafting practice.

Keywords: foreign investment, artificial intelligence, international investment law, national security exception

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5 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

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4 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

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3 'Value-Based Re-Framing' in Identity-Based Conflicts: A Skill for Mediators in Multi-Cultural Societies

Authors: Hami-Ziniman Revital, Ashwall Rachelly

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The conflict resolution realm has developed tremendously during the last half-decade. Three main approaches should be mentioned: an Alternative Dispute Resolution (ADR) suggesting processes such as Arbitration or Interests-based Negotiation was developed as an answer to obligations and rights-based conflicts. The Pragmatic mediation approach focuses on the gap between interests and needs of disputants. The Transformative mediation approach focusses on relations and suits identity-based conflicts. In the current study, we examine the conflictual relations between religious and non-religious Jews in Israel and the impact of three transformative mechanisms: Inter-group recognition, In-group empowerment and Value-based reframing on the relations between the participants. The research was conducted during four facilitated joint mediation classes. A unique finding was found. Using both transformative mechanisms and the Contact Hypothesis criteria, we identify transformation in participants’ relations and a considerable change from anger, alienation, and suspiciousness to an increased understanding, affection and interpersonal concern towards the out-group members. Intergroup Recognition, In-group empowerment, and Values-based reframing were the skills discovered as the main enablers of the change in the relations and the research participants’ fostered mutual recognition of the out-group values and identity-based issues. We conclude this transformation was possible due to a constant intergroup contact, based on the Contact Hypothesis criteria. In addition, as Interests-based mediation uses “Reframing” as a skill to acknowledge both mutual and opposite needs of the disputants, we suggest the use of “Value-based Reframing” in intergroup identity-based conflicts, as a skill contributes to the empowerment and the recognition of both mutual and different out-group values. We offer to implement those insights and skills to assist conflict resolution facilitators in various intergroup identity-based conflicts resolution efforts and to establish further research and knowledge.

Keywords: empowerment, identity-based conflict, intergroup recognition, intergroup relations, mediation skills, multi-cultural society, reframing, value-based recognition

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2 Cinema and the Documentation of Mass Killings in Third World Countries: A Study of Selected African Films

Authors: Chijindu D. Mgbemere

Abstract:

Mass killing also known as genocide is the systematic killing of people from national, ethnic, or religious group, or an attempt to do so. The act has been there before 1948, when it was officially recognized for what it is. From then, the world has continued to witness genocide in diverse forms- negating different measures by the United Nations and its agencies to curb it. So far, all the studies and documentations on this subject are biased in favor of radio and the print. This paper therefore extended the interrogation of genocide, drumming its devastating effects, using the film medium; and in doing so devised innovative and pragmatic approach to genocide scholarship. It further centered attention on the factors and impacts of genocide, with a view to determine how effective film can be in such a study. The study is anchored on Bateson’s Framing Theory. Four films- Hotel Rwanda, Half of a Yellow Sun, Attack on Darfur, and sarafina, were analyzed, based on background, factors/causes, impacts, and development of genocide, via Content Analysis. The study discovered that: as other continents strive towards peace, acts of genocide are on the increase in African. Bloodletting stereotypes give Africa negative image in the global society. Difficult political frameworks, the trauma of postcolonial state, aggravated by ethnic and religious intolerance, and limited access to resources are responsible for high cases of genocide in Africa. The media, international communities, and peace agencies often abet other than prevent genocide or mass killings in Africa. High human casualty and displacement, children soldering, looting, hunger, rape, sex-slavery and abuse, mental and psychosomatic stress disorders are some of the impacts of genocide. Genocidaires are either condemned or killed. Grievances can be vented using civil resistance, negotiation, adjudication, arbitration, and mediation. The cinema is an effective means of studying and documenting genocide. Africans must factor the image laundering of their continent into consideration. Punishment of genocidaires without an attempt to de-radicalize them is counterproductive.

Keywords: African film, genocide, framing theory, mass murder

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1 Impact of Displacements Durations and Monetary Costs on the Labour Market within a City Consisting on Four Areas a Theoretical Approach

Authors: Aboulkacem El Mehdi

Abstract:

We develop a theoretical model at the crossroads of labour and urban economics, used for explaining the mechanism through which the duration of home-workplace trips and their monetary costs impact the labour demand and supply in a spatially scattered labour market and how they are impacted by a change in passenger transport infrastructures and services. The spatial disconnection between home and job opportunities is referred to as the spatial mismatch hypothesis (SMH). Its harmful impact on employment has been subject to numerous theoretical propositions. However, all the theoretical models proposed so far are patterned around the American context, which is particular as it is marked by racial discrimination against blacks in the housing and the labour markets. Therefore, it is only natural that most of these models are developed in order to reproduce a steady state characterized by agents carrying out their economic activities in a mono-centric city in which most unskilled jobs being created in the suburbs, far from the Blacks who dwell in the city-centre, generating a high unemployment rates for blacks, while the White population resides in the suburbs and has a low unemployment rate. Our model doesn't rely on any racial discrimination and doesn't aim at reproducing a steady state in which these stylized facts are replicated; it takes the main principle of the SMH -the spatial disconnection between homes and workplaces- as a starting point. One of the innovative aspects of the model consists in dealing with a SMH related issue at an aggregate level. We link the parameters of the passengers transport system to employment in the whole area of a city. We consider here a city that consists of four areas: two of them are residential areas with unemployed workers, the other two host firms looking for labour force. The workers compare the indirect utility of working in each area with the utility of unemployment and choose between submitting an application for the job that generate the highest indirect utility or not submitting. This arbitration takes account of the monetary and the time expenditures generated by the trips between the residency areas and the working areas. Each of these expenditures is clearly and explicitly formulated so that the impact of each of them can be studied separately than the impact of the other. The first findings show that the unemployed workers living in an area benefiting from good transport infrastructures and services have a better chance to prefer activity to unemployment and are more likely to supply a higher 'quantity' of labour than those who live in an area where the transport infrastructures and services are poorer. We also show that the firms located in the most accessible area receive much more applications and are more likely to hire the workers who provide the highest quantity of labour than the firms located in the less accessible area. Currently, we are working on the matching process between firms and job seekers and on how the equilibrium between the labour demand and supply occurs.

Keywords: labour market, passenger transport infrastructure, spatial mismatch hypothesis, urban economics

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