Search results for: dispute%20settlement

Authors: Saroj Kumar Rath

Abstract:

When insurgency erupted in Kashmir in 1989, it was quickly backed by Pakistan. Kashmir witnessed terrorism for more than a decade till 2004 when Indian forces decimated militancy. After the US pressure in 1992, terrorist training camps of Pakistan shifted to Afghanistan and al Qaeda and the Taliban had taken over training of Kashmiri militants in Afghanistan after 1997 as part of their global jihad. The Indo-Pak rivalry over Kashmir dispute had taken a new turn in the aftermath of 9/11 developments. Islamabad viewed its Afghan policy through the prism of denying India any advantage in Kabul. Pakistan was successful in refuting Indian presence in Kabul for a decade through the Taliban. After the 9/11 attacks the Inter Services Intelligence (ISI) saw Northern Alliance, supported by the Americans and all of Pakistan’s regional rivals – India, Iran, and Russia – as claiming victory in Kabul. For Pakistan’s military regime, this was a strategic disaster and prompted the ISI to give refuge to the escaping Taliban, while denying full support to Hamid Karzai. The new development in Afghanistan prompted India to establish a foothold it had lost nearly a decade earlier. India established diplomatic contacts with Afghanistan; supported the Karzai government and funded aid programs. Pakistan alleged that Indian agents are training Baloch and Sindhi dissidents in Pakistan through Afghanistan. Kabul had suddenly become the new Kashmir – the new battleground for India-Pakistan rivalry.

Keywords: Afghan imbroglio, Kashmir conflict, Indo-Pak rivalry, US policy in South Asia

Procedia PDF Downloads 403

Authors: A. Nawaz

Abstract:

The present study uses Halliday’s transitivity model to analyze and interpret ideological stance in PM Nawaz Sharif’s political discourse. His famous speech at the 71st UN assembly was analyzed qualitatively using clausal analysis approach to investigate the communicative functions of the linguistic choices made in the address. The study discovers that among the six process types under the transitivity model, material, relational and mental processes appear most frequently in the speech, making up almost 86% of the whole. Verbal processes rank 4th, whereas existential and behavioral are the least occurring processes covering only 2 and 1 percent respectively. The dominant use of material processes suggests that Nawaz Sharif and his government are the main actors working on several concrete projects to produce a sense of developmental progression and continuity. Using relational and mental processes the PM, along with establishing proximity with masses and especially Kashmiri, gives guarantees and promises. The linguistic analysis concludes Kashmir dispute as being the central theme of the address, since it covers more than half of the discourse. The address calls for a strong action instead of formal assurances and wishful thoughts. The study establishes that language structures can yield certain connotations and ideologies which are not overt for readers. This is in affirmation to the supposition that language form performs a communicative function and is not merely fortuitous.

Keywords: Hallidian perspective on language, implicit meanings, Nawaz Sharif, political ideologies, political speeches, transitivity, UN Assembly

Procedia PDF Downloads 183

Authors: Arjun Chatterjee

Abstract:

The India-China border clash in Galwan valley in June 2020, the first deadly skirmish between the two Asian giants in the Himalayan border area in over four decades, highlighted the need to examine the notion of ‘authenticity’ in journalistic practices. Information emanating from such remotely located, sparsely populated, and not well-demarcated international land borders have limited sources, restricted to official sources, which have their own narrative. Geopolitical goals and ambitions embolden narratives of nationalism in the media, and these often challenge the notion and understanding of authenticity in journalism. The Indian press, contrary to the Chinese press, which is state-owned, is diverse and also confrontational, where narratives of nationalism are differentially interpreted, embedded, and realised. This paper examines how authenticity has become a variable, rather than a constant, in conflict reporting of the Sino-Indian border clash and how authenticity is interpreted similarly or differently in conflict journalism. The paper reports qualitative textual analysis of two leading English language newspapers – The Times of India and The Hindu, and two mainstream regional language newspapers, Amar Ujala (Hindi) and Ananda Bazar Patrika (Bengali), to evaluate the ways in which representations of information function in conflict reporting and to recontextualize (and thus change or modify the meaning of) that which they represent, and with what political and cultural implications.

Keywords: India-China, framing, conflict, media narratives, border dispute

Procedia PDF Downloads 63

Authors: Ali Asghar Sotoudeh

Abstract:

Since the US invasion of Iraq in 2003 and the subsequent regime change, internal conflicts between political and ethnic-religious groups have become a hallmark of Iraqi political dynamism. The most important manifestations of these conflicts are the Kurdish-central government conflicts, as well as fundamentalism since 2003. As a result, it seems not only US presence in Iraq under the pretext of fighting terrorism and expanding democracy has not had a positive effect on controlling fundamentalism and political stability in Iraq, but it has paved the way for the formation and continuation of geopolitical crises in the form of disputes over territory and sources of power. In this regard, given the importance of the study, the main purpose of this study is to examine the process of the impact of US regime-change policy on the formation and continuation of geopolitical crises in Iraq. The central question of this study is, what effect has the US regime change policy had on Iraq's domestic political processes? Findings show that regime change and subsequent imposed federalism have widened the gaps in Iraq's sectarian-ethnic system. As a result, the geopolitical crisis in the context of the dispute over geographical territory and sources of power between ethnic-religious groups has become the most important political dynamic in Iraq since the occupation. The research method in this article is descriptive-analytical, and the data collection method is library and internet resources.

Keywords: Iraq, united states, geopolitical crisis, ethno-religious conflict, political federalism

Procedia PDF Downloads 119

Authors: Laura Ramona Nae

Abstract:

The issue of risks faced by companies providing tourist and hotel services in the HoReCa field, related to the goods belonging to consumer tourists left in hotel storage, has acquired a new dimension in the context of the economic and geo-political influences that have recently intervened at the global level. Thus, hoteliers and not only had to create contractual mechanisms regarding the risks and to protect the businesses in this field of activity. This situation has led to a reassessment of the importance of insurance, in particular with regard to hotel liability insurance-premises liability, safety, and security of goods. Interpretation of clauses in contracts concluded between hoteliers and tourists consuming hotel services and products, all the more so in the current pandemic context of Covid 19, stressed the increase in the number of disputes generated by them. This article presents a general picture of the significance of the risks related to the activity carried out in the hospitality industry, tourism, respectively within the HoReCa field. The study mainly marks the specificities of the hotel deposit contract, as well as the related insurance specific to the field, as a way to cover these risks. The article also refers to alternative methods of out-of-court settlement of disputes (ADR) in the HoReCa domain, generally used in both Romania and the European Union.

Keywords: consumer tourist, disputes and ADR methods, deposit contract, hotel warehouse and hotelier insurance, hotel services and tourist products, HoReCa

Procedia PDF Downloads 27

Authors: Mustafa Avsever

Abstract:

Throughout history, states have attached great importance to seas in terms of economic and security. Advanced civilizations have always founded in coastal regions. Over time, human being has tended to trade and naturally always aimed get more and more. Seas by covering 71% of the earth, provide the greatest economic opportunities for access to raw material resources and the world market. As a result, seas have become the most important areas of conflict over the course of time. Coastal states, use seas as a tool for defense zone, trade, marine transportation and power transfer, they have acquired colonies overseas and increased their capital, raw materials and labor. Societies, have increased their economic prosperity, though their navies in order to retain their welfare and achieve their foreign policy objectives. Sometimes they have imposed their demands through the use or threat of limited naval force in accordance with their interests that is gunboat diplomacy. Today we can see samples of gunboat diplomacy used in the Eastern Mediterranean, during Ukraine crisis, in dispute between North Korea and South Korea and the ongoing power struggle in Asia-Pacific. Gunboat diplomacy has been and continues to be applied consistently in solving problems by the stronger side of the problem. The purpose of this article is to examine using navy under the gunboat diplomacy as an active instrument of foreign policy and security policy and reveal the strategic sea areas in which gunboat diplomacy is used effectively in the matrix of international politics in the 21st century.

Keywords: gunboat diplomacy, maritime strategy, sea power, strategic sea lands

Procedia PDF Downloads 410

Authors: Sara Vora (Hoxha)

Abstract:

The present article delves into the intricate matters concerning Intellectual Property Rights (IPR) and cross-border jurisdiction within the confines of the European Union (EU). The prevalence of cross-border intellectual property rights (IPR) disputes has increased in tandem with the globalization of commerce and the widespread adoption of technology. The European Union (EU) is not immune to this trend. The manuscript presents a comprehensive analysis of various forms of intellectual property rights (IPR), such as patents, trademarks, and copyrights, and the regulatory framework established by the European Union (EU) to oversee these rights. The present article examines the diverse approaches employed for ascertaining the appropriate jurisdiction within the European Union (EU), and their potential application in the sphere of cross-border intellectual property rights (IPR) conflicts. The article sheds light on jurisdictional issues and outcomes of significant cross-border intellectual property rights (IPR) disputes in the European Union (EU). Additionally, the document provides suggestions for effectively managing intellectual property rights conflicts across borders within the European Union, which encompasses the utilization of alternative methods for resolving disputes. The article highlights the significance of comprehending the relevant jurisdiction in the European Union for Intellectual Property Rights (IPR). It also offers optimal approaches for enterprises and individuals who aim to safeguard their intellectual property beyond national boundaries. The primary objective of this article is to furnish a thorough comprehension of Intellectual Property Rights (IPR) and the relevant jurisdiction in the European Union (EU). Additionally, it endeavors to provide pragmatic recommendations for managing cross-border IPR conflicts in this intricate and ever-changing legal milieu.

Keywords: intellectual property rights (IPR), cross-border jurisdiction, applicable laws and regulations, dispute resolution, best practices

Procedia PDF Downloads 51

Authors: Beata Anna Bronowicka

Abstract:

Purpose The purpose of this paper is to improve effectiveness of mediation in family matters regarding child protection in Australia and Poland. Design/methodology/approach the methodological approach is phenomenology. Two phenomenological methods of data collection were used in this research 1/ a doctrinal research 2/an interview. The doctrinal research forms the basis for obtaining information on mediation, the date of introduction of this alternative dispute resolution method to the Australian and Polish legal systems. No less important were the analysis of the legislation and legal doctrine in the field of mediation in family matters, especially child protection. In the second method, the data was collected by semi-structured interview. The collected data was translated from Polish to English and analysed using software program. Findings- The rights of children in the context of mediation in Australia and Poland differ from the recommendations of the UN Committee on the Rights of the Child, which require that children be included in all matters that concern them. It is the room for improvement in the mediation process by increasing child rights in mediation between parents in matters related to children. Children should have the right to express their opinion similarly to the case in the court process. The challenge with mediation is also better understanding the role of professionals in mediation as lawyers, mediators. Originality/value-The research is anticipated to be of particular benefit to parents, society as whole, and professionals working in mediation. These results may also be helpful during further legislative initiatives in this area.

Keywords: mediation, family law, children's rights, australian and polish family law

Procedia PDF Downloads 51

Authors: Eugene Wong, Felix Chan, Linsey Chen, Joey Cheung

Abstract:

The widespread use of technologies and cyber/digital means for complex maritime operations have led to a sharp rise in global cyber-attacks. They have generated an increasing number of liability disputes, insurance claims, and legal proceedings. An array of antiquated case law, regulations, international conventions, and obsolete contractual clauses drafted in the pre-technology era have become grossly inadequate in addressing the contemporary challenges. This paper offers a critique of the ambiguity of cybersecurity liabilities under the obligation of seaworthiness entailed in the Hague-Visby Rules, which apply either by law in a large number of jurisdictions or by express incorporation into the shipping documents. This paper also evaluates the legal and technological criteria for assessing whether a vessel is properly equipped with the latest offshore technologies for navigation and cargo delivery operations. Examples include computer applications, networks and servers, enterprise systems, global positioning systems, and data centers. A critical analysis of the carriers’ obligations to exercise due diligence in preventing or mitigating cyber-attacks is also conducted in this paper. It is hoped that the present study will offer original and crucial insights to policymakers, regulators, carriers, cargo interests, and insurance underwriters closely involved in dispute prevention and resolution arising from cybersecurity liabilities.

Keywords: seaworthiness, cybersecurity, liabilities, risks, maritime, transport

Procedia PDF Downloads 111

Authors: K. C. Iyer, T. Gupta, Y. M. Bindal

Abstract:

Head office overhead (HOOH) is an indirect cost and is recovered through individual project billings by the contractor. Delay in a project impacts the absorption of HOOH cost allocated to that particular project and thus diminishes the expected profit of the contractor. This unabsorbed HOOH cost is later claimed by contractors as damages. The subjective nature of the available formulae to compute unabsorbed HOOH is the difficulty that contractors and owners face and thus dispute it. The paper attempts to bring together the rationale of various HOOH formulae by gathering contractor’s HOOH cost data on all of its project, using case study approach and comparing variations in values of HOOH using scenario analysis. The case study approach uses project data collected from four construction projects of a contractor in India to calculate unabsorbed HOOH costs from various available formulae. Scenario analysis provides further variations in HOOH values after considering two independent situations mainly scope changes and new projects during the delay period. Interestingly, one of the findings in this study reveals that, in spite of HOOH getting absorbed by additional works available during the period of delay, a few formulae depict an increase in the value of unabsorbed HOOH, neglecting any absorption by the increase in scope. This indicates that these formulae are inappropriate for use in case of a change to the scope of work. Results of this study can help both parties in deciding on an appropriate formula more objectively, considering the events on a project causing the delay and contractor's position in respect of obtaining new projects.

Keywords: absorbed and unabsorbed overheads, head office overheads, scenario analysis, scope variation

Procedia PDF Downloads 137

Authors: Hongxin Zhao, Shibing Yang, Bingming Yi, Yi Ning

Abstract:

Background: A few studies have found evidence that exposure to endogenous or postmenopausal exogenous estrogens may be associated with a lower prevalence of age-related macular degeneration (AMD), but dispute over this association is ongoing due to inconsistent results reported by different studies. Objectives: To conduct a systematic review and meta-analysis to investigate the association between hormone replacement therapy (HRT) use and AMD. Methods: Relevant studies that assessed the association between HRT and AMD were searched through four databases (PubMed, Web of Science, Cochrane Library, EMBASE) and reference lists of retrieved studies. Study selection, data extraction and quality assessment were conducted by three independent reviewers. The fixed-effect meta-analyses were performed to estimate the association between HRT ever-use and AMD by pooling risk ratio (RR) or odds ratio (OR) across studies. Results: The review identified 2 prospective and 7 cross-sectional studies with 93992 female participants that reported an estimate of the association between HRT ever-use and presence of early AMD or late AMD. Meta-analyses showed that there were no statistically significant associations between HRT ever-use and early AMD (pooled RR for cohort studies was 1.04, 95% CI 0.86 - 1.24; pooled OR for cross-sectional studies was 0.91, 95% CI 0.82 - 1.01). The pooled results from cross-sectional studies also showed no statistically significant association between HRT ever-use and late AMD (OR 1.01; 95% CI 0.89 - 1.15). Conclusions: The pooled effects from observational studies published to date indicate that HRT use is associated with neither early nor late AMD. Exposure to HRT may not protect women from developing AMD.

Keywords: hormone replacement therapy, age-related macular degeneration, meta-analysis, systematic review

Procedia PDF Downloads 322

Authors: S. K. Ashiquer Rahman

Abstract:

The proper policy handling might not able to attain the target since some of recessions, e.g., pandemic-led crises, the variables shocks of the economics. At the level of this situation, the Central bank implements the monetary policy to choose increase the exogenous expenditure and level of money supply consecutively for booster level economic growth, whether the monetary policy is relatively more effective than fiscal policy in altering real output growth of a country or both stand for relatively effective in the direction of output growth of a country. The dispute with reference to the relationship between the monetary policy and fiscal policy is centered on the inflationary penalty of the shortfall financing by the fiscal authority. The latest variables socks of economics as well as the pandemic-led crises, central banks around the world predicted just about a general dilemma in relation to increase rates to face the or decrease rates to sustain the economic movement. Whether the prices hang about fundamentally unaffected, the aggregate demand has also been hold a significantly negative attitude by the outbreak COVID-19 pandemic. To empirically investigate the effects of economics shocks associated COVID-19 pandemic, the paper considers the effectiveness of the monetary policy and fiscal policy that linked to the adjustment mechanism of different economic variables. To examine the effects of economics shock associated COVID-19 pandemic towards the effectiveness of Monetary Policy and Fiscal Policy in the direction of output growth of a Country, this paper uses the Simultaneous equations model under the estimation of Two-Stage Least Squares (2SLS) and Ordinary Least Squares (OLS) Method.

Keywords: IS-LM framework, pandemic. Economics variables shocks, simultaneous equations model, output growth

Procedia PDF Downloads 58

Authors: Rhisan Mae Enriquez-Morales

Abstract:

The primary concern of this study is to answer the question: How does the Philippine government formulate its foreign policy with respect to its territorial claims over areas in the West Philippine Sea after the Scarborough standoff in April 2012? Specifically, the study seeks to provide understanding on the political process in the formulation of foreign policy relating to the Philippine claims in the West Philippine Sea after the 2012 Scarborough Standoff, by looking into the relationship of bureaucracies and how it influences the decision-making process. Secondly, this study aims to determine the long and short term foreign policies of the Philippines with respect to its territorial claims over the West Philippine Sea. Lastly, this study seeks to determine the implication of Philippine foreign policy in settling the West Philippine Sea dispute on the country’s national security. The Bureaucratic Politics Model (BPM) in Foreign Policy Analysis (FPA) is the framework utilized in this study, which focuses primarily on the relationship of bureaucracies in the formulation of foreign policy and how these agencies influence the process of foreign policy formulation. The findings of this study reveal that: first, the Philippines foreign policy in the West Philippine Sea continues to develop to address current developments in the WPS. Second, as the government requires demilitarization there is a shift from traditional to non-traditional security approach. This shift caused inconvenience from the defense sector particularly the Navy thinking that they are being deprived of their traditional roles. Lastly, the Philippine government’s greater emphasis on internal security operation implies the need to reassess its security concerns and look into territorial security.

Keywords: bureaucratic politics model, foreign policy analysis, security, West Philippine sea

Procedia PDF Downloads 359

Authors: Xiangjun Kong, Dongning Yao, Yuanjia Hu

Abstract:

Therapeutic antibodies have become the most valuable and successful class of biopharmaceutical drugs, with a huge market potential and therapeutic advantages. Antibody patents are, accordingly, extremely important. As the technological limitation of the early stage of this field, the U. S. Patent and Trademark Offices (USPTO) have issued guidelines that suggest an exception for patents claiming a genus of antibodies that bind to a novel antigen, even in the absence of any experimental antibody production. This 'antibody exception' allowed for a broad scope on antibody claims, and led a global trend to patent antibodies without antibodies. Disputes around the pertinent patentability and written description issues remain particularly intense. Yet the validity of such patents had not been overtly challenged until Centocor v. Abbott, which restricted the broad scope of antibody patents and hit the brakes on the 'antibody exception'. The courts tend to uphold the requirement for adequate description of antibodies in the patent specifications, to avoid overreaching antibody claims. Patents following the 'antibody exception' are at risk of being found invalid for inadequately describing what they have claimed. However, the relation between the court and USPTO guidelines remains obscure, and the waning of the 'antibody exception' has led to further disputes around antibody patents. This uncertainty clearly affects patent applications, antibody innovations, and even relevant business performance. This study will give an overview of the emergence, debate, and waning usage of the 'antibody exception' in a number of enlightening cases, attempting to understand the specific concerns and the potential influence of antibody patents. We will then provide some possible strategies for antibody patenting, under the current considerations on the 'antibody exception'.

Keywords: antibody exception, antibody patent, USPTO (U. S. Patent and Trademark Offices) guidelines, written description requirement

Procedia PDF Downloads 127

Authors: Linh Tong

Abstract:

This paper aims to contribute to the understanding of key education reforms in Vietnam from 1945 to 2017, which reflects an evolution of socio-political needs of the Socialist Republic of Vietnam throughout this period. It explores the contextual conditions, motivations and ambitions influencing the formation of the education reforms in Vietnam. It also looks, from an applied practical perspective, at the influence of politics on education policy-making. The research methodology includes a content analysis of curriculum designs proposed by the Ministry of Education and Training, relevant resolutions and executive orders passed by the National Assembly and the Prime Minister, as well as interviews with experts and key stakeholders. The results point to a particular configuration of factors which have been inspiring the shape and substance of these reforms and which have most certainly influenced their implementation. This configuration evolves from the immediate needs to erase illiteracy and cultivate socialist economic model at the beginning of Vietnam’s independence in 1945-1975, to a renewed urge to adopt market-oriented economy in 1986 and cautiously communicate with the outside world until 2000s, and to currently a demonstrated desire to fully integrate into the global economy and tackle with rising concerns about national security (the South China Sea Dispute), environmental sustainability, construction of a knowledge economy, and a rule-of-law society. Overall, the paper attempts to map Vietnam’s socio-political needs with the changing sets of goals and expected outcomes in teaching and learning methodologies and practices as introduced in Vietnamese key education reforms.

Keywords: curriculum development, knowledge society, national security, politics of education policy-making, Vietnam's education reforms

Procedia PDF Downloads 126

Authors: Mohammad Soltani Renani

Abstract:

The problem of evil is one of the heated battlegrounds of the idea of theism and its critics. Since time immemorial and in various philosophical schools and religions, the belief in an Omniscient, Omnipotent, and Absolutely Good God has been considered inconsistent with the existence of the evil in the universe. The theist thinkers have generally adopted one of the following four ways for answering this problem: denial of the existence of evil or considering it to be relative, privation theory of evil, attribution of evil to something other than God, and depiction of an alternative picture of God. Defense or criticism of these alternative answers have given rise to an extensive and unending dispute. However, evaluation of the presupposition and context upon/in which a question is raised precedes offering an answer to it. This point in the discussion of the problem of evil is of paramount importance for both parties, i.e., questioners and answerers, that the attributes of knowledge, power, love, good-will, among others, can be supposed to be infinite only in the essence of the attributed and the domain of potentiality but what can be realized in the domain of actuality is always finite. Therefore, infinite nature of Divine Attributes and realization of evil belong to two spheres. Divine Attributes are infinite (absolute) in Divine Essence, but when they are created, each one becomes bounded by the other. This boundedness is a result of the state of being surrounded of the attributes by each other in finite world of possibility. Evil also appears in this limited world. This inconsistency leads to the collapse of the problem of evil from within: the place of infinity of the Divine Attributes, in the words of Muslim mystics, lies in the Holiest Manifestation [Feyze Aqdas] while evil emerges in the Holy Manifestation where the Divine Attributes become bounded by each other. This idea is neither a new answer to the problem of evil nor a defense of theism; rather it reveals a logical inconsistency in the discussion of the problem of evil.

Keywords: problem of evil, infinity of divine attributes, boundedness of divine attributes, holiest manifestation, holy manifestation

Procedia PDF Downloads 118

Authors: Syed Toqueer Akhter, Muhammad Muzaffar Abbas

Abstract:

Conflicts in Pakistan are a result of a configuration of factors, which are directly related to the system of the state, the unstable regional setting, and the geo-strategic location of Pakistan at large. This paper examines the impact of regional conflict onto the socio-political sustainability of Pakistan. The magnitude of the spillover from a conflicted region is similar in size of the equivalent increase in domestic conflict. Pakistan has gone at war three times with India; the border with India is named as the tensest borderlines of the world. Disagreements with India and lack of dispute settlement mechanisms have negatively effected the peace in the region, influx of illegal weapons and refugees from Afghanistan as an outcome of 9/11 incidence, have exasperated the criticality of levels of internal conflict in Pakistan. Our empirical findings are based on the data collected on regional conflict levels, regional trade, global trade, comparative defence capabilities of the region in contrast to Pakistan and the government regime (Autocratic, Democratic) over 1972-2007. It has been proposed in this paper that the intent of domestic conflict is associated with the conflict in the region, regional trade, global trade and the government regime of Pakistan. The estimated model (OLS) implies that domestic conflict is effected positively and significantly with long term impact of conflict in the region. Also, if defence capabilities of the region are better than that of Pakistan it effects domestic conflict positively and significantly. Conflict in neighbouring countries are found as a source of domestic conflict in Pakistan, whereas the regional trade as well as type of government regimes in Pakistan lowered the intensity of domestic conflict significantly, while globalized trade imply risk of domestic conflict to be reduced but not significantly.

Keywords: conflict, regional trade, socio-politcal instability

Procedia PDF Downloads 274

Authors: Asanga Gunawansa, Shenella Fonseka

Abstract:

On-demand bonds, also known as unconditional bonds, are commonplace in the construction industry as a means of safeguarding the employer from any potential non-performance by a contractor. On-demand bonds may be obtained from commercial banks, and they serve as an undertaking by the issuing bank to honour payment on demand without questioning and/or considering any dispute between the employer and the contractor in relation to the underlying contract. Thus, whether or not a breach had occurred under the underlying contract, which triggers the demand for encashment by the employer, is not a question the bank needs to be concerned with. As a result, an unconditional bond allows the beneficiary to claim the money almost without any condition. Thus, an unconditional bond is as good as cash-in-hand. In the past, establishing fraud on the part of the employer, of which the bank had knowledge, was the only ground on which a bank could dishonour a claim made under an on-demand bond. However, recent jurisprudence in common law countries shows that courts are beginning to consider unconscionable conduct on the part of the employer in claiming under an on-demand bond as a ground that contractors could rely on the prevent the banks from honouring such claims. This has created uncertainty in connection with on-demand bonds and their liquidity. This paper analyzes recent judicial decisions in four common law jurisdictions, namely, England, Singapore, Hong Kong, and Sri Lanka, to identify the scope of using the concept of “unconscionability” as a ground for preventing unreasonable claims for encashment of on-demand bonds. The objective of this paper is to argue that on-demand bonds have lost their effectiveness as “cash-in-hand” and that this is, in fact, an advantage and not an impediment to international commerce, as the purpose of such bonds should not be to provide for illegal and unconscionable conduct by the beneficiaries.

Keywords: fraud, performance guarantees, on-demand bonds, unconscionability

Procedia PDF Downloads 68

Authors: Sevgi Karaca

Abstract:

Since December 6, 2018, mediation has become mandatory for commercial disputes under the Turkish Commercial Code. Mandatory mediation became one of the “causes of action”, and being compulsory means starting the mediation process before going to court. As it contemplates looking at “the causes of the action”, the terminology may lead to misinterpretation of the core of the phrases. However, the terms pertain to a prerequisite for starting the lawsuit. The court will examine failure to comply with such requirements, and the case will be dismissed without further action. Türkiye’s use of obligatory mediation is highly unusual. It is neither judge-led nor judge-assisted mediation but rather a mediation conducted outside of court with the participation of a third party (mediators). What distinguishes it is the incorporation of obligatory mediation into the causes of actions listed in the Code of Civil Procedure. Being one of the causes of action in a legal case implies that the absence of any of them may result in the procedural dismissal of the case without any further action. The case must be presented to the mediator first, and if the parties are unable to reach an agreement, they must deliver the results of the mediation session. Other than submitting the minutes, parties are ineligible to file a lawsuit. However, despite a lengthy history of use in England and Wales, there are considerable reservations about making mediation mandatory. The Civil Procedure Code does not explicitly mention making mediation mandatory. For the time being, there is no Mediation Code, and case law limits the growth of obligatory mediation. Some renowned judges voiced their desire to re-evaluate the notion of required mediation, prompting the Civil Justice Council to release a study in 2021 on the significance of amending case law and the high value of mandatory mediation. By contrasting the approaches to mandatory mediation in England and Wales, the study will investigate the method of controlled mandatory mediation and its effects on the success of mediation in Türkiye.

Keywords: alternative dispute resolution, case law, cause of action, litigation process, mandatory mediation

Procedia PDF Downloads 50

Authors: Mhd. Zakiul Fikri, M. Agus Maulidi

Abstract:

Indonesia is a constitutional state. As the constitutional state, Indonesia is not only using a single legal system, but also adopting three legal systems consist of: The European continental legal system or positive law of Indonesia, adat law system, and legal system of religion. This study will discuss Marosok tradition in the process of buying and selling cattle in Payakumbuh: a comparative study between adat law and positive law of Indonesia. The objectives of this research are: First, to find the meaning of the philosophical of Marosok tradition in Payakumbuh. Second, to find the legal implications of the Marosok tradition reviewed aspects of adat law and positive law of Indonesia. Third, to find legal procedure in arbitrating the dispute wich is potentially appear in the post-process of buying and selling cattle based on positive law and adat law adopted in Indonesia. This research is empirical legal research that using two model approaches which are statute approach and conceptual approach. Data was obtained through interviews, observations, and documents or books. Then a method of data analysis used is inductive analysis. Finally, this study found that: First, tradition of Marosok contains the meaning of harmonization of social life that keep people from negative debate, envy, and arrogant. Second, Marosok tradition is one of the adat law in Indonesia; it is one of contract law in the process of buying and selling. If the comparison between the practice Marosok tradition as adat law with the provisions of Article 1320 book of civil code about the terms of the validity of a contract, the elements contained in the provisions of these regulations are met in practice Marosok. Thus, the practice of Marosok in buying and selling cattle process in Payakumbuh justified in view of the positive law of Indonesia. Last of all, all kinds of disputes arising due to contracts made by Marosok tradition can be resolved by positive law and adat law of Indonesia.

Keywords: Adat law, contract, Indonesia, Marosok

Procedia PDF Downloads 283

Authors: Damayanti Sen

Abstract:

The Fair and Equitable Treatment standard has emerged as a core tenet of a formulated legal structure aimed at encouraging investment through the granting of a secure and stable environment for the investor in the Host State. As an absolute, non-contingent standard, it constitutes an independent and reliable system for the protection of the investor and is frequently invoked and applied in investor-state dispute settlement under bilateral and multilateral investment treaties. Thus far, the standard has been examined principally as a measure for determining the responsibility of host countries towards investors and investments. The conduct of investor in applying the Fair and Equitable Treatment Standard is relatively unexplored. Such an assessment may be necessary in light of the development of new defenses to demands of host governments to confine the application of the standard in order to ensure a proper balance between the protection of investors and the inherent right of a State to regulate economic conduct within its borders. This paper explores the implications of including considerations of investor conduct in the determination of whether an act of the host country’s administrative and/or judicial authorities has breached the fair and equitable treatment principle. The need for such defenses are of special concern for governments of developing countries, whose limited resources can affect their ability to provide an effective evaluation of the nature of the proposed investment, and, subsequently, to ensure that the expected benefits are realized. On the basis of conceptual analysis, and emerging international judicial and arbitral case law, this paper suggests that investor duties such as, the avoidance of unconscionable conduct, the reasonable assessment of investment risk in the host country, and a duty to operate an investment reasonably are leading to a new limit upon the fair and equitable treatment standard- one that can be succinctly captured in the phrase “Caveat Investor”.

Keywords: BITs, FET Standard, investor behavior, arbitral case law

Procedia PDF Downloads 289

Authors: Pritam Kumar Ghosh

Abstract:

The phenomenon of inter-country parental child removal and the protection of children against removal from lawful custody by their own parents has been a major issue over the last five decades. This occurs when parents take away their children during pending divorce and custody proceedings or in violation of pre-existing foreign or Indian custody orders through which they may have obtained visitation rights only after divorce but not permanent custody. Even though considerable efforts have been made by the Indian judiciary to resolve the issue, a lot is still left to be desired. A study of the spate of judicial decisions on the issue since 1970 reveals that judges have attempted to resolve the issue mainly through the application of the existing personal law regime and the principle of the best interest of the child. This has made the position of law extremely confusing. The existing precedential jurisprudence contains a wide variety of custody orders in the name of enforcement of the paramount consideration of the best interest and welfare of children. The problem is aggravated by the fact that India has decided not to accede to the Hague Abduction Convention of 1980, which is the main international instrument combating the issue. In this context, the paper discusses the reasons behind the rising instances of inter-country parental child removals. It then goes on to analyze the existing jurisprudence of international child custody disputes in India, which have come before courts post-removal of children from lawful custody. The paper concludes by suggesting essential reforms in the existing Indian legal framework governing the issue. In the process, the paper proposes new legislation for India governing inter-country parental child removals and subsequent custody disputes. The possible structure and content of this new law shall also be outlined as a part of the paper.

Keywords: custody, dispute, child removal, Hague convention

Procedia PDF Downloads 46

Authors: Mubashra Shaheen

Abstract:

The conflict over the South China Sea (SCS) is a complex imbroglio spanning over several territorial and maritime claims involving two major island groups, the Paracels and the Spratlys. It has become a major source of geopolitical competition between the United States and China. The study's overall objective is to understand China's land reclamations and assertive behavior in the South China Sea, which lies between both the Western Pacific and the Indian Ocean. Over half of global commerce passes through these waterways, which host a great amount of marine life and hydrocarbon deposits. China's sand-filling and island-building strategy in the South China Sea is motivated by its goal of privatizing all these riches as well as the routes. It would raise China to the pinnacle of world power status as well as allow it to threaten the dominance of the U.S. The study will examine China's assertive behavior and modernization plans as well as the United States' quest for supremacy through the lens of realists. While using a qualitative method of analysis, the study will examine China's nine-dash line claims and Exclusive Economic Zones (EEZs), UNCLOS, and U.S.-China divergence over international law considerations to pacify the tensions in the South China Sea. This paper is intended to explore the possible answers to the following questions: (1) Why does China’s rise necessitate the US's efforts to contain and encircle it through the lending of a hand to strategic partners and allies in the South China Sea? (2) Why South China Sea dispute is so complex imbroglio? (3) What are US-China international law considerations regarding the South China Sea? The study will further follow the bellow research procedure: 1: Comparative Legal Method: This method simply chalk-outs the follow of few steps that discarnate the positive and negative effects of the great power competitions. 2: Conceptualization: The conceptualization of the policies of containment defines and differentiates two different problems behind the persuasive means of hegemony and dominance in the strategic milieu.

Keywords: us, china, south china sea, unclos

Procedia PDF Downloads 60

Authors: M. Wangai

Abstract:

Following the promulgation of a new Constitution of Kenya in 2010, wide-ranging proposals for reform of the criminal justice system have been made. Proposed measures include a clear and separate system of dealing with juvenile offenders with a greater focus on rehabilitation and reintegration. As part of a broader constitutional transition, this article considers the contribution of restorative justice to reforming the youth justice system. The paper analyses Kenya’s juvenile justice legal framework measured against current international trends in youth justice. It identifies the first post-independence juvenile justice system as a remnant of the colonial period and notes that the post-2001 system is a marked improvement. More recent legal and institutional efforts to incorporate restorative justice are also examined. The paper advocates further development of the juvenile justice system by mainstreaming of restorative justice principles through national level legislative amendments. International and comparative perspectives are used to inform a diversion centered model of restorative justice. In addition, a case is made for the use of existing forms of alternative dispute resolution. Conscious of a tense political climate, the paper also proposes strategies to address challenges posed by a punitive penal environment, chiefly the linking of restorative justice to wider democratic goals and community spirit. The article concludes that restorative justice led juvenile justice reform will contribute to better treatment of young offenders under the criminal justice system and has the potential to set a new precedent for fair, sustainable and effective justice. Further, as part of far-reaching criminal justice reform, the proposed efforts may strengthen democratic progress in Kenya’s ensuing phase of political transition.

Keywords: constitutional transition, criminal justice, restorative justice, young offenders

Procedia PDF Downloads 119

Authors: Charlotte Williams

Abstract:

Yale University Professor Hiram Bingham’s discovery of Machu Picchu in 1911 spurred an international interest in the Inca Empire, and with it, a dispute with the Peruvian government over who had rightful jurisdiction and curatorship over Inca history. By 2011, the Peruvian government initiated a legal battle for the return of artifacts that Bingham had removed from Machu Picchu, successfully returning them not to the site of Machu Picchu, but to Cusco, employing the rationale that the ancient Inca capital housed descendants of the Inca empire. This conflation of the past and present can be traced to a largely unanalyzed study that accompanied Bingham’s expedition: an ethnographic analysis of Inca descendants, which at the time portrayed indigenous Peruvian Andean peoples as remnants of a lost civilization, using Cusco as an assumed repository for people with 'Inca' characteristics. This study draws from the original Yale Peruvian Expedition archives, the Cusco Library archives, and in-depth interviews with curators of the Inca Museum and Machu Picchu Museum to analyze both the political conflict that emerged as a reaction to the ethnographic study, and how the study articulated with an inflating tourism market attempting to define what it meant to be Inca to an international public. The construction of the modern Inca as both directors of tourism management and purveyors of their archaeological material culture points to a unique case in which modern Peruvian citizens could claim heritage to an Inca past despite a lack of recognition as a legally defined group. The result has far-reaching implications, since Bingham’s artifacts returned not necessarily to a traditional nation-state, but to an imagined one, broadening the conditions under which informal repatriations can occur.

Keywords: archaeology of memory, imagined communities, Incanismo, repatriation

Procedia PDF Downloads 141

Authors: Chloe Fauchon

Abstract:

In Europe, the right to a fair trial is enshrined in the European Convention on Human Rights, signed in 1950, in its famous Article 6, and, in the field of the European Union, in Article 47 of the Charter of Fundamental Rights, binding since 2009. The right to a fair trial is, therefore, a fundamental right protected by all the relevant treaties. The right to a fair trial is an "umbrella right" which encompasses various sub-rights and principles. Although this right applies in all the proceedings, it gets a special relevance in criminal matters and, particularly, regarding the defendant. In criminal proceedings, the parties are not equal: the accusation is represented by a State-organ, with specific prerogatives, and the defense does not benefit from these specific powers and is often inexperienced in criminal law. Equality of arms, and consequently the right to a fair trial, needs some specific mechanisms to be effective in criminal proceedings. For instance, the defendant benefits from some procedural rights, such as the right to a lawyer, the right to be informed of the charges against them, the right to confront witnesses, and so on. These rights aim to give the defendant the tools to dispute the accusation. The role of the defense is, therefore, very important in criminal matters to avoid unjustified convictions. This specificity of criminal matters justifies that the focus will be put on them during this study. Then this paper will also focus on French and Spanish legal orders. Indeed, if the European Court and Convention on Human Rights are the most famous instruments to protect the right to a fair trial, this right is also guaranteed at a constitutional level in European national legal orders in Europe. However, this enshrinement differs from one country to the other: for instance, in Spain, the right to a fair trial is protected explicitly by the 1978 constitutional text, whereas, in France, it is more of a case-law construction. Nevertheless, this difference between both legal orders does not imply huge variations in the substantive aspect of the right to a fair trial. This can be specifically explained by the submission of both States to the European Convention on Human Rights. This work aims to show that, although the French and Spanish legal orders differ in the way they protect the right to a fair trial, this right eventually has the same substantive meaning in both legal orders.

Keywords: right to a fair trial, constitutional law, French law, Spanish law, European Court of Human Rights

Procedia PDF Downloads 33

Authors: Aditaya Narayan Mishra

Abstract:

Unequal distribution of environmental resources as a possible cause of conflict has been the topic of substantial research, and these connections have ruled the post-Cold War attention in the discourse of environmental security. In this category, considerable concentration has been given to water resources, on account of their important standing for human existence. Thus, water is considered to be one of the most important non-conventional security issues. As per this consideration, the case of India-Bangladesh is one of the most critical examples of disputes over transboundary water sharing. The concern regarding sharing of trans-boundary rivers has been the main focus of Bangladesh and India‘s relationship for the last forty-five years. Both countries share fifty-four rivers, most of which have originated in the Himalayan range. The main causes for problems in the sharing of the waters of trans-boundary rivers between India and Bangladesh include the: Farakka Barrage, Teesta river sharing issue, River linking project and Tipaimukh Dam. The construction of Farakka barrage across the Ganga River was the beginning of water dispute. Attempts at unilateral exploitation of the trans-boundary water resources led to inter-state conflicts that spilled over into other areas of bilateral disputes between India and Bangladesh. Apart from Farakka, Barrage, the disputes over Teesta River sharing, River linking project and Tipaimukh Dam are also vital contents for the both countries bilateral diplomacy. Till date, India and Bangladesh have signed five treaties regarding water sharing. However, all these treaties have been rendered worthless due to mistrust and political upheaval in both countries. The current paper would address all these water sharing disputes between India and Bangladesh with focus on the various policy responses (both bilateral and multilateral initiatives) to deal with these water sharing disputes. It will try to analyze the previous agreements and their drawbacks and loopholes. In addition, it will mention the reasons for water sharing cooperation between India and Bangladesh.

Keywords: India and Bangladesh relations, water disputes, Teesta, river linking project, Tipaimukh Dam, Farakka, policy responses

Procedia PDF Downloads 204

Authors: Ketevan Epadze

Abstract:

The paper aims to examine conflicting historical narratives proposed by the Georgian and Abkhazian scholars on the territorial affiliation of Abkhazia in the 1950s, explain how these narratives were connected to the Soviet nationalities policy after WW II and demonstrate the dynamic of the narratives’ battle in the last years of the Soviet system, which was followed by military conflict in the post-Soviet era. Abkhazia –a breakaway region of Georgia- self-declared its independence in 1992. Historical dispute on the territorial rights of Abkhazia emerged long before the military conflict began and was connected to the theory of Abkhazian ethnogenesis written by the Georgian literary scholar Pavle Ingorokva. He argued that medieval Abkhazians were Georgians, while modern Abkhazians are newcomers in Abkhazia. After the de-Stalinization, Abkhazian historians developed historical narrative opposed to Ingorokva’s theory. In the 1980s, Georgian dissidents who strove for Georgia’s independence used Ingorokva’s thesis to oppose Abkhazians desire for self-determination and sovereignty. Abkhazian political actors in their turn employed opposite historical arguments to legitimate their rights over autonomy. Ingorokva’s theory is one of the principal issues, discussed during the Georgian-Abkhazian dialogue; it often confuses Georgians and gives the reasons to Abkhazians for complaining about the Georgian discrimination in the Soviet past. The study is based on the different kind of sources: archival materials of the 1950s (Communist Party Archive of Georgia, Soviet Journal ‘Mnatobi’), the book by Pavle Ingorokva ‘Giorgi Merchule’ (1947-1954) and Zurab Anchabadze’s responsive work to Ingorokva’s book – ‘From the medieval history of Abkhazia’ (1956-1959), political speeches of the Georgian and Abkhazian political actors in the 1980s, secondary sources on the Soviet nationalities policy from the 1950s to the 1990s.

Keywords: Soviet, history, ethnicity, nationalism, politics, post-Soviet, conflict

Procedia PDF Downloads 140

Authors: Omneya N. Mekhaimer, Elkhayam M. Dorra, A. Samer Ezeldin

Abstract:

Over the recent decades, studies on organizational culture have gained global attention in the business management literature, where it has been established that the cultural factors embedded in the organization have an implicit yet significant influence on the organization’s success. Unlike other industries, the construction industry is widely known to be operating in a dynamic and adversarial nature; considering the unique characteristics it denotes, thereby the level of disputes has propagated in the construction industry throughout the years. In the late 1990s, the International Council for Research and Innovation in Building and Construction (CIB) created a Task Group (TG-23), which later evolved in 2006 into a Working Commission W112, with a strategic objective to promote research in investigating the role and impact of culture in the construction industry worldwide. To that end, this paper aims to study the influence of organizational culture in the contractor’s organization on the frequency of disputes caused between the owner and the contractor that occur in commercial projects based in Egypt. This objective is achieved by using a quantitative approach through a survey questionnaire to explore the dominant cultural attributes that exist in the contractor’s organization based on the Competing Value Framework (CVF) theory, which classifies organizational culture into four main cultural types: (1) clan, (2) adhocracy, (3) market, and (4) hierarchy. Accordingly, the collected data are statistically analyzed using Statistical Package for Social Sciences (SPSS 28) software, whereby a correlation analysis using Pearson Correlation is carried out to assess the relationship between these variables and their statistical significance using the p-value. The results show that there is an influence of organizational culture attributes on the frequency of disputes whereby market culture is identified to be the most dominant organizational culture that is currently practiced in contractor’s organization, which consequently contributes to increasing the frequency of disputes in commercial projects. These findings suggest that alternative management practices should be adopted rather than the existing ones with an aim to minimize dispute occurrence.

Keywords: construction projects, correlation analysis, disputes, Egypt, organizational culture

Procedia PDF Downloads 67

Authors: Hami-Ziniman Revital, Ashwall Rachelly

Abstract:

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

Procedia PDF Downloads 315