Search results for: international water dispute
Commenced in January 2007
Frequency: Monthly
Edition: International
Paper Count: 11858

Search results for: international water dispute

11858 The Right to Water in the Lancang-Mekong River Basin Disputes

Authors: Heping Dang, Raymond Yu Wang

Abstract:

The Langcang-Mekong River is the most important international watercourse in mainland Southeast Asia. In recent years, the six riparian states, China, Myanmar, Laos, Thailand, Cambodia and Vietnam, have confronted increasing disputes over the use of the trans-boundary water. To settle these disputes and protect the fundamental right to water, quite a few inter-state mechanisms have been established, such as the Mekong River Commission, the economic cooperation program of the Greater Mekong Subregion, the ‘Belt and Road Initiative’ and the ‘Lancang-Mekong Cooperation Mechanism’ and the ‘Lower Mekong Initiative’. Non-Governmental Organizations (NGOs) have also been an important and constructive institutional entrepreneur in trans-boundary water governance. Although the status and extent of the right to water are yet to be clearly defined, this paper aims to 1) unpack how the right to water is interpreted and exercised in the Lancang-Mekong River Basin Dispute; and 2) to evaluate the roles of the right to water in settling international water disputes. To achieve these objectives, Secondary data such as archival documents of international law and relevant stakeholders will be compiled for analysis. First-hand information about the organizational structure, accountability, values and strategies of the international mechanisms and NGOs in question will also be collected through fieldwork in the Mekong river basin. Semi-structural interviews, group discussions and participatory observation will be conducted to collect data. The authors have access to the fieldwork because they have abundant experience of collaborating with Mekong-based international NGOs in previous research projects. This research will display how the concepts and principles of international law and the UN guidelines are interpreted in practice. These principles include the definition and extent of the right to water, the practical use of ‘vital human need’, the indicators of ‘adequacy of water’ including ‘availability, quality and accessibility’, and how the right to water is related to the progressive realization of the right to life. This down-to earth research will enrich the theoretical discussion of international law, particularly international human rights law, within the UN framework. Moreover, the outcomes of this research will provide new insights into the roles that the right to water might play in consensus-building and dispute settlement in a rapidly changing context, where water is pivotal for poverty alleviation, biodiversity conservation and the promotion of sustainable livelihoods.

Keywords: international water dispute, Lancang-Mekong River, right to water, state and non-state actors

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11857 Market Access for Foreign Investment in Host States: Municipal Law and International Law

Authors: Qiang Ren

Abstract:

A growing number of states are improving domestic law to better protect and promote foreign investment by changing/upgrading the existing law. However, inconsistency occurs because the new law is different from the ‘old’ law. For example, China has issued an unprecedented Foreign Investment Law and several regulations allowing comprehensive market access for foreign investment in most energy sectors since 2020. However, some laws, rules, regulations, etc. enacted previously remain valid, and the provisions regulating foreign investment do not grant full market access to foreign investment as such. The inconsistency above makes it necessary to investigatehow the international investment treaty law and dispute settlement practice respond to the ‘inconsistency and conflict’ in municipal law andwhat remedy foreign investors can seek under international law if the investment is denied due to inconsistency. Ultimately, it aims to examine how international tribunals should balance the gradually developing legal system of host states and the protection of foreign investors and investments if the host states cannot provide consistency during such a transition period of law development. The research seeks to answer these questions by making a comparative analysis of domestic law on market access to foreign investment, international investment treaties, and dispute arbitral practice. The objective is to examine how international investment treaty law and international investment dispute settlement practice evaluate the conflicts in the municipal law of host states in the admission of foreign investment. It also explores the possibility of harmonisation among them.

Keywords: municipal law, protect and promote foreign investment, international law, host states

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11856 Materialisation of Good Governance Concept by Effective Investment Dispute Resolution in the European Union

Authors: Jagna Mucha, Anna Kańciak

Abstract:

The concept of good governance constitutes a wide perspective for academic discussion, because it provides a substantial theoretical background for settling many practical problems faced contemporarily by the EU. The basic assumptions of good governance have basically remained unchanged since the 90’s, when the concept was introduced by the World Bank, although the scholarly discussions reveal new facets of the said concept, when related to specific domains. The paper discusses the application of the specific elements of the concept of good governance in the field of the international investment law. Specifically, it seeks to demonstrate that the concept of good governance regulates the issue of international investments in that, among others, it requires the application of the alternative dispute resolution in order to make the investment law enforceable in the best possible way.

Keywords: dispute resolution, european union, investments, good governance

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11855 Nature of Maritime Dispute Resolution by Arbitration: USA as a Reference Point

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

Abstract:

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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11854 International Dispute Settlements According to the Law of the Sea: Coastal States vs. Maritime Conflicts

Authors: Ermal Xhelilaj

Abstract:

International practice has revealed that many maritime conflicts have been initiated as a direct result of coastal states’ disagreements over maritime boundaries and other related maritime issues. These disagreements embrace relevant problematic matters reflecting international conflicts, which in order to prevent further escalation into international crises or even armed conflicts have to be legally resolved. The most challenging cases in international system involve regional or bilateral disputes regarding maritime boundaries delimitations between states, which may result in the activation of respective armed forces, considered crucial elements for the protection of territorial sovereignty. Taken under considerations the legal issues that Law of the Sea Convention (1982) reflects, including the legal provisions over disputes settlements, the importance of analyzing this paramount issue might be considered relevant at present. Therefore, this study will be focused in discussing legal and practical issues that concern the resolution of international maritime disputes seen from international relations point of view, by initially analyzing UN Convention on the Law of the Sea (UNCLOS 1982) relevant legal provisions, further discussing several notable cases over maritime boundaries delimitations as well as concluding with some recommendations related to this issue. The author is of the opinion that although the boundaries delimitation’s legal regime of UNCLOS reflects important standards for dispute settlements, yet considering the complex situation that represents this issue, relevant amendments might be necessary to be undertaken by international maritime organizations in order to further clarify the aforementioned legal matter.

Keywords: Law of the Sea, maritime conflicts, dispute settlements, international relations

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11853 Namibian Inhabitants’ Appeals for Recognition at the United Nations, 1947-1962

Authors: Seane Mabitsela

Abstract:

The Territory of Namibia was entrusted to South Africa as a Mandate under the League of Nations Covenant. After the dissolution of the League of Nations and the commencement of United Nations operations, South Africa's conception of its legal obligations under the mandate varied from those of other members of the United Nations. Because of that, the General Assembly requested the International Court of Justice for an Advisory Opinion on the international obligations of South Africa arising therefrom. The International Court of Justice declared that South West Africa was still a mandatory territory under the Covenant of the League of Nations. It also held that South Africa continued to transmit petitions from inhabitants of the territory, the supervisory functions to be exercised by the United Nations, to which the annual reports and the petitions were to be submitted. Subject to this judgement, the question of South West Africa remained a dispute relating to the mandate brought before the International Court of Justice against South Africa. The International Court of Justice and South Africa dispute reflected the nature of the Namibian inhabitants’ appeal for recognition at the United Nations.

Keywords: International Court of Justice, Namibia, petitions, United Nations

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11852 Development and State in Brazil: How Do Some Institutions Think and Influence These Issues

Authors: Alessandro Andre Leme

Abstract:

To analyze three Brazilian think tanks: a) Fernando Henrique Foundation; b) Celso Furtado International Center; c) Millennium Institute and how they dispute interpretations about the type of development and State that should be adopted in Brazil. We will make use of Network and content analysis of the sites. The analyzes show a dispute that goes from a defense of ultraliberalism to developmentalism, going through a hybrid between State and Market voiced in each of the Think Tanks.

Keywords: sociopolitical and economic thinking, development, strategies, intellectuals, state

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11851 OAS and Interstate Dispute Resolution at the Beginning of the 21st Century: General Pattern and Peculiarities

Authors: Victor Jeifets, Liliia Khadorich

Abstract:

The paper describes the OAS role in dispute resolution. The authors make an attempt to identify a general pattern of the OAS activities within the peaceful settlement of interstate conflicts, in the beginning of 21st century, as well as to analyze some features of Honduras–Belize, Nicaragua–Honduras, Honduras–El Salvador, Costa-Rica–Nicaragua, Colombia–Ecuador cases.

Keywords: OAS, peace maintenance, border dispute, dispute resolution, peaceful settlement

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11850 Recognition and Enforcement of International Commercial Arbitral Awards in Sri Lanka, A Lesson from Singapore

Authors: Kahandawala Arachchige Thani Chathurika Kahandawala

Abstract:

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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11849 Toward Green Infrastructure Development: Dispute Prevention Mechanisms along the Belt and Road and Beyond

Authors: Shahla Ali

Abstract:

In the context of promoting green infrastructure development, new opportunities are emerging to re-examine sustainable development practices. This paper presents an initial exploration of the development of community-investor dispute prevention and facilitation mechanisms in the context of the Belt and Road Initiative (BRI) spanning Asia, Africa, and Europe. Given the widescale impact of China’s multi-jurisdictional development initiative, learning how to coordinate with local communities is vital to realizing inclusive and sustainable growth. In the 20 years since the development of the first multilateral community-investor dispute resolution mechanism developed by the International Finance Centre/World Bank, much has been learned about public facilitation, community engagement, and dispute prevention during the early stages of major infrastructure development programs. This paper will explore initial findings as they relate to initiatives underway along the BRI within the Asian Infrastructure Investment Bank and the Asian Development Bank. Given the borderless nature of sustainability concerns, insights from diverse regions are critical to deepening insights into best practices. Drawing on a case-based methodology, this paper will explore the achievements, challenges, and lessons learned in community-investor dispute prevention and resolution for major infrastructure projects in the greater China region.

Keywords: law and development, dispute prevention, sustainable development, mitigation

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11848 The Role and Function of National Land Authority as Mediator in Land Dispute Settlements in Indonesia

Authors: Nia Kurniati, Efa Laela Fakhriah

Abstract:

The regulation in Indonesia provides space for the land dispute to be settled outside the court by the government through National Land. In this case, the bureaucrat of Badan Pertanahan Nasional (BPN) acts as mediator to reach a fair agreement between the disputing parties. Land dispute is from a party who denies the ownership of the other party of a land and denies legal-technical facts written on land certificate published by BPN. Appointing the bureaucrat of BPN as mediator in dispute settlements may possibly create conflict of interest since the object. It has become a concern since bureaucrat of BPN acts as mediator, he will be bias and partial in assisting the dispute settlement, thus the spirit and purposes of mediation will be hampered. This issue triggers to be thoroughly examined further in a relation with the role and function of BPN as land dispute mediator. The methodology used in this research is a normative-legal one with qualitative-legal analytical method. The object of this research is in the form of random sampling of land dispute cases being occurred in some areas. Several principles in mediation have to be made as the base of the consideration to appoint bureaucrat of BPN as mediator since the mediator is an impartial third party, working with both disputing parties and assisting them to reach a fair resolution written in agreement as a foundation of land dispute settlement. The existence of BPN as mediator in land dispute settlement encounters conflict of interest which uphold legal uncertainty to act objectively.

Keywords: Indonesia, land dispute, mediator, national land authority

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11847 The Growth of E-Commerce and Online Dispute Resolution in Developing Nations: An Analysis

Authors: Robin V. Cupido

Abstract:

Online dispute resolution has been identified in many countries as a viable alternative for resolving conflicts which have arisen in the so-called digital age. This system of dispute resolution is developing alongside the Internet, and as new types of transactions are made possible by our increased connectivity, new ways of resolving disputes must be explored. Developed nations, such as the United States of America and the European Union, have been involved in creating these online dispute resolution mechanisms from the outset, and currently have sophisticated systems in place to deal with conflicts arising in a number of different fields, such as e-commerce, domain name disputes, labour disputes and conflicts arising from family law. Specifically, in the field of e-commerce, the Internet’s borderless nature has served as a way to promote cross-border trade, and has created a global marketplace. Participation in this marketplace boosts a country’s economy, as new markets are now available, and consumers can transact from anywhere in the world. It would be especially advantageous for developing nations to be a part of this global marketplace, as it could stimulate much-needed investment in these nations, and encourage international co-operation and trade. However, for these types of transactions to proliferate, an effective system for resolving the inevitable disputes arising from such an increase in e-commerce is needed. Online dispute resolution scholarship and practice is flourishing in developed nations, and it is clear that the gap is widening between developed and developing nations in this regard. The potential for implementing online dispute resolution in developing countries has been discussed, but there are a number of obstacles that have thus far prevented its continued development. This paper aims to evaluate the various political, infrastructural and socio-economic challenges faced in developing nations, and to question how these have impacted the acceptance and development of online dispute resolution, scholarship and training of online dispute resolution practitioners and, ultimately, developing nations’ readiness to participate in cross-border e-commerce.

Keywords: developing countries, feasibility, online dispute resolution, progress

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11846 Accessing the 'No-Harm' Principle of Protection of the Mekong River’s Environment

Authors: Hang Thuy Tran, Hanh Hong Pham, Ha Thanh Hoa

Abstract:

From 2009 up to now, the water quantity and water quality of the Mekong River, located in the South of Vietnam, have been significantly reduced. The phenomenon happened as a result of climate change and human activities. The Mekong River is an international source of water, flowing across the borders of 6 countries, with Vietnam downstream. Activities to block the flow or build dams to construct hydroelectricity or diversion in upstream countries are either the direct cause or the risk of further deterioration of the water quality and quantity of the Mekong River, as evidenced by two phenomena which are a saline intrusion and transboundary water pollution. The protection of the crucial source of water is done through bilateral and multilateral cooperation mechanisms, notably the Mekong River Commission, established by members of the Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin 1995. In this document, under Article 7, the 'no-harm' principle requires member states to take appropriate measures to prevent causing substantial damage to other member states. This principle has been practiced through the work of a number of committees established by the commission. However, the content of the rules is undetailed, lacks an implementation monitoring mechanism, and has an unreasonable dispute solution. With such difficulties, the provisions in the principle of no-harm are not adequate to protect the Mekong River's water resources in the current context.

Keywords: no-harm principle, transboundary water pollution, Mekong Commission, international source of water

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11845 Alternate Dispute Resolution: Expeditious Justice

Authors: Uzma Fakhar, Osama Fakhar, Aamir Shafiq Ch

Abstract:

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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11844 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

Abstract:

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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11843 Consensus, Federalism and Inter-State Water Disputes in India

Authors: Amrisha Pandey

Abstract:

Indian constitution has distributed the powers to govern and legislate between the centre and the state governments based on the list of subject-matter provided in the seventh schedule. By that schedule, the states are authorized to regulate the water resource within their territory. However, the centre/union government is authorized to regulate the inter-state water disputes. The powers entrusted to the union government mainly deals with the sharing of river water which flows through the territory of two or more states. For that purpose, a provision enumerated in Article 262 of the Constitution of India which empowers the parliament to resolve any such inter-state river water dispute. Therefore, the parliament has enacted the - ‘Inter-State River Water Dispute Tribunal, Act’, which allows the central/union government to constitute the tribunal for the adjudication of the disputes and expressly bars the jurisdiction of the judiciary in the concerned matter. This arrangement was intended to resolve the dispute using political or diplomatic means, without deliberately interfering with the sovereign power of the states to govern the water resource. The situation in present context is complicated and sensitive. Due to the change in climatic conditions; increasing demand for the limited resource; and the advanced understanding of the freshwater cycle, which is missing from the existing legal regime. The obsolete legal and political tools, the existing legislative mechanism and the institutional units do not seem to accommodate the rising challenge to regulate the resource. Therefore, resulting in the rise of the politicization of the inter-state water disputes. Against this background, this paper will investigate the inter-state river water dispute in India and will critically analyze the ability of the existing constitutional, and institutional units involved in the task. Moreover, the competence of the tribunal as the adjudicating body in present context will be analyzed using the long ongoing inter-state water dispute in India – The Cauvery Water Dispute, as the case study. To conduct the task undertaken in this paper the doctrinal methodology of the research is adopted. The disputes will also be investigated through the lens of sovereignty, which is accorded to the states using the theory of ‘separation of power’ and the ‘grant of internal sovereignty’, to its federal units of governance. The issue of sovereignty in this paper is discussed in two ways: 1) as the responsibility of the state - to govern the resource; and 2) as the obligation of the state - to govern the resource, arising from the sovereign power of the state. Furthermore, the duality of the sovereign power coexists in this analysis; the overall sovereign authority of the nation-state, and the internal sovereignty of the states as its federal units of governance. As a result, this investigation will propose institutional, legislative and judicial reforms. Additionally, it will suggest certain amendments to the existing constitutional provisions in order to avoid the contradictions in their scope and meaning in the light of the advanced hydrological understanding.

Keywords: constitution of India, federalism, inter-state river water dispute tribunal of India, sovereignty

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11842 The Concept of Commercial Dispute Resolution through the Court in Indonesia

Authors: Anita Afriana, Efa Laela Fakhriah

Abstract:

The law of civil procedure which is currently in effect in Indonesia is still referring to the rules applicable at the time of the Dutch East Indies, that is Het Herziene Indonesisch Reglement (HIR) and Reglement Tot Regeling Van Het Rechtswezen In De gewesten Buiten Java En Madura (RBg). With the fact that the enactment of this has been very long, there are some things that are no longer suitable with the circumstances and needs of the community in seeking justice today. Therefore, a new regulation on the law of civil procedure is required and the discussions of the draft are currently being carried out. The fast examination of dispute in civil procedure is required to accelerate the growth of Indonesia’s economy by accelerating the dispute resolution method (time efficiency). With the provision of the quick examination on commercial disputes mentioned above, it is expected to benefit the community in order to obtain a tool of dispute resolution efficiently and effectively, so as making justice fast and inexpensive, especially for the resolution of commercial disputes.

Keywords: commercial dispute, civil law procedure, court, Indonesia

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11841 Alternative Dispute Resolution in the Settlement of Environmental Disputes in South Africa

Authors: M. van der Bank, C. M. van der Bank

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Alternative Dispute Resolution denotes all forms of dispute resolution other than litigation or adjudication through the courts. This definition of Alternative Dispute Resolution, however, makes no mention of a vital consideration. ADR is the generally accepted acronym for alternative dispute resolution. Despite the choice not to proceed before a court or statutory tribunal, ADR will still be regulated by law and by the Constitution. Fairness is one of the core values of the South African constitutional order. Environmental disputes occur frequently, but due to delays and costs, ADR is a mechanism to resolve this kind of disputes which is a resolution of non-judicial mechanism. ADR can be used as a mechanism in environmental disputes that are less expensive and also more expeditious than formal litigation. ADR covers a broad range of mechanisms and processes designed to assist parties in resolving disputes creatively and effectively. In so far as this may involve the selection or design of mechanisms and processes other than formal litigation, these mechanisms and processes are not intended to supplant court adjudication, but rather to supplement it. A variety of ADR methods have been developed to deal with numerous problems encountered during environmental disputes. The research questions are: How can ADR facilitate environmental disputes in South Africa? Are they appropriate? And what improvements should be made?

Keywords: alternative dispute, environmental disputes, non-judicial, resolution and settlement

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11840 Bias Minimization in Construction Project Dispute Resolution

Authors: Keyao Li, Sai On Cheung

Abstract:

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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11839 Revisiting Dispute Resolution Mechanisms in the Southern African Development Community: A Proposal for Synchronization

Authors: Tapiwa Shumba, Nyaradzo D. T. Karubwa

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Dispute resolution is the plinth of regional integration initiatives anchored on the rule of law and compliance with obligations. Without effective and reliable despite resolution mechanisms, it may be difficult to foster deeper integration. Within the Southern African Development Community (SADC) legal and institutional framework exists an apparent recognition that dispute resolution is an integral part of the regional integration. Almost all legal instruments of SADC include some provision for dispute resolution. Institutionally, the somewhat now defunct SADC Tribunal is meant to be the fulcrum for resolving disputes that arise under SADC instruments. However, after a closer analysis of the substance of these legal provisions and the attendant procedural mechanisms for addressing disputes, an argument can be made that dispute resolution in SADC is somewhat scant, fragmented and neglected. In most instruments, the common provision on dispute resolution appears to be a ‘mid-night clause’. In other instruments which have specialised provisions and procedures, questions of practicality and genius cannot be avoided. Worse still there now appears to be a lack of magnanimity between the substantive provisions in various instruments and the role of the transformed Tribunal. This scant, fragmented and neglected dispute resolution system may have an impact on the observance of the rule of law and compliance with obligations in the rules-based SADC system. This all, in turn, has an effect on the common agenda for deeper regional integration. This article seeks to expose this scant, fragmented and neglected SADC dispute resolution system and to propose a harmonised system that addresses these challenges. A ‘one stop shop’ system under a strengthened SADC tribunal is proposed as a responsive solution.

Keywords: regional integration, harmonisation, SADC tribunal, dispute resolution

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11838 Settlement of Dispute and the Islamic Financial Institutions

Authors: Yusuf Sani Abubakar

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This paper investigates mechanisms of settlement of disputes at the Islamic Financial Institutions (IFIs). Dispute settlement at the Islamic Financial Institutions (IFIs) can be both through litigation as well as Alternative Dispute Resolution (ADR). The paper aims to investigate how disputes are settled at the Islamic Financial Institutions (IFIs), as it is natural to have disagreements between different parties involved in the business of Islamic Financial Institutions (IFIs). The paper adopts a qualitative methodology where the sources are taken from journals, books, websites etc. In analyzing the data obtained from the sources, content analysis will be used. In addition to writings on this topic by various writers, this paper will add to the literature and will recommend certain effective ways of solving disputes arising between parties participating in the business of Islamic Financial Institutions (IFIs).

Keywords: Islamic finance, dispute resolution, Islamic financial institutions, litigation

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11837 AI-Based Technologies in International Arbitration: An Exploratory Study on the Practicability of Applying AI Tools in International Arbitration

Authors: Annabelle Onyefulu-Kingston

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One of the major purposes of AI today is to evaluate and analyze millions of micro and macro data in order to determine what is relevant in a particular case and proffer it in an adequate manner. Microdata, as far as it relates to AI in international arbitration, is the millions of key issues specifically mentioned by either one or both parties or by their counsels, arbitrators, or arbitral tribunals in arbitral proceedings. This can be qualifications of expert witness and admissibility of evidence, amongst others. Macro data, on the other hand, refers to data derived from the resolution of the dispute and, consequently, the final and binding award. A notable example of this includes the rationale of the award and specific and general damages awarded, amongst others. This paper aims to critically evaluate and analyze the possibility of technological inclusion in international arbitration. This research will be imploring the qualitative method by evaluating existing literature on the consequence of applying AI to both micro and macro data in international arbitration, and how this can be of assistance to parties, counsels, and arbitrators.

Keywords: AI-based technologies, algorithms, arbitrators, international arbitration

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11836 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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11835 Different Approaches to the Study of Territorial Dispute between China and India

Authors: Albina Muratbekova

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One of the main tensions and challenges in the development of Sino-Indian relation is the demarcation of its frontiers. The fact that throughout the history borders had never been demarcated on ground occur a dispute between China and India after receiving sovereignty. Boundaries of India and China are divided into three sectors: Eastern, Middle and Western. The middle sector runs from India’s Uttar Pradesh to the Punjab, 545 km length of the Line of Actual Control, the lines of which was confirmed at the 9th meeting of the Expert Group held in 2001, in New Delhi. Other two sectors are still not determined and cause disputes. A western sector of the frontier is the Aksai Chin plateau, covers areas of Ladakh, Tibet, and Sinkiang. Another disputed area lies in the Eastern sector in the Himalayan region, which after 1986 became the Indian state called Arunachal Pradesh. There are two different approaches in the ways of resolving the border dispute. Chinese side keeps an opinion that the border dispute must be resolved in a timely matter unless it is favorable for China, the resolution can be left to a later generation. While India’s government due to security reasons is eager to demarcate the border. In order to study this conflict was used as a descriptive-comparative-analytical method. Also, it was done a profound analyze of conflict nature.

Keywords: border dispute, China, India, territorial claim

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11834 Trace Metals in Natural Bottled Water on Montenegrin Market and Comaparison with Tap Water in Podgorica

Authors: Katarina Živković, Ivana Joksimović

Abstract:

Many different chemicals may occur in drinking water and cause significant human health risks after prolonged periods of exposure. In particular concern are contaminants that have cumulative toxic properties, such as heavy metals. This investigation was done to clarify concerns about chemical quality and safety of drinking tap water in Podgorica. For comparison, all available natural bottled water on Montenegrin market were bought. All samples (bottled water and tap water from Podgorica) were analyzed using ICP –OES on contents of Al, Cd, Pb, Cu, Zn,Cr, Fe, As and Mn. All results compared with the maximum concentration levels allowed by international standards and World Health Organization (WHO) guidelines. The results of analysis showed that all trace of heavy metals were very low and in same time below MCL according to WHO and International standard.

Keywords: inductively coupled plasma - optical emission spectrometry (ICP-OES), Montenegro (Podgorica), natural bottled water, tap water , trace of heavy metal

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11833 Positivism Legal Controversy: Dilemma Carok as Madura’s Culture through Indigenous Dispute Settlement in Indonesia

Authors: M. Yasin Al-Arif, Mohammad Faisol Soleh

Abstract:

The Indonesia’s Constitution in Article 18b explained that the state recognizes and respects indigenous peoples and their traditional rights that are guaranteed by the law. Despite already guaranteed its existence; in practice such indigenous law is often considered contrary to positive law by legal experts. It is because of legal positivism paradigm which requires the written law as the main reference for the settlement of legal disputes. Carok’s culture is one of the indigenous cultures of Madura to resolve legal disputes that still thrives until today. Carok’s culture is in outside the legal process, and through a fight between the disputing parties until one dies. On the other hand, the legal positivism does not give place to accommodate Carok as indigenous dispute settlement, until it must be solved through trial. This way of settlement has not been successfully satisfying the indigenous people, thus although it has been done through its verdict in the trial, but Carok still be used by them. From the explanation above, Carok’s culture must be accommodated as the main settlement process and legal process of law as the alternative to the effectiveness of dispute resolution in Madura Indonesia.

Keywords: carok, dispute settlement, legal positivism, madura’s culture

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11832 Identifying Reforms Required in Construction Contracts from Resolved Disputed Cases

Authors: K. C. Iyer, Yogita Manan Bindal, Sumit Kumar Bakshi

Abstract:

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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11831 Sustainable Transboundary Water Management: Challenges and Good Practices of Cooperation in International River Basin Districts

Authors: Aleksandra Ibragimow, Moritz Albrecht, Eerika Albrecht

Abstract:

Close international cooperation between all countries within a river basin has become one of the key aspects of sustainable cross-border water management. This is due to the fact that water does not stop at administrative or political boundaries. Therefore, the preferred mode to protect and manage transnational water bodies is close cooperation between all countries and stakeholders within the natural hydrological unit of the river basin. However, past practices have demonstrated that combining interests of different countries and stakeholders with differing political systems and management approaches to environmental issues upstream as well as downstream can be challenging. The study focuses on particular problems and challenges of water management in international river basin districts by the example of the International Oder River Basin District. The Oder River is one of the largest cross-border rivers of the Baltic Sea basin passing through Poland, Germany, and the Czech Republic. Attention is directed towards the activities and the actions that were carried out during the Districts' first management cycle of transnational river basin management (2009-2015). The results show that actions of individual countries have been focused on the National Water Management Plans while a common appointment about identified supra-regional water management problems has not been solved, and conducted actions can be considered as preliminary and merely a basis for future management. This present state raises the question whether the achievement of main objectives of Water Framework Directive (2000/60/EC) can be a realistic task.

Keywords: International River Basin Districts, water management, water frameworkdirective, water management plans

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11830 Mediation in Turkey

Authors: Ibrahim Ercan, Mustafa Arikan

Abstract:

In recent years, alternative dispute resolution methods have attracted the attention of many country’s legislators. Instead of solving the disputes by litigation, putting the end to a dispute by parties themselves is more important for the preservation of social peace. Therefore, alternative dispute resolution methods (ADR) have been discussed more intensively in Turkey as well as the whole world. After these discussions, Mediation Act was adopted on 07.06.2012 and entered into force on 21.06.2013. According to the Mediation Act, it is only possible to mediate issues arising from the private law. Also, it is not compulsory to go to mediation in Turkish law, it is optional. Therefore, the parties are completely free to choose mediation method in dispute resolution. Mediators need to be a lawyer with experience in five years. Therefore, it is not possible to be a mediator who is not lawyers. Beyond five years of experience, getting education and success in exams about especially body language and psychology is also very important to be a mediator. If the parties compromise as a result of mediation, a document is issued. This document will also have the ability to exercising availability under certain circumstances. Thus, the parties will not need to apply to the court again. On the contrary, they will find the opportunity to execute this document, so they can regain their debts. However, the Mediation Act has entered into force in a period of nearly two years of history; it is possible to say that the interest in mediation is not at the expected level. Therefore, making mediation mandatory for some disputes has been discussed recently. At this point, once the mediation becomes mandatory and good results follows it, this institution will be able to find a serious interest in Turkey. Otherwise, if the results will not be satisfying, the mediation method will be removed.

Keywords: alternative dispute resolution methods, mediation act, mediation, mediator, mediation in Turkey

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11829 Sea Border Dispute between Greece and Turkey in the Mediterrenean: Implications for Turkey’s Maritime Security and Its Military Spending

Authors: Aslihan Caliskan

Abstract:

The term Mediterranean comes from the Latin “mediterraneus” (Medius, "middle" plus Terra, "land, earth"). For the ancient Romans, the Mediterranean was the center of the earth as they knew it. The desire to gain control of the Mediterranean has led to disputes between many nations throughout history, some of which continue to this day. The recent major natural gas discoveries in the Mediterranean have aggravated ongoing tensions in some neighboring countries. The sea border dispute between Turkey and Greece & Greek-Cypriot side is one of the most critical conflicts in the Mediterranean Sea region. This unresolved dispute has many implications for all countries involved, as well as for third parties that have direct or indirect interests in the region. The research question of this context is what are the implications of this controversial sea border problem on the maritime security of Turkey and its military spending. In this paper, the quantitative method is used. Records from the Turkish Defense Ministry, data from the Turkish naval forces have been obtained. In addition, literature research and the United Nations Convention on the Law of the Sea (UNCLOS) application cases were evaluated, and an incident analysis was carried out. This research shows that the sea border dispute issue has a significant impact on the Turkish military both in terms of the structures required to ensure maritime and border security, as well as rising military costs and its macroeconomic implications. The paper begins with a brief overview of relevant principles and methods applied for delimiting th esea borders. The paper continues with a brief description and a background of the sea border dispute between Turkey and Greece & Greek-Cypriot side in the light of the United Nations Convention on the Law of the Sea (UNCLOS). An analysis of the implications of the dispute on Turkey’s maritime security and its military spending is provided in the following chapters. The paper ends with concluding remarks of the author, including suggestions for the way forward.

Keywords: sea border security, mediterranean sea, greece-turkey dispute, limitation of sea, united nations convention on the law of the sea (UNCLOS)

Procedia PDF Downloads 142