Search results for: litigations

Authors: Salamah Ansari

Abstract:

In absence of a comprehensive international legal regime for sovereign debt restructuring, majority of the complications arising from sovereign debt restructuring are frequently left to the uncertain market forces. The resort to market forces for sovereign debt restructuring has led to a phenomenal increase in litigations targeting assets of defaulting sovereign nations, internationally across jurisdictions with the first major wave of lawsuits against sovereigns in the 1980s with the Latin American crisis. Recent experiences substantiate that majority of obstacles faced during sovereign debt restructuring process are caused by inefficient creditor coordination and collective action problems. Collective action problems manifest as grab race, rush to exits, holdouts, the free rider problem and the rush to the courthouse. On defaulting, for a nation to successfully restructure its debt, all the creditors involved must accept some reduction in the value of their claims. As a single holdout creditor has the potential to undermine the restructuring process, hold-out creditors are snowballing with the increasing probability of earning high returns through litigations. This necessitates a mechanism to avoid holdout litigations and reinforce collective action on the part of the creditor. This can be done either through a statutory reform or through market-based contractual approach. In absence of an international sovereign bankruptcy regime, the impetus is mostly on inclusion of collective action clauses in debt contracts. The preference to contractual mechanisms vis- a vis a statutory approach can be explained with numerous reasons, but that's only part of the puzzle in trying to understand the economics of the underlying system. The contractual approach proposals advocate the inclusion of certain clauses in the debt contract for an orderly debt restructuring. These include clauses such as majority voting clauses, sharing clauses, non- acceleration clauses, initiation clauses, aggregation clauses, temporary stay on litigation clauses, priority financing clauses, and complete revelation of relevant information. However, voluntary market based contractual approach to debt workouts has its own complexities. It is a herculean task to enshrine clauses in debt contracts that are detailed enough to create an orderly debt restructuring mechanism while remaining attractive enough for creditors. Introduction of collective action clauses into debt contracts can reduce the barriers in efficient debt restructuring and also have the potential to improve the terms on which sovereigns are able to borrow. However, it should be borne in mind that such clauses are not a panacea to the huge institutional inadequacy that persists and may lead to worse restructuring outcomes.

Keywords: sovereign debt restructuring, collective action clauses, hold out creditors, litigations

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Authors: Renan Caseiro De Almeida, Mateus Mello Garrute

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The world walks to be ever more globalised. This trend promotes an increase on the number of transnational commercial transactions. The main modal for carriage of goods is by sea, and many countries have their economies dependent on the maritime freightage – it could be because they exercise largely this activity or because they follow the tendency of using the maritime logistic widely. Among these ones, Brazil is included. This nation counts with sixteen ports with good capacities, which receive most of the international income by sea. It is estimated that 85 per cent of the total influx of goods in Brazil is by maritime modal, leaving mere 15 per cent for the other ones. This made it necessary to develop maritime law in international and national basis, to create a standard to be applied with the intention to harmonize the transnational carriage of goods by sea. Maritime contracts are very specific and have interesting peculiarities, but in their range, little research has been made on what causes the main divergences when it comes to international contracts: the jurisdiction conflict. Likewise any other international contract, it is common for the parties to set a forum selection clause to choose the forum which will be able to judge the litigations that could rise from a maritime transport contract and, consequently, also which law should be applied to the cases. However, the forum choice in Brazil has always been somewhat polemical – not only in the maritime law sphere - for sometimes national tribunals overlook the parties’ choice and call the competence for themselves. In this sense, it is interesting to mention that the Mexico Convention of 1994 about the law applicable to international contracts did not gain strength in Brazil, nor even reached the Congress to be considered for ratification. Furthermore, it is also noteworthy that Brazil has a new Civil Procedure Code, which was put into reinforcement in 2016 bringing new legal provisions specifically about the forum selection. This represented a mark in the national legal system in this matter. Therefore, this paper intends to give an insight through Brazilian jurisprudence, making an analysis of how this issue has been treated on litigations about maritime contracts in the national tribunals, as well as the solutions found by the Brazilian legal system for the jurisdiction conflicts in those cases. To achieve the expected results, the hypothetical-deductive method will be used in combination with researches on doctrine and legislations. Also, jurisprudential research and case law study will have a special role, since the main point of this paper is to verify and study the position of the courts in Brazil in a specific matter. As a country of civil law, the Brazilian judges and tribunals are very attached to the rules displayed on codes. However, the jurisprudential understanding has been changing during the years and with the advent of the new rules about the applicable law and forum selection clause, it is noticeable that new winds are being blown.

Keywords: applicable law, forum selection clause, international business, international maritime contracts, litigation in courts

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Authors: V. Durmus, M. Uydaci

Abstract:

In order to prevent overburdened courts, rising costs of litigation, and lengthy trial resolutions, the Law on Mediation for Civil Disputes was enacted, which was aimed at defining the procedure and guiding principles for dispute resolutions under Civil Law, in 2012. This “Mediation Code” also applies for civil healthcare disputes in Turkey. Aside from mediation, reconciliation, governed by Articles 253-255 of Criminal Procedure Law, has emerged as an alternative way to resolve criminal medical disputes, but the difference between mediation and conciliation is mostly procedural. This article deals with mediation in Turkish health law and aspect of medical malpractice mediation in Turkey. In addition, this study examines the issue of mediation in health law from both a legal and normative point of view, including codes of mediation which regulate both the structural and professional practice of mediation providers. As a result, although there is not official record about success rate of medical malpractice litigations and malpractice mediation in Turkey, it is widely accepted that the success rate for medical malpractice cases is relatively low compared to other personal injury cases even if it is generally considered that medical malpractice case filings have gradually increased recently. According to the Justice Ministry’s Department of Mediation in Turkey, 719 civil disputes have referred to mediators since 2013 (when the first mediation law came into force) with a 98% success rate.

Keywords: malpractice mediation, medical disputes, reconciliation, health litigation, Turkish health law

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Authors: C. M. Cebola, V. H. Ferreira

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In the past decade mediation has been legally implemented in European legal systems, especially after the publication by the European Union of the Directive 2008/52/EC on certain aspects of mediation in civil and mercantile matters. Developments in international trade and globalization in this new century have led to an increase of the number of litigations, often cross-border, and the courts have failed to respond adequately. We do not advocate that mediation should be promoted as the solution for all justice problems, but as a means with its own specificities that the parties may choose to consider as the best way to resolve their disputes. Thus, the implementation of mediation should be based on the advantages of its application. From the economic point of view, competitive negotiation can generate negative external effects in social terms. A solution reached in a court of law is not always the most efficient one considering all elements of society (economic social benefit). On the other hand, the administration of justice adds in economic terms transaction costs that can be mitigated by the application of other forms of conflict resolution, such as mediation. In this paper, the economic benefits of mediation will be analysed in the light of various studies on the functioning of justice. Several theoretical arguments will be confronted with empirical studies to demonstrate that mediation has significant positive economic effects. The objective is to contribute to the dissemination of mediation between companies and citizens, but also to demonstrate the cost to governments and states of still limited use of mediation, particularly in the current economic crisis and propose actions to develop the application of mediation.

Keywords: economic impact, litigation costs, mediation, solutions

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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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Authors: M. L. Mesquita, V. H. Ferreira, C. M. Cebola

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Mediation is an increasingly important mechanism, particularly in the European context, as demonstrated, for example, by the publication by the European Union of the Directive 2008/52/EC on certain aspects of mediation in civil and mercantile matters. Developments in international trade and globalization in this new century have led to an increase of the number of litigations, often cross-border, and the courts have failed to respond adequately. From the economic point of view, competitive negotiation can generate negative external effects in social terms. Not always the solution found in court is the most efficient solution taking into account all elements of society. On the other hand, the administration of justice adds in economic terms transaction costs that can be mitigated by the application of other forms of conflict resolution, such as mediation. In this paper, the economic benefits of mediation will be analysed in the light of various studies on the functioning of justice. Several theoretical arguments will be confronted with empirical studies to demonstrate that mediation has significant positive economic effects. In the Portuguese legal system, legislative frameworks for mediation display a state committed to creating a new architecture for the administration of justice, based on the construction of a multi-faceted legal system for dispute resolution mechanisms. Understanding the way in which the system of mediation in Portugal was introduced, allows us to point out that our internal ordering is creating the legal instruments which can assist citizens in the effective protection of their rights. However, data on the use of mediation in concrete proceedings and the consequent effectiveness of mediation in settling disputes, reveal a mechanism that is still far from the ideal results that were initially sought.

Keywords: access to justice, alternative dispute resolution, mediation, litigation

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Authors: A. O. Oluwajobi, O. A. Falusi, N. A. Zubbair, T. Owoeye, F. Ladejobi, M. C. Dangana, A. Abubakar

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The technology of mobile telephony has positively enhanced human life and reports on the bio safety of the radiation from their antennae have been contradictory, leading to serious litigations and violent protests by residents in several parts of the world. The crave for more information, as requested by WHO in order to resolve this issue, formed the basis for this study on the effect of the radiation from 900 MHz GSM antenna on the DNA of Hibiscus sabdariffa. Seeds of H. sabdariffa were raised in pots placed in three replicates at 100, 200, 300 and 400 metres from the GSM antennae in three selected test locations and a control where there was no GSM signal. Temperature (˚C) and the relative humidity (%) of study sites were measured for the period of study (24 weeks). Fresh young leaves were harvested from each plant at two, eight and twenty-four weeks after sowing and the DNA extracts were subjected to RAPD-PCR analyses. There were no significant differences between the weather conditions (temperature and relative humidity) in all the study locations. However, significant differences were observed in the intensities of radiations between the control (less than 0.02 V/m) and the test (0.40-1.01 V/m) locations. Data obtained showed that DNA of samples exposed to rays from GSM antenna had various levels of distortions, estimated at 91.67%. Distortions occurred in 58.33% of the samples between 2-8 weeks of exposure while 33.33% of the samples were distorted between 8-24 weeks exposure. Approximately 8.33% of the samples did not show distortions in DNA while 33.33% of the samples had their DNA damaged twice, both at 8 and at 24 weeks of exposure. The study showed that radiation from the 900 MHz GSM antenna is potent enough to cause distortions to DNA of H. sabdariffa even within 2-8 weeks of exposure. DNA damage was also independent of the distance from the antenna. These observations would qualify emissions from GSM mast as environmental hazard to the existence of plant biodiversities and all life forms in general. These results will trigger efforts to prevent further erosion of plant genetic resources which have been threatening food security and also the risks posed to living organisms, thereby making our environment very safe for our existence while we still continue to enjoy the benefits of the GSM technology.

Keywords: damage, DNA, GSM antenna, radiation

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Authors: Manushi Srivastava

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Introduction: Doctor’s role, and relation with respect to patient care is at the core of medical ethics. The rapid pace of medical advances along with increasing consumer awareness about their rights and hike in cost of effective health care demand a robust, transparent and patient-friendly medical care system. However, doctors’ role performance is still in the frame of activity-passivity model of Doctor-Patient Relationship (DPR) where doctors act as parent and use to instruct their patients, without their consensus that is not going to help in the 21st century. Thus the current situation is a new challenge for traditional doctor-patient relationship after the introduction of Consumer Protection Act (CPA) in medical profession and the same is evidenced by increasing cases of medical litigation. To strengthen this system of medical services, the doctor plays a vital role, and the same should be reviewed in the present context. Objective: To understand the opinion of consultants regarding medical negligence and effect of Consumer Protection Act in terms of current practices of patient care. Method: This is a cross-sectional study in which both quantitative and qualitative methods are applied. Total 69 consultants were selected from multi-specialty hospitals of densely populated Varanasi city catering a population of about 1.8 million. Two-stage sampling was used for selection of respondents. At the first stage, selection of major wards (Medicine, Surgery, Ophthalmology, Gynaecology, Orthopaedics, and Paediatrics) was carried out, which are more susceptible to medical negligence. At the second stage, selection of consultants from the respective wards was carried out. In-depth Interviews were conducted with the help of semi-structured schedule. Two case studies of medical negligence were also carried out as part of the qualitative study. Analysis: Data were analyzed with the help of SPSS software (21.0 trial version). Semi-structured research tool was used to know consultant’s opinion about the pattern of medical negligence cases, litigations and claims made by patient community and inclusion of government medical services in CPA. Statistical analysis was done to describe data, and non-parametric test was used to observe the association between the variables. Analysis of Verbatim was used in case-study. Findings and Conclusion: Majority (92.8%) of consultants felt changes in the behaviour of community (patient) after implementation of CPA, as it had increased awareness about their rights. Less than half of the consultants opined that Medical Negligence is an Unintentional act of doctors and generally occurs due to communication gap and behavioural problem between doctor and patients. Experienced consultants ( > 10 years) pointed out that unethical practice by doctors and mal-intention of patient to harass doctors were additional reasons of Medical Negligence. In-depth interview revealed that now patients’ community expects more transparency and hence they demand cafeteria approach in diagnosis and management of cases. Thus as study results, we propose ‘Agreement Model’ of DPR to re-ensure ethical practice in medical profession.

Keywords: doctors, communication, consumer protection act (CPA), medical error

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Authors: Teresa Wanjiru Mbatia

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On 7th June 2011, the government Minister of Roads in Kenya announced the proposed construction of a major highway known as a southern bypass to run on the northern border of the Nairobi National Park. The following day on 8th June 2011, the chairperson of the Friends of Nairobi National Park (FONNAP) posted a protest statement on their website, with the heading, ‘Nairobi Park is Not a cake’ alerting its members and conservation groups, with the aim of getting support to the campaign against the government’s intention to hive off a section of the park for road construction. This was the first and earliest statement that led to a series of other events that culminated in conservationists and some other members of the public campaign against the government’s plan to hive off sections of the park to build road and railway infrastructure in or around the park. Together with other non-state actors, mostly non-governmental organisations in conservation/environment and tourism businesses, FoNNAP issued a series of other statements on social, print and electronic media to battle against road and railway construction. This paper examined the strategies, outcomes and interests of actors involved in opposing/proposing the development of transport infrastructure in and around the Nairobi National Park. Specifically, the objectives were to analyse the: (1) Arguments put forward by the eco-warriors to protest infrastructure development; (2) Background and interests of the eco-warriors; (3) Needs/interests and opinions of ordinary common citizens on transport infrastructural development, particularly in and around the urban nature reserve and (4) Final outcomes of the eco-politics surrounding infrastructure development in and around Nairobi National Park. The methodological approach used was environmental history and the social construction of nature. The study collected combined qualitative data using four main approaches, the grounded theory approach, narratives, case studies and a phenomenological approach. The information collected was analysed using critical discourse analysis. The major findings of the study were that under the guise of “public participation,” influential non-state actors have the capacity to perpetuate social-spatial inequalities in the form of curtailing the majority from accessing common public goods. A case in point in this study is how the efforts of powerful conservationists, environmentalists, and tourism businesspersons managed to stall the construction of much-needed road and railway infrastructure severally through litigations in lengthy environmental court processes involving injunctions and stop orders to the government bodies in charge. Moreover, powerful non-state actors were found to have formed informal and sometimes formal coalitions with politicians with selfish interests, which serves to deepen the exclusionary practices and the common good. The study concludes that mostly composed of certain types of elites (NGOs, business communities, politicians and privileged social-cultural groups), non-state actors have used participatory policies to advance their own interests at the expense of the majority whom they claim to represent. These practices are traced to the historically unjust social, political, and economic forces involved in the production of space in Nairobi.

Keywords: eco-politics, exclusion, infrastructure, Nairobi national park, non-state actors, protests

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