The role of the English courts in alternative dispute resolution

Legal Studies ◽  
2018 ◽  
Vol 38 (4) ◽  
pp. 666-683 ◽  
Author(s):  
AKC Koo
Keyword(s):  
Case Management ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
Court System ◽  
The Rule Of Law ◽  
Legal Administration ◽  
Alternative Processes ◽  
The Relationship

AbstractThe purpose of this article is to examine the interaction between the court and alternative dispute resolution (ADR) in the legal administration of civil justice. It addresses the following questions. What is the relationship between ADR and the concept of justice? How do we make sense of the anti-ADR views, in particular the serious threat to the rule of law? What role does, and should, the court play in alternative processes? It argues that integrating ADR into the court system broadens the notion of justice and its access, and that, under the rule of law, judges should play a more central role to ensure the use, quality and integrity of alternative processes. This paper extends our understanding of the relationship among justice, ADR and the court from an internal perspective. It also points out the need to expand the case management responsibilities of judges, and their delegates in the Online Court, on ADR.

scholarly journals Religious Diversity in the Workplace: The Case for Alternative Dispute Resolution

2019 ◽  
Vol 68 (1) ◽  
pp. 207-223
Author(s):  
Élise Rouméas
Keyword(s):  
Dispute Resolution ◽  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
Focal Point ◽  
Religious Diversity ◽  
Public Life ◽  
The Rule Of Law ◽  
Dispute Processing ◽  
The Relationship ◽  
Diversity In The Workplace

The workplace is a focal point for debates about religion and public life. This article examines the question of religion at work, and how to fairly resolve the conflicts it generates. Specifically, it advocates for the use of alternative dispute resolution to address these conflicts. Alternative dispute resolution refers to a set of dispute processing methods, mainly arbitration and mediation. Unlike litigation, these procedures rely on the consent and cooperation of the parties involved. I argue that alternative dispute resolution is best conceived of as a desirable complement to the rule of law rather than a cheaper alternative. It conveys a distinctive approach to procedural fairness, which is attentive to individual circumstances, and it frames the relationship between disputants in a cooperative way. Alternative dispute resolution is thus a valuable tool for the accommodation of religious diversity in the professional world.

scholarly journals CORRUPTION, CAPITAL ABUNDANCE AND ECONOMIC DEVELOPMENT: EVIDENCE FROM THE EUROPEAN UNION COUNTRIES

2016 ◽  
Vol 10 (2) ◽  
Author(s):  
Vlatka Bilas ◽  
Mile Bošnjak ◽  
Sanja Franc
Keyword(s):  
European Union ◽  
Economic Development ◽  
Law Enforcement ◽  
Rule Of Law ◽  
Explanatory Power ◽  
The European Union ◽  
The Rule Of Law ◽  
European Union Countries ◽  
The Relationship

The aim of this paper is to establish and clarify the relationship between corruption level and development among European Union countries. Out of the estimated model in this paper one can conclude that the level of corruption can explain capital abundance differences among European Union countries. Also, explanatory power of corruption is higher in explaining economic development than in explaining capital abundance, meaning stronger relationship between corruption level and economic development than between corruption level and capital abundance. There is no doubt that reducing corruption would be beneficial for all countries. Since corruption is a wrongdoing, the rule of law enforcement is of utmost importance. However, root causes of corruption, namely the institutional and social environment: recruiting civil servants on a merit basis, salaries in public sector competitive to the ones in private sector, the role of international institutions in the fight against corruption, and some other corruption characteristics are very important to analyze in order to find effective ways to fight corruption. Further research should go into this direction.

scholarly journals A European convergence towards a stare decisis model?

2015 ◽  
pp. 173 ◽  
Author(s):  
Stefano Civitarese
Keyword(s):  
Rule Of Law ◽  
Deep Understanding ◽  
The European Union ◽  
Stare Decisis ◽  
The Rule Of Law ◽  
Law System ◽  
Legal Space ◽  
The One ◽  
The Relationship

The article revolves around the doctrine of precedent within the so-called European legal space, wondering whether and to what extent we can speak of a convergence towards a stare decisis model boosted by the harmonizing role of the Court of Justice of the European Union. The article argues that although there are still some differences between civil law and common law legal systems they regard more the style of reasoning and the deep understanding of the relationship between the present decision of a court and past judicial decisions than the very existence of the constraints of the latter upon the former. The article concludes that a sort of mechanism of stare decisis has in fact been created, even though, on the one hand, uncertainty remains as to the way in which the binding force of a precedent concretely operates in the system, and on the other hand, this mechanism relates exclusively to the relationships between past and future decisions of higher courts (horizontal effect). This change, far from being a shift towards a truly judge-made law system or a consequence of the final abandonment of the dictates of the rule of law, enhances legal certainty contributing to the fundamental requirement of stability of law as a feature of the ideal of the rule of law.

Weaving a Tangled Web:Hapeand the Obfuscation of Canadian Reception Law

2008 ◽  
Vol 45 ◽  
pp. 55-96 ◽  
Author(s):  
John H. Currie
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Potential Role ◽  
Supreme Court Of Canada ◽  
Customary International Law ◽  
The Rule Of Law ◽  
Legal Obligations ◽  
Canadian Law ◽  
The Relationship

SummaryThe majority Supreme Court of Canada judgment inHape— a case concerning extraterritorial applicability of theCanadian Charter of Rights and Freedoms— is premised on three aspects of the relationship between international and Canadian law: (1) the interaction of customary international law and Canadian common law; (2) the role of Canada’s international legal obligations inCharterinterpretation; and (3) the potential role of customary international law as a source of unwritten principles of the Canadian Constitution. This article reviews pre-existing law in all three of these areas and analyzes a number of innovations apparently introduced thereto, with little or no explanation, by the majority inHape. It concludes thatHapeseriously exacerbates an already uncertain relationship between international and Canadian law, with fundamental consequences for the rule of law in Canada.

‘Belief’ in the Rule of Law and the Hindu Nation and the Rule of Law

2019 ◽  
pp. 353-372 ◽  
Author(s):  
Ratna Kapur
Keyword(s):  
Gender Equality ◽  
Rule Of Law ◽  
Religious Freedom ◽  
The Rule Of Law ◽  
Indian Nation ◽  
Indian State ◽  
And Gender ◽  
Role Of Religion ◽  
The Relationship

Ratna Kapur illustrates how the Indian judiciary, through mobilizing a politics of ‘belief,’ has endorsed the identity of the Indian state as a Hindu nation through the discourse of rights and has underscored such practice through the constructed opposition between Islam and gender equality in the advocacy of the Hindu Right. The article analyses the role of religion in the constitutional discourse of secularism in India and how this has been used as a technique to establish and reinforce Hindu majoritarianism. The article focuses on the relationship between secularism, equality, and religion in law, which is pivotal to the Hindu Right’s project of constructing the Indian Nation as Hindu. Kapur notes that the judiciary has played a central role in legitimizing the Hindutva project, and that this project has gained traction in the legal arena to reshape the meaning of equality, gender equality, and religious freedom.

scholarly journals PENYELESAIAN SENGKETA PENGADAAN TANAH GUNA PEMBANGUNAN BANDAR UDARA INTERNASIONAL BERBASIS NILAI KEADILAN SOSIAL

NOTARIUS ◽  
2019 ◽  
Vol 12 (1) ◽  
pp. 83
Author(s):  
Mia Permata Sari ◽  
Suteki Suteki
Keyword(s):  
Social Justice ◽  
Dispute Resolution ◽  
Rule Of Law ◽  
Public Interest ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Land Acquisition ◽  
The Rule Of Law ◽  
The Public ◽  
Land Dispute

In resolving land acquisition disputes for the public interest, it is fitting for the state to pay attention to values outside of the rule of law itself, including the value of social justice and the value of benefits to guarantee the basic rights of affected communities. This study aims to find out what factors cause the settlement of land acquisition disputes in terms of juridical aspects not reflecting the value of justice and benefit for the parties and formulating land acquisition dispute resolution models in a legal socio perspective that can realize the value of social justice and benefits for party. an appropriate method is needed that can accommodate the value of social justice and the benefits in resolving the dispute, among others, promoting the Consensus Meeting and the Need for Alternative Dispute Resolution (ADR) as an alternative solution. In addition, the need to calculate non-physical losses in the assessment of compensation for people who have lost their livelihoods due to land acquisition projects Keywords: Land Acquisition, Land Dispute Settlement, Public Interest AbstrakDalam penyelesaian sengketa pengadaan tanah untuk kepentingan umum sudah sepatutnya negara memperhatikan nilai-nilai diluar daripada aturan hukum itu sendiri, diantaranya nilai keadilan sosial dan nilai kemanfaatan untuk menjamin hak-hak dasar masyarakat terdampak. Penelitian ini bertujuan untuk  untuk mengetahui faktor apa saja yang menyebabkan penyelesaian sengketa pengadaan tanah tersebut ditinjau dari aspek yuridis belum mencerminkan nilai keadilan dan kemanfaatan bagi para pihak sertaa merumuskan model penyelesaian sengketa pengadaan tanah dalam perspektif socio legal yang dapat mewujudkan nilai keadilan sosial dan kemanfaatan bagi para pihak. dibutuhkan suatu metode yang tepat yang dapat mengakomodasi nilai keadilan sosial dan kemanfaatan dalam penyelesaian sengketa tersebut diantaranya mengedepankan Musyawarah Mufakat dan Perlunya Alternative Dispute Resolution (ADR) sebagai solusi alternatif.. Selain itu, perlunya memperhitungkan kerugian non fisik dalam penilaian ganti rugi sehingga, terdapat solusi bagi masyarakat yang kehilangan mata pencaharianya akibat proyek pengadaan tanah Kata Kunci : Pengadaan Tanah, Penyelesaian Sengketa Tanah , Kepentingan Umum 

The Problem with Normality: Taking Exception to “Permanent Emergency”

2006 ◽  
Vol 31 (2) ◽  
pp. 191-213 ◽  
Author(s):  
Mark Neocleous
Keyword(s):  
Twentieth Century ◽  
Rule Of Law ◽  
War On Terror ◽  
September 11 ◽  
The Rule Of Law ◽  
Emergency Powers ◽  
Historical Developments ◽  
The Relationship ◽  
Emergency Measures

This article challenges the increasingly prevalent idea that since September 11, 2001, we have moved into a state of permanent emergency and an abandonment of the rule of law. The article questions this idea, showing that historical developments in the twentieth century have actually placed emergency powers at the heart of the rule of law as a means of administering capitalist modernity. This suggests we need to rethink our understanding of the role of emergency measures in the “war on terror” and, more generally, to reconsider the relationship between the rule of law and violence.

Contrasting Emission Trading in the eu and China: An Exploration of the Role of the Courts

Climate Law ◽  
2016 ◽  
Vol 6 (1-2) ◽  
pp. 197-226 ◽  
Author(s):  
Marjan Peeters ◽  
Huizhen Chen ◽  
Zhiping Li
Keyword(s):  
Rule Of Law ◽  
Large Body ◽  
Emission Trading ◽  
Emission Trading Scheme ◽  
Court System ◽  
Governance System ◽  
The Rule Of Law ◽  
The Government ◽  
Trading Scheme

China and the eu have both engaged in formulating climate laws in order to contribute to a global reduction of greenhouse gas emissions. The focus of both is on emission trading. This instrument is designed and implemented according to very different political and legal systems in China and the eu. The rule of law in the eu is understood to mean that access to the judicial system for those affected by the emission-trading scheme is crucial. This can be illustrated by the emergence of a large body of case law on the issue. China, by contrast, is still in the process of building a governance system based on the rule of law, and thereby faces the challenge of setting up a court system that will act independently of a powerful government. While in the eu industries may launch a legal action in order to acquire a more profitable position on the allocation of emission allowances, in China it is still an open question whether industries covered by the emission-trading scheme will be permitted to take their case to court. How does this difference affect the functioning of the instrument in the two jurisdictions? In the eu, so far, the environmental effectiveness of the emission-trading scheme does not appear to have been negatively impacted by court proceedings initiated by industry. While the powerful role of the government in environmental protection in China could be valuable for the achievement of environmental aims, weak judicial control of governmental action could mean either a strict implementation of emission reductions or a lenient approach that tolerates a flexible, less ambitious, implementation.

Palestinian Ṣulḥa and the Rule of Law

2013 ◽  
Vol 27 (2) ◽  
pp. 151-170
Author(s):  
Brian A. Kritz
Keyword(s):  
Dispute Resolution ◽  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
The Rule Of Law ◽  
Legal Assessment ◽  
Resolution Process ◽  
Dispute Resolution Process ◽  
International Rule

Abstract Palestine’s alternative dispute resolution process, the ṣulḥa system, is utilized in the vast majority of civil and criminal disputes. Despite the popularity of the ṣulḥa process, there exists, to date, no international legal assessment of such proceedings. This article assesses Palestinian ṣulḥa’s adherence to international rule of law standards. Using rule of law theory to assess the fairness, equity, and accessibility of the ṣulḥa system, this article determines that Palestinian ṣulḥa proceedings satisfy the major requirements of international rule of law standards.

scholarly journals RATIO LEGIS PRZEDAWNIENIA

2017 ◽  
Vol 6 (2) ◽  
pp. 137
Author(s):  
Tomasz Pałdyna
Keyword(s):  
Interest Rates ◽  
Rule Of Law ◽  
Common Sense ◽  
Civil Law ◽  
Common Element ◽  
Court System ◽  
The Rule Of Law ◽  
High Interest ◽  
Almost All

Ratio legis of Limitation of ClaimsSummaryA common element of the works on limitation of material claims is the analysis of its justification. This has its reasons: limitation of claims evokes serious doubts of ethical nature. It often happens that the protection is rejected to an entitled person, even in a situation when the debtor confirms his obligation, claiming at the same time the lapse of the period of prescription. Due to this, objections are formulated that limitation of claims authorises immoral behaviours, undermines the validity of law, weakens the role of law in a society, infringes the rule of law as well that it collides with a common sense of justness and the logic of the protection of exclusive rights. Notwithstanding the above limitation of claims exists in almost all civil law systems, therefore, it seems to be justifiable. The reasons for introducing this legal means into the system of civil law are discussed in this paper.The aim of limitation of claims is the protection of the defendant in the proceedings because of the difficulties with presenting evidence for a claim which came into being many years before. Retaining such claims is contrary to the interests of the court system because the proceedings initiated after many years could lead to accidental verdicts. Moreover maintaining a certain status may create its legality due to the principle of security of law. Furthermore, delayed persuing claims may be a form of earning money out of the statute interest with high interest rates, which is not desirable.The analysis presented in this paper allows a conclusion that limitation of claims has mammy functions: protective, cleansing, stabilising and animating. The proposed division is of an arranging nature as it stresses the main functions of limitation of claims and its role in trade.

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