Alternative dispute resolution, Africa, and the structure of law and power: the Horn in context

1999 ◽  
Vol 43 (1) ◽  
pp. 63-70 ◽  
Author(s):  
Elisabetta Grande
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Political Leadership ◽  
Complex Societies ◽  
Horn Of Africa ◽  
Legal Transplant ◽  
The Past ◽  
The One ◽  
Dispute Resolution Mechanism

Data collected by comparative legal scholars show that legal transplants usually take place from more complex societies to less complex ones. By contrast, the alternative dispute resolution (ADR) movement that has recently developed in modern societies has been described as a return to a simple model of dispute settlement used in the past and in modern non-Western societies. Does this mean that we are experiencing a new kind of legal transplant, a transplant from less complex to more complex societies? In this article I will argue that this is not the case. Far from being a transplant from the southern to the northern hemisphere, ADR seems indeed to be a modern legal institution born from the retreat of the state from some of its traditional functions. A different question thus needs exploring: is ADR, at least, an institution that can easily be transplanted to Africa where the original transplant of the Western state has failed? In other words, is conciliatory ADR more similar to the African way of dealing with conflicts and consequently to be recommended as the dispute resolution mechanism for modern African states? The question appears to be appropriate in situations such as the one in the Horn of Africa—particularly Eritrea—where the new political leadership is confronting the difficult task of building a new legal system.

Part IV Procedural and Institutional Aspects, Ch.30 Alternative Dispute Settlement Mechanisms

2020 ◽  
Author(s):  
Chechi Alessandro
Keyword(s):  
Cultural Heritage ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
The Public ◽  
The Past ◽  
Institutional Aspects ◽  
Alternative Dispute Settlement ◽  
Dispute Settlement Mechanisms

This chapter examines existing ‘Alternative Dispute Resolution’ (ADR) options—such as negotiation, mediation, conciliation, and arbitration—with a view to assessing their efficacy in relation to cultural heritage disputes. Indeed, even a cursory consideration of the practice reveals that the vast majority of restitution claims arising in the past few decades have been settled through such means. Admittedly, this is due to the fact that ADR procedures combine important virtues. The first advantage of ADR resides in the parties’ power to tailor the settlement process according to their interests and the circumstances of the dispute. Second, private settlement is likely to be speedier and cheaper. Third, these mechanisms provide for flexibility and creativity. Fourth, since disputes are resolved out of the public eye, extra-curial resolution ensures confidentiality. Lastly, ADR entails neutrality and fairness.

scholarly journals Kewenangan Badan Penyelesaian Sengketa Konsumen (BPSK) dalam Menyelesaikan Sengketa Asuransi Pasca Keluarnya Peraturan Otoritas Jasa Keuangan (OJK) Nomor 1/POJK.07/2014

2019 ◽  
Vol 12 (2) ◽  
pp. 102
Author(s):  
Wisnu Kumala ◽  
Yaswirman Yaswirman ◽  
Ulfanora Ulfanora
Keyword(s):  
Dispute Resolution ◽  
Consumer Protection ◽  
Financial Services ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Legal Research ◽  
Research Results ◽  
Consumer Protection Act ◽  
Legal Effect ◽  
Legal Consequences

There is a tug of authority in resolving insurance disputes outside the court between the Consumer Dispute Settlement Agency (BPSK) based on Law Nomor 8 of 1999 concerning Consumer Protection with Alternative Dispute Resolution Institutions (LAPS) based on Financial Services Authority Regulation Number 1/POJK.07/2014. This encourages the author to conduct legal research in order to determine the authority of BPSK in resolving insurance disputes as well as the legal consequences of the decision after the issuance of the Financial Services Authority Regulation Number 1/POJK.07/2014 using the statutory approach. This legal research results in the finding that BPSK is still authorized to settle insurance disputes following the issuance of the Financial Services Authority Regulation Number 1/POJK.07/2014, this is based on the provisions of the Lex superior derogat legi inferiori principle. Then there is no legal effect on the BPSK decision after the issuance of the Financial Services Authority Regulation. This is because BPSK's decision has been based on Law Number 8 of 1999 concerning Consumer Protection, whose position is higher than the Regulation of the Financial Services Authority. So there is no need for BPSK to follow the provisions of the regulations whose hierarchy of legislation is lower than the Consumer Protection Act. Therefore BPSK's decision is "final and binding" as explained in Article 54 paragraph 3 of the Consumer Protection Act.

scholarly journals International Legal and Economic Aspects of Dispute Resolution within the WTO in the Context of International Integration

2021 ◽  
Vol 14 (2) ◽  
pp. 64-71
Author(s):  
V. P. Kirilenko ◽  
Yu. V. Mishalchenko ◽  
A. N. Shchepova
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
The European Union ◽  
Advantages And Disadvantages ◽  
Legal Remedies ◽  
The World ◽  
System Functioning ◽  
Dispute Settlement System ◽  
Dispute Resolution Mechanism ◽  
Settlement Of Disputes

The article discusses issues related to the settlement of disputes within the framework of the World Trade Organization, as well as assesses the advantages and disadvantages of this system. The specific problems of the dispute settlement system functioning today are considered, and options for optimizing the dispute resolution mechanism and various ways to improve the effectiveness of legal remedies in cases of non-compliance with decisions are proposed. Special attention is paid to the latest topical disputes involving the Russian Federation, the European Union, Ukraine, China and USA resolved within the framework of the World Tr ade Organization, as well as to the crisis faced by the organization due to the absence of a permanent appeals body.

scholarly journals СУТНІСТЬ ТА ОСОБЛИВОСТІ ДОСУДОВОГО ВРЕГУЛЮВАННЯ АДМІНІСТРАТИВНО-ПРАВОВИХ СПОРІВ

2019 ◽  
Vol 14 ◽  
pp. 5-18
Author(s):  
C. В. Ківалов
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
The Relationship

У статті проаналізовано поняття, сутність та особливості досудового урегулювання адміністративно-правових спорів. Особливу увагу приділено співвідношенню понять «спо­соби, альтернативні правосуддю» й «альтернативне вирішення спорів». Здійснено поділ до­судових способів за такими критеріями: 1) за суб'єктом, що здійснює процедуру вирішення спору: а) державні процедури врегулювання спору; б) недержавні процедури врегулювання спору; 2) за методом врегулювання спору: а) примирювальні (компромісні) процедури; б) правовїдновлювальні процедури; в) змішані процедури. Визначено, що найбільш поши­реними методами досудового вирішення спорів с переговори, посередництво, арбітраж.   The paper analyzes the concept, essence, and characteristics of pre-trial settlement of administrative legal disputes. Particular attention is paid to the relationship between the concepts "methods alternative to justice" and "alternative dispute resolution". The author carries out the classification of pre-trial methods according to the following criteria: 1) by the entity that carries out the procedure for dispute settlement: a) state dispute settlement procedures; b) non-state dispute settlement procedures; 2) by the method of settlement of the dispute: a) conciliation (compromise) procedures; b) procedures for restoration of rights; c) mixed procedures. It is determined that the most common methods of pre-trial dispute resolution are: negotiation, mediation, arbitration.

Assessing the efficacy of forum selection agreements in Commonwealth Africa

2020 ◽  
Vol 7 (2) ◽  
pp. 1-40
Author(s):  
Theophilus Edwin Coleman
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Arbitral Tribunal ◽  
African Countries ◽  
The Subject ◽  
Dispute Resolution Mechanism ◽  
Domestic Support ◽  
Commercial Disputes

Any international commercial agreement has the potential to be the subject of a dispute. In resolving international commercial disputes, parties to a contract are at liberty to choose any dispute resolution mechanism that best serves and meets their commercial interests. Generally, parties to an international commercial contract may resort to courtroom litigation or choose an alternative dispute resolution (ADR) mechanism as a method of resolving their transnational disputes. Underlying almost every international commercial contract, therefore, is a very primary question about where, by whom and how the parties prefer their disputes to be litigated. The response to this question depends on whether parties prefer traditional courtroom litigation, or an ADR mechanism. In most instances, countries put in place dispute resolution regimes that seek to afford contracting parties the liberty to submit their disputes to a foreign forum or an arbitral tribunal for legal redress and/or a remedy. However, while the efficacy of resolving international disputes through arbitration has garnered immense international and domestic support, the submission of disputes by parties to a foreign forum through a forum selection agreement is regarded with much ambivalence in most countries. This article assesses the efficacy of forum selection agreements in Commonwealth Africa. It appraises the judicial approach of courts in Commonwealth African countries relative to the essence and effect of forum selection agreements. This article argues and calls for a higher degree of judicial commitment to the juridical choices of private individuals who are party to an international commercial contract, especially with regard to forum selection agreements.

Competing constraints in alternative dispute resolution

1996 ◽  
Vol 19 (2) ◽  
pp. 79-114 ◽  
Author(s):  
Calvin D. Smith
Keyword(s):  
Dispute Resolution ◽  
Rapid Growth ◽  
Alternative Dispute Resolution ◽  
Preliminary Analysis ◽  
The Other ◽  
Mediation Process ◽  
Other Hand ◽  
Community Justice ◽  
Justice Program ◽  
The One

Despite rapid growth in the provision of alternative dispute resolution services by governments, little sociological attention has been paid to the emerging form these services take. In this paper I offer a preliminary analysis of mediations conducted by the Community Justice Program in Queensland. I focus on the interactional management of two competing constraints on the talk. On the one hand mediation services must provide an accountably standardised and recognisable process. This creates the need for formalisation of the mediation process. On the other hand, because of philosophical commitments to disputant control over the dispute and its outcome, Community Justice Program mediations must be conducted in such a way as to display this commitment to disputant control and authority in the proceedings. This creates a conflicting need for displays of informality. This paper focuses on some strategies which appear to be designed to achieve this mix of formality and informality in Community Justice Program mediations.

From alternative dispute resolution to pluralist dispute resolution: towards an integrated dispute-resolution mechanism in China

2020 ◽  
Vol 16 (2) ◽  
pp. 165-180
Author(s):  
Zhiqiong June Wang ◽  
Jianfu Chen
Keyword(s):  
Social Control ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Careful Examination ◽  
National Strategy ◽  
Resolution System ◽  
Future Direction ◽  
Dispute Resolution Mechanism ◽  
Dispute Resolution System

AbstractSince 1978, we have observed the steady development of institutions, mechanisms and processes of dispute resolution in China. In the last ten years or so, we then noted frequent issuance of new rules and measures as well as revision of existing laws, the promotion of mediation as the preferred method for resolving disputes and, more recently, the promotion of an integrated dispute-resolution system as a national strategy for comprehensive social control (as well as for resolving disputes), in the name of reforming and strengthening ‘the Mechanism for Pluralist Dispute Resolution’. Careful examination of these latest developments suggests that fundamental changes are taking place that may potentially alter the course of the development of the Chinese dispute-resolution system. These developments are the focus of this paper with an aim to ascertain the nature of the developments and their future direction or directions.

The International Rule of Law in Latin American Investment Arbitration: UNASUR’s Advances in Arbitrator Appointment and Disqualification

2016 ◽  
Vol 17 (4) ◽  
pp. 681-699 ◽  
Author(s):  
José Manuel Álvarez Zárate ◽  
Rebecca Pendleton
Keyword(s):  
Dispute Resolution ◽  
Latin American ◽  
Rule Of Law ◽  
Alternative Dispute Resolution ◽  
South American ◽  
Investment Arbitration ◽  
The Creation ◽  
Democratic Principles ◽  
Dispute Resolution Mechanism ◽  
International Rule

In 2008, Ecuador raised the need for the creation of an alternative dispute resolution mechanism within the Union of South American Nations (UNASUR). Any system of investment arbitration should comply with democratic principles and the international rule of law which provide predictability, transparency and legitimacy for arbitral decisions and thus should avoid political and economic bias. This article shows Latin America’s historical inclination towards arbitration and focuses on the 2014 UNASUR Project’s proposed method of appointment and disqualification of arbitrators, and its approach to the execution of awards. By way of comparison with International Centre for Settlement of Investment Disputes (ICSID) tribunals, the article goes on to suggest how an application of the international rule of law could help guide and structure arbitrators’ behaviours in the proposed UNASUR Project as well as under the current ICSID framework to avoid arbitrators’ deviation from the law and prevent their creative, independent interpretations.

Teetering at the Top of the Ladder: The Experience of Citizen Group Participants in Alternative Dispute Resolution Processes

1996 ◽  
Vol 39 (2) ◽  
pp. 249-262 ◽  
Author(s):  
Julia M. Wondolleck ◽  
Nancy J. Manring ◽  
James E. Crowfoot
Keyword(s):  
Dispute Resolution ◽  
Citizen Participation ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Working Relationships ◽  
Citizen Groups ◽  
Citizen Group ◽  
Critical Components ◽  
Resolution Processes ◽  
Do So

Citizen groups that participate in alternative dispute resolution processes have overcome many of the barriers described in Sherry Arnstein's classic article, “A Ladder of Citizen Participation.” A well-structured collaborative process can remedy some of the imbalances and other stumbling blocks inherent in traditional forums, broadening the issues considered as well as the potential solutions. At the top of the ladder, there exists a three-runged extension of choices. First citizens must make the strategic choice whether or not to participate in the dispute resolution process. Second, if they choose to participate, citizens must then determine how to do so effectively. Citizen representatives can significantly influence the outcome of a negotiation if they pay attention to the critical components comprising the dispute settlement process and ensure that these are satisfactory at the outset. They must also maintain effective communication with their constituencies. At the third rung, citizen groups confront the need for continued involvement, both to ensure implementation of any agreements reached, as well as to capitalize on the productive working relationships and opportunities for further influence provided by their participation in this process.

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