Part 2 Specific Issues of Arbitration in Brazil, 4 Settlement Agreements and the Role of the Arbitral Tribunal

2020 ◽  
Author(s):  
Coelho Eleonora ◽  
Leite Fabiana de Cerqueira
Keyword(s):  
Soft Law ◽  
Arbitral Tribunal ◽  
Legal Provisions ◽  
Settlement Agreement ◽  
Settlement Agreements

This chapter focuses on settlement agreements and the role of the arbitral tribunal. During the course of an arbitral proceeding, the parties may reach a settlement and, in this case, it is not the arbitrators who render a decision terminating the conflict, but the parties themselves resolve it. Although the parties have clear protagonism in creating a consensual solution, this does not mean that the arbitrators have no role in facilitating settlement. In fact, many national arbitration laws and soft law instruments interpret the arbitrators' mandate as to encompass some degree of involvement in settlement efforts — and Brazil is no exception. The Brazilian Arbitration Law (BAL) contains express provision in its article 21, requesting arbitrators to attempt to reconcile the parties. Also, arbitrators may render a consent award if the parties reach a settlement agreement. However, the wording of the legal provisions of the BAL does not clarify the extent of the arbitrators' role both in the attempt of conciliation of the parties and in the review of the settlement when to render an award by consent. The chapter then examines whether it is mandatory for arbitrators to attempt to reconcile the parties and whether there are limits to what settlement techniques can be applied by arbitrators. It also differentiates between a consent award and a termination order.

Arena Expansion and the Transnationalization of Business Advocacy

2018 ◽  
Author(s):  
Abraham L. Newman ◽  
Elliot Posner
Keyword(s):  
Internal Structure ◽  
International Finance ◽  
Financial Regulation ◽  
Banking Regulation ◽  
Great Powers ◽  
Soft Law ◽  
Financial Industry ◽  
Individual Industry ◽  
Industry Associations

Chapter 5 shifts the focus from soft law’s effects on great powers to its impact on influential business groups. It argues that by expanding arenas of contestation to the transnational level, soft law transforms business representation as well as individual industry associations. The chapter’s empirical focus is on banking regulation from the 1980s to the 2000s. Much of the literature on transnational banking standards centers on the role of industry associations and, in particular, on the Institute of International Finance. In this chapter, the authors explain the rise of direct industry participation in and influence over Basel-based standard setting. They show that the orientation and priorities of the IIF as well as its membership and internal structure were deeply conditioned by 1980s international soft law. The IIF’s transformation subsequently set off a series of changes to the ecology of financial industry associations and the politics of financial regulation.

scholarly journals Killing me Softly? Scrutinising the Role of Soft Law in Greece’s Response to COVID-19

2021 ◽  
Vol 12 (1) ◽  
pp. 59-76
Author(s):  
Evangelia (Lilian) TSOURDI ◽  
Niovi VAVOULA
Keyword(s):  
Asylum Seekers ◽  
Personal Data ◽  
Fundamental Rights ◽  
Soft Law ◽  
Freedom Of Movement ◽  
Hard Law ◽  
Primary Basis ◽  
Full Swing ◽  
Second Wave

Greece emerged as the EU’s poster child in the fight against COVID-19 during the first few months of the pandemic. In this contribution, we assess Greece’s use of soft regulation in its regulatory response to COVID-19. Using “acts of legislative content”, which can be broadly conceptualised as softly adopted hard law, the Greek government largely achieved flexibility and simplified adoption procedures without having to resort to soft law per se. The role of soft law was limited - it complemented hard law rather than constituting the primary basis of COVID-19 restrictions - but not completely negligible. Soft law instruments regulated the processing of personal data, and was also pivotal in clarifying the criminal sanctioning of COVID-related rule violations. Greece’s success in handling the first wave of the pandemic, while effective, was arguably unfair to asylum seekers who saw their right to apply for asylum curtailed, and their right to freedom of movement restricted when limitations on the rest of the population were lifted. With a second wave of infections currently in full swing, it is imperative to keep scrutinising regulatory responses to ensure that they place the health and dignity of every individual (whoever they might be) at their core and fully respect their fundamental rights.

Environmental Protection in Pancasila Perspective

2020 ◽  
Vol 1 (1) ◽  
pp. 7-10
Author(s):  
Lusia Indrastuti ◽  
Budi Prasetyo
Keyword(s):  
Law Enforcement ◽  
Environmental Protection ◽  
Environmental Law ◽  
Spiritual Needs ◽  
Way Of Life ◽  
Environmental Aspects ◽  
Legal Provisions ◽  
Library Research ◽  
Ongoing Development

Utilization of natural resources through environmental empowerment is an intention to improve public welfare through the Pancasila philosophy. The occurrence of floods that have occurred at this time both the Jabodetabek area and other regions illustrate the preservation of the environment not running well. For this reason, efforts and strategies need to be made to anticipate disasters that will occur in the future. In accordance with the foundation of the Pancasila state that has been engraved in the life of the nation and state of Indonesia, the role of the Pancasila for environmental protection needs to be put forward. This article aims to prevent the dominance of law enforcement in the field of environment but the role of the Pancasila perspective as a way of life and state ideology must be put forward. Pancasila is a guideline for maintaining and developing community welfare through a harmonious, balanced environment in order to improve the ongoing development at this time. This research uses a normative approach to library research, by conducting a study of the nation's life view of Pancasila and analyzing the applicable legal provisions, specifically in the field of environmental law. The results of this study are to put forward the Pancasila perspective approach in managing the environment in order to develop patterns of harmony, harmony and balance both in meeting physical and spiritual needs. The conclusion of this article is that environmental management has not been carried out in the perspective of the Pancasila perspective, so that the practice of Pancasila values has not been carried out consistently in developing environmental aspects.

On Arbitral Jurisdiction. How to Deal with the Complementarity between Arbitral Tribunals and the Courts?

Global Jurist ◽  
2018 ◽  
Vol 18 (2) ◽  
Author(s):  
Cesare Cavallini
Keyword(s):  
Arbitral Tribunal ◽  
The Core ◽  
Arbitration Process ◽  
Complementary Role ◽  
Domestic Legislation ◽  
Model Law ◽  
Core Issues ◽  
Considerable Body ◽  
Optimum Balance

Abstract Why might one argue that the arbitral tribunal should have the “competence” to rule, as of right, upon its own jurisdiction? Is this natural power consistent with the legitimacy of arbitration? Can it unquestionably achieve the greatest level of efficiency for the parties? Although a considerable body of literature has attempted to answer these questions, this article aims to address (and partially reframe) the core issues relating to arbitral jurisdiction by comparing different legal systems and operative solutions in order to search for new and valuable insights on the topic . There is no doubt, in fact, that the orthodox position traditionally starts from the assumption that access to the courts within parallel proceedings, which (also) questions the allocation of jurisdiction, is problematic also due to the risk of delaying tactics by one party. According to this line of reasoning, when the authority of the arbitrators is challenged, the balance between the legitimacy and the efficiency of the arbitration process could be conditioned by prejudices relating to the (necessary) interference of the courts with the power of the arbitral tribunal to determine its own potestas judicandi (or its lack thereof) on the merits. In an attempt to move on from the classical framing of this issue and towards a comparative evaluation of the rationales and values underlying domestic legislation on arbitral jurisdiction, considered also with reference to the provisions of the UNCITRAL Model Law, this article will seek to provide a solution that is rooted in the complementary role of the courts and of arbitral tribunals. The complementarity between arbitral tribunals and the courts will be shown to be key in securing the legitimacy of arbitration and the actual pre-eminence of this source of alternative private justice and, accordingly, also as a way of striking the optimum balance with the efficiency of the arbitration process.

EU Soft Law in Domestic Legal Systems: Flexibility and Diversity Guaranteed?

2009 ◽  
Vol 16 (3) ◽  
pp. 271-290 ◽  
Author(s):  
Emilia Korkea-Aho
Keyword(s):  
Holistic Approach ◽  
Soft Law ◽  
New Governance ◽  
Member States ◽  
Regulatory Instruments ◽  
Modes Of Governance ◽  
Judicial Recognition ◽  
The Eu ◽  
New Modes Of Governance

New modes of governance are proliferating at all levels, most prominently in the EU. One main characteristic of new governance is adjustability and revisability in the form of soft law. The non-binding nature of soft law is said to contribute to flexibility and diversity in Member States and to secure national autonomy. However, this article argues that while soft law may not be legally binding, it nevertheless has legal effects that throw flexibility and diversity of national action into doubt. Beginning by demonstrating that soft law may have discernible effects on practices in Member States, at the same time restricting Member State choices, the article goes on to develop a categorisation of those effects and to document them in detail. These are: judicial recognition by the European courts, explicit terms of soft law instruments, which demand special types of national implementing measures, the role played by non-state actors, and hybrid forms of regulatory instruments comprising soft and hard law provisions. The analysis shows a need to add variety to existing research on EU soft law, which has traditionally focused on the role of the judiciary in giving legal effects to soft law. Instead, we should be more attentive to the other three factors when discussing soft law. Besides the more holistic approach, research should also analyse soft law in a more case-specific manner in order to fully grasp the implications of choice of soft law in a domestic legal system.

scholarly journals International protection of persons with mental disabilities

Temida ◽  
2007 ◽  
Vol 10 (3) ◽  
pp. 11-24
Author(s):  
Zoran Radivojevic ◽  
Nebojsa Raicevic
Keyword(s):  
Soft Law ◽  
The European Union ◽  
Mental Disabilities ◽  
International Treaties ◽  
Council Of Europe ◽  
International Protection ◽  
Persons With Disabilities ◽  
Legal Provisions ◽  
The Status ◽  
Special Protection

In International law, the status of persons with mental disabilities is regulated within the framework on the protection of persons with disabilities. Their rights are protected not only by international treaties comprising legal provisions of binding character for the parties but also by means of the so-called "soft law" comprising international documents which are not legally binding. Most of the general and subject specific treaties on human rights do not explicitly deal with the status of persons with disabilities. Only recently have some treaties been made containing legal provisions on special protection of persons with disabilities. The most important treaty of this kind is the UN Convention on the Rights of Persons with Disabilities, adopted in the year 2006. The protection of such persons is regulated in much more detail by "soft law" which includes a number of documents adopted by the UN, the Council of Europe and the European Union. Although most of these documents primarily pertain to the rights and the status of persons with disabilities, there are a few that exclusively deal with the protection of persons with mental disorder.

scholarly journals Peranan Kepolisian Dalam Memberantas Tindak Pidana Pencurian Dengan Kekerasan Di Wilayah Patumbak (Studi Kasus Di Polsek Patumbak)

2020 ◽  
Vol 2 (1) ◽  
pp. 68-77
Author(s):  
Fransisco Lumban Batu ◽  
Taufik Siregar ◽  
Muazzul Muazzul
Keyword(s):  
Social Factors ◽  
Criminal Code ◽  
Economic Factors ◽  
Historical Process ◽  
Legal Provisions ◽  
Library Research ◽  
Police Personnel ◽  
National Police ◽  
Vast Area

Violent theft is one of the diseases of society which merges with crime, which in the historical process from generation to generation turns out that the crime is a crime that harms and tortures others. This type of research is normative juridical that is by means of library research. The results of this study are the role of the Patumbak police in violent theft as stipulated in Article 365 of the Criminal Code, in accordance with the duties and authorities of the police, conducting investigations and investigations as well as arresting the perpetrators and processing in accordance with applicable legal provisions, the factors causing the crime of theft with violence in the Patumbak Sector Police Sector are due to economic factors, social factors and illegal drugs, education factors and also the lack of guidance. Obstacles in efforts to deal with violent theft due to the lack of police personnel in the field in the Patumbak Sector Police area, the ability of the police to handle cases is still lacking, the lack of tools needed by members of the National Police in handling cases and the vast area of the Patumbak Sector Police.

scholarly journals Measuring the independence of audit oversight entities: a comparative empirical analysis

2017 ◽  
Vol 30 (2) ◽  
pp. 165-184 ◽  
Author(s):  
Lukas Loehlein
Keyword(s):  
Financial Reporting ◽  
Policy Research ◽  
Essential Elements ◽  
Future Research ◽  
Public Confidence ◽  
Content Type ◽  
Legal Provisions ◽  
Accounting Scandals ◽  
Independent Audit

Purpose Independent audit oversight is a prerequisite for restoring public confidence in financial reporting and auditing after the past accounting scandals and the financial crisis. By analysing and comparing the independence of the audit oversight boards of 27 European Member States and the USA, this study aims to provide insights into the question of how independent “independent” audit oversight boards are. Design/methodology/approach Independence is measured in terms of the organisational compositions and regulatory competences of the audit oversight authorities. The data were collected through an e-mail questionnaire that was sent to all European oversight authorities, and by analysing legal provisions of various regulators. The results are analysed and visualised by a Partial Order Scalogram Analysis with Coordinates, which allows conclusions about the similarities of various systems and their relative levels of independence. Both measurements are then equally combined into one value of material independence, which is used to rank the oversight authorities. Findings Although all countries encounter similar pressures to establish profession-independent oversight systems, this study identifies how differently “independence” has been translated in regulatory outcomes. While all countries claim to possess formal independent oversight bodies, there is a visible gap between countries with comparatively strong independent oversight authorities and systems in which accounting bodies still maintain far-reaching regulatory influence. At the same time, the results question the role of the Public Company Accounting Oversight Board (PCAOB) as the globally perceived benchmark of an entirely independent regulator. Research limitations/implications This study focuses on formal independence rather than de-facto independence. Future research has, therefore, to address how these formal arrangements have evolved in regulatory practice. Practical implications Policy makers around the world perceive independent oversight as one of the essential elements of regulatory reforms aiming at restoring public confidence in the aftermath of past accounting scandals. This study enables the comparison and benchmarking of national specific regulatory designs with other forms of independent oversight. Originality/value Although the role of independent regulation is a recurring theme in accounting research, a systematic and encompassing comparison of the intertwining of audit oversight authorities and the accounting profession has not yet been provided. This study takes a first step towards providing a quantifiable measure of the formal independence of audit oversight authorities by mobilizing concepts, methods and prior findings from the field of public policy research.

Dowry Death: Implications of Law

1998 ◽  
Vol 38 (2) ◽  
pp. 153-156 ◽  
Author(s):  
K S Latha ◽  
R Narendra
Keyword(s):  
Case Reports ◽  
Penal Code ◽  
Unique Form ◽  
Indian Women ◽  
Legal Provisions ◽  
Indian Penal Code

The giving of dowry on marriage is a widespread custom in India, but the attitude of society towards this practice is neither uniform nor consistent. ‘Dowry death’ is the result of a unique form of violence suffered by Indian women. The existing legal provisions relating to dowry and dowry deaths are summarized, and the role of the Indian Penal Code is discussed. Case reports are presented.

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