Neutrality in 2020: A Reply to 1981 Stulberg

2021 ◽  
pp. 141-144
Author(s):  
Sharon Press ◽  
Bobbi McAdoo
Keyword(s):  
Dispute Resolution ◽  
Significant Contribution ◽  
Dispute Settlement ◽  
Theory And Practice ◽  
Critical Element ◽  
Wide Range ◽  
Definition Of ◽  
Dispute Settlement Procedure ◽  
Common Understanding

Joseph (Josh) Stulberg published The Theory and Practice of Mediation: A Reply to Professor Susskind in 1981. His thesis was direct and simple: a mediator’s commitment to neutrality is the critical element which “permits mediation to be an effective, principled dispute settlement procedure” (p. 86). Stulberg articulated for all of us—then and now—the centrality of neutrality and impartiality to the very definition of mediation. This articulation continues to be a significant contribution to the dispute resolution field; indeed, the Stulberg article deserves to be labeled “foundational.” We question, however, whether the 1981 commitment to neutrality Stulberg articulated is understood by mediator practitioners today in the same way he intended, given the wide range of disputes now subject to mediation. Stulberg wrote in 1981, “[p]aradoxically, while the use of mediation has expanded, a common understanding as to what constitutes mediation has weakened” (p. 85). Ironically, despite Stulberg’s very clear thesis, his article contained the seeds that contribute to confusion in the definition of mediation itself....

EXPERIENCE OF ADVANCED COUNTRIES IN APPLICATION OF PRE-TRIAL SETTLEMENT IN CONSTRUCTION

2018 ◽  
Vol 1 (13) ◽  
pp. 99-110
Author(s):  
Oleksandra Anatoliivna Marusheva
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
System Reform ◽  
Theoretical Approaches ◽  
Short Period ◽  
Wide Range ◽  
Resolution Model ◽  
Definition Of ◽  
Settlement Of Disputes

The paper highlights the practice of pre-trial settlements in the sphere of construction in advanced countries of the world. Specific features of scientific theoretical approaches to dispute settlement in construction works have been substantiated. The international experience of advanced countries in application of the mechanisms for alternative dispute resolution has been analyzed, and a comprehensive research into international legal acts has been conducted. The vector of priority directions and ways to introduce the alternative mechanisms in the conditions of the Ukrainian state are determined. It is proposed to achieve the desired results by applying the discussed forms under administrative system reform. It is noted that today the Ukrainian state is only at the stage of creating an alternative dispute resolution model in construction. It is noted that the idea of introducing this practice in the domestic legal system is supported by a wide range of specialists. Such an interest corresponds to the desire of Ukraine to harmonize national legislation. It is grounded that the definition of priority directions and ways of introducing alternative mechanisms in the field of construction in Ukraine is to apply foreign experience in the context of reforming the modern political system, namely decentralization. It is the application of the proposed model that should be implemented at the state, regional and local levels, legally consolidate it and solve urgent problems. Such a systematization, in my opinion, will lead to a more objective and perfect settlement of disputes over a short period of time. It is noted that nowadays there is a considerable scientific interest in this issue, the expediency of using alternative mechanisms in the Ukrainian state is solved. However, this is a rather controversial issue, so there is a need for a comprehensive study of experience in foreign countries and the identification of priority areas and ways of applying experience in modern conditions in Ukraine.

ALTERNATIVE METHODS TO RESOLVE CONSUMERS DISPUTES

2021 ◽  
Vol 10 (6) ◽  
pp. 42-65
Author(s):  
M.O. DIAKONOVA
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Alternative Methods ◽  
Legal Basis ◽  
Federal Law ◽  
Online Dispute Resolution ◽  
Consumer Rights ◽  
Economic Climate ◽  
Consumer Access ◽  
Dispute Settlement Procedure

The need to develop alternative dispute resolution methods has long been known, but most of all out-of-court dispute resolution is required in consumer relations. The expansion consumer access turn to dispute resolution and filing complaints even for small requirements will help to increase respect for consumer rights and, in general, create a favorable economic climate. The lack of a legal basis for resolving consumer disputes hinders the effective protection of their rights and is not typical of foreign legal systems. In this regard, the draft Federal law “On Amendments to the Law of the Russian Federation ‘On Consumer Rights Protection’ and the Federal Law ‘On Alternative Dispute Settlement Procedure with the Participation of a Mediator (Mediation Procedure)’ in Order to Create a Legal Basis for the Development of Alternative Online Dispute Resolution” has been prepared. The article analyzes this draft law, compares the projected norms with approaches implemented in foreign legislation, and suggests measures to improve the current legislation on the protection of consumer rights by creating an online platform for the settlement of consumer disputes.

scholarly journals Smart contract: from definition to certainty

2021 ◽  
Vol 1 (1) ◽  
pp. 100-122
Author(s):  
Yuriy Truntsevsky ◽  
Vyacheslav Sevalnev
Keyword(s):  
Social Relations ◽  
New Technologies ◽  
Theory And Practice ◽  
Information Support ◽  
Smart Contracts ◽  
Legal Definition ◽  
Advantages And Disadvantages ◽  
Smart Contract ◽  
Wide Range ◽  
Definition Of

The purpose of the present article is to gain an understanding of the opportunities and difficulties created by the introduction and development of the practice of network (smart) contracts. Our research methodology is based on a holistic set of principles and methods of scholarly analysis employed by modern legal science. It uses a dialectical method involving both general approaches (structural system method, formal logical method, analysis and synthesis of individual elements, individual features of concepts, abstraction, generalization, etc.) and particular methods (legal technical, systematic, comparative, historical, and grammatical methods, method of the unity of theory and practice, etc.). We analyze the views of lawyers and other specialists from Russia and abroad, legislative innovations in the field of digital technologies, the practice of blockchain-based smart contracts, and the main risks (whether legal, technological, operational, or criminogenic) of smart contracts for economic activities with a study of their causes. In the present-day situation, it is necessary to move from the legal definition of the smart contract and its legal and technological characteristics, advantages and disadvantages to the implementation of startups in a wide range of areas, especially business, public regulation, and social relations. Scholarly and information support for such processes will contribute to the development of industry, public administration and digital technology applications to improve the life of individual citizens and society as a whole. The introduction of smart contracts does not require the adoption of new laws or regulations. Instead, one should adapt and, possibly, modify existing legal principles at the legislative and judicial levels to pave the way for the use of smart contracts and other new technologies. The system of contract law provides a sufficient framework for regulating transactions without the introduction of any new legal categories. We propose approaches to the legal definition of the smart contract and identify a set of problems that must be solved at the legislative and technical legal levels in order to implement smart contracts effectively in different spheres of life.

scholarly journals Towards a Unified Definition of Supply Chain Management

2011 ◽  
Vol 2 (3) ◽  
pp. 30-48 ◽  
Author(s):  
Edward Sweeney
Keyword(s):  
Supply Chain ◽  
Supply Chain Management ◽  
Success Factor ◽  
Critical Success Factor ◽  
Chain Management ◽  
Critical Success ◽  
Wide Range ◽  
Definition Of ◽  
Common Understanding ◽  
Narrative Description

A wide range of definitions of supply chain management (SCM) have been developed over the last three decades. The philosophy of SCM is based firmly on a recognition that it is only by working in a more integrated manner that competitive advantage can be maximised. However, for this to become a reality the development of common definitions and understandings between supply chain partners is a critical success factor. The corollary of this is that a lack of definitional consistency and a common understanding is an inhibitor to the successful adoption of SCM thinking in practice. This paper reviews a number of definitions of SCM, as well as discussions and analyses of such definitions. This leads to the central point posited in the paper – the need for a ‘unified definition’. Such a definitional construct, labelled the Four Fundamentals of SCM, is proposed with the core of the paper providing a narrative description of this construct based on a wide range of literature.

scholarly journals Review of Syaria Economy Disputes in Religious Courts within the Perspective of Small Claims Court (SCC)

FIAT JUSTISIA ◽  
2021 ◽  
Vol 15 (2) ◽  
pp. 183-194
Author(s):  
Anita Afriana ◽  
Hazar Kusmayanti
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Standard Procedure ◽  
Normative Approach ◽  
Civil Court ◽  
Small Claims ◽  
Speed Up ◽  
Small Claims Court ◽  
Dispute Settlement Procedure ◽  
Religious Courts

One of the absolute competencies of the Religious Court revolves around resolving sharia economy disputes. Quick, simple and inexpensive principles of the court must persist within Religious Court procedures, such as in sharia economy disputes relating to business disputes as regulated in Supreme Court Decree No. 14 of 2016 on Procedures in Sharia Economic Disputes. The solution in this way should be able to speed up commercial Shia dispute, but in fact, various obstacles were found. This article reviews the resolution of sharia economy disputes in Religious Court within the perspective of Small Claims Court implied through SC Decree No. 14 of 2016, along with the possible issues of Small Claims Court in Religious Court procedures. This research was conducted with a normative approach. Juridically SC Decree No. 14 of 2016 conforms with SC Decree No. 2 of 2015, now replaced with SC Decree No. 4 of 2019, permits parties to resolve certain nominal claims through a quicker dispute settlement procedure. Judges participate actively throughout the dispute resolution as Small Claims Court provides flexible interaction within formal courts. In practice, limitations such as the amount of sharia economy certified judges show that sharia economy cases are better resolved through standard procedure within the Civil Court. Other limitations, such as the insufficient electronic court (e-court) systems, limit dispute resolution capacity with further substantial limitations such as executorial clauses that are not yet regulated and can take more than 25 (twenty-five days).

Investor-State Conciliation and Mediation

2021 ◽  
Keyword(s):  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Legal Rights ◽  
Present System ◽  
Group Iii ◽  
Substantive Content ◽  
International Dispute ◽  
Settlement Agreement ◽  
Definition Of

Conciliation and mediation have great potential to resolve investor-State disputes. Nonetheless, arbitration has significantly overshadowed these two forms of amicable dispute settlement processes. This disparity is slowly changing, and, in recent times, interest has grown in conciliation and mediation, particularly given the duration, complexity, and cost of investor-State arbitrations, as well as concerns as to the substantive content of investor-State arbitral decisions. No clear consensus has emerged regarding the precise definition of either conciliation or mediation. Given the substantial overlap between the two processes, they have often been referred to as functionally equivalent and interchangeable. The best way to identify conciliation or mediation is through close examination of the particular set of rules and practices at issue. But the two dispute settlement mechanisms are generally distinguishable. At its core, conciliation involves a sole conciliator or conciliation commission considering the respective positions of the disputing parties and making nonbinding recommendations for settlement. Conciliation rules typically have flexibility to accommodate other mediation techniques that share the same purpose and may require a conciliator or conciliation commission to produce a written evaluation of the parties’ respective legal positions. In comparison, mediation is a process in which a mediator (1) assists the parties to focus on their real interests rather than legal rights, (2) generally avoids making any merits-based evaluation of parties’ positions, and (3) facilitates a meaningful dialogue between the parties to reach an amicable settlement. Unlike arbitration, in which the disputing parties have no certainty over the arbitrators’ binding decisions, the success of both conciliation and mediation depends on the willingness and cooperation of the parties to reach a voluntary and agreed settlement. A settlement agreement resulting from a mediation or conciliation process may potentially be enforced under domestic laws or in states that have ratified the Singapore Convention on Mediation, an innovation in international dispute resolution that may increase interest in investor-State conciliation and mediation. The UNCITRAL Working Group III is presently considering whether and how to promote conciliation, mediation, and other alternative dispute resolution (ADR) mechanisms in reforms to the present system of investor-State dispute settlement.

scholarly journals The content of the concept “quality of education” and the definition of methods to measure it

2021 ◽  
Vol 98 ◽  
pp. 01013
Author(s):  
Alexey Ryzhov ◽  
Konstantin Ziskin ◽  
Polina Razumovskaya ◽  
Valery Umyarov ◽  
Dmitry Peshcherov
Keyword(s):  
Educational Practice ◽  
Theory And Practice ◽  
Education Quality ◽  
Quality Of Education ◽  
Applied Aspect ◽  
Quantitative Parameters ◽  
Study Results ◽  
Definition Of ◽  
Common Understanding

The concept “quality of education” is widely used in modern educational practice; however, in teaching, there is no common understanding of the pedagogical phenomenon that underlies this concept. In this regard, it is necessary to present reflections on the content of such terms as “education” and “quality” in relation to the cultural and historical prerequisites for the formation of the category “quality of education” and various approaches to its content. Besides, the article touches upon different approaches to the procedures for measuring the quality of education and distinguishes their strengths and weaknesses. The authors encourage the reader to think about the problems of defining the quality of education as a pedagogical phenomenon in modern conditions through cultural and historical traditions. The study results in the consideration of various aspects of the evolution of such terms as “quality” and “education” in Russian pedagogy, which have influenced the modern interpretations of the concept “quality of education” and the approaches to its measurements. The article reveals the advantages of a practical understanding of the quality of education, as well as the risks associated with the transformation of education into a service and the absolutization of its quantitative parameters in measuring the quality of education. The authors raise the questions that remain open and require their solution despite the continued interest in the problems of education quality in pedagogical theory and practice. The novelty of the research is provided by taking into consideration Russian cultural and historical traditions of the formation of such terms as “education” and “quality” and the justification of the possible ways of their use in modern approaches to the measurements of quality of education, as well as the justification of the importance of using the applied aspect of the quality of education in Russian educational practice.

scholarly journals Rights of Small Peoples Living in the European North of Russia in the Legislative Acts of the Russian Federation

REGIONOLOGY ◽  
2019 ◽  
Vol 27 (1) ◽  
pp. 82-99
Author(s):  
Anna Yu. Kuznetsova
Keyword(s):  
Ethnic Groups ◽  
Dispute Settlement ◽  
Mother Tongue ◽  
National Policy ◽  
The State ◽  
Comparison Results ◽  
Wide Range ◽  
The Status ◽  
The Right ◽  
Dispute Settlement Procedure

Introduction. The work is of relevance due to the ambiguity of the status of small peoples: legislation of many countries (including Russia), being aimed at supporting small ethnic groups, is difficult to implement in practice. The article intends to analyze the situation concerning small ethnic groups living in Russia, created by the system of legislative acts. Materials and Methods. The study employed the method of content analysis, which allowed for a qualitative analysis of documents and their subsequent valid interpretation and comparison. Results. It has been revealed that Russia has not ratified the UN Declaration on the Rights of Indigenous Peoples and has its own understanding of the term; therefore the state does not recognize the right of peoples to own lands and does not establish a dispute settlement procedure. In theory, Russia provides ethnic groups with a wide range of rights, for example, the right to use lands and the right to receive education in their mother tongue. However, imp lementation of these provisions is often limited or completely impossible due to insufficient resources or conflicts of laws. It has been identified that generally the legislation makes provision for strengthening the unity and integrity of the state as the main goal of the state national policy. Discussion and Conclusion. The legislation on small peoples is of a declarative nature, so there is a need for regulation of relations between the state, enterprises and the indigenous population. Since the legislation is quite flexible due to changes in society, further monitoring of the acts adopted by the state on small ethnic groups and of the mechanisms introduced is necessary and appears to be a matter for further research.

Trade and Exchange Rates: The Joint Declaration of the Macroeconomic Policy Authorities of TPP Countries

2019 ◽  
pp. 499-520
Author(s):  
Matthias Helble ◽  
Pornpinun Chantapacdepong ◽  
Naoyuki Yoshino
Keyword(s):  
Exchange Rate ◽  
Dispute Settlement ◽  
Market Access ◽  
Macroeconomic Policy ◽  
Joint Declaration ◽  
Exchange Rate Misalignment ◽  
Trade And Exchange ◽  
Definition Of ◽  
Dispute Settlement Procedure ◽  
The International Monetary Fund

The original Trans-Pacific Partnership (TPP) agreement was the first regional trade deal explicitly to address the issue of exchange rate misalignment by attaching a “Joint Declaration of the Macroeconomic Policy Authorities” (Joint Declaration) to the main text. The declared objective was to avoid the use of currency devaluations as a means to alter market access commitments agreed to under TPP. A similar agreement is absent in the CPTPP. This chapter analyzes the Joint Declaration by studying the main elements and comparing them with existing reporting provisions of the International Monetary Fund and the World Trade Organization. We find that the Joint Declaration provisions would have increased the transparency of the central banks’ actions only marginally, as the transparency requirements were not different from the existing practices of most TPP members. Most importantly, the Joint Declaration failed in providing a definition of the concept of exchange rate manipulation and linking it to any dispute settlement procedure.

scholarly journals Towards a Unified Definition of Supply Chain Management

2013 ◽  
pp. 32-50
Author(s):  
Edward Sweeney
Keyword(s):  
Supply Chain ◽  
Supply Chain Management ◽  
Success Factor ◽  
Chain Management ◽  
The Core ◽  
Critical Success ◽  
Wide Range ◽  
Definition Of ◽  
Common Understanding ◽  
Narrative Description

A wide range of definitions of supply chain management (SCM) have been developed over the last three decades. The philosophy of SCM is based firmly on a recognition that it is only by working in a more integrated manner that competitive advantage can be maximised. However, for this to become a reality the development of common definitions and understandings between supply chain partners is a critical success factor. The corollary of this is that a lack of definitional consistency and a common understanding is an inhibitor to the successful adoption of SCM thinking in practice. This paper reviews a number of definitions of SCM, as well as discussions and analyses of such definitions. This leads to the central point posited in the paper – the need for a ‘unified definition’. Such a definitional construct, labelled the Four Fundamentals of SCM, is proposed with the core of the paper providing a narrative description of this construct based on a wide range of literature.

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