State courts, traditional dispute resolution and Indigenous Peoples in South Kalimantan: a socio-legal study

2017 ◽  
Author(s):  
Mirza Buana
Keyword(s):  
Dispute Resolution ◽  
Indigenous Peoples ◽  
State Courts ◽  
Legal Study

scholarly journals MEDIASI DALAM PENYELESAIAN SENGKETA PADA MASYARAKAT HUKUM ADAT

2019 ◽  
Vol 6 (1) ◽  
pp. 8
Author(s):  
Wayan Resmini ◽  
Abdul Sakban
Keyword(s):  
Dispute Resolution ◽  
Indigenous Peoples ◽  
Low Cost ◽  
Customary Law ◽  
Common Interest ◽  
Peace Agreement ◽  
Traditional Leaders ◽  
Principles Of Justice ◽  
Life Philosophy ◽  
Sense Of Justice

Pengadilan, oleh masyarakat tidak lagi dilihat sebagai lembaga penyelesaiain sengketa satu-satunya. Saat ini keberadaan lembaga pengadilan sudah terindikasi dengan berbagai kasus korupsi, kolusi, dan nepotisme, yang lebih dikenal dengan istilah KKN. Hal ini mengingat banyak produk keputusan pengadilan yang menyimpang dari asas-asas keadilan, cepat dan berbiaya murah. Dalam konteks inilah diperlukan model alternative penyelesaian sengketa pada masyararakat hukum adat yang lebih efisien, adil serta akomodatif guna menjaga kelesterian dan keberlanjutan kehidupan masyarakat hukum adat, yang lebih manusiawi dan berkeadilan. Tradisi penyelesaian sengketa pada masyarakat hukum adat didasarkan pada nilai filosofi kebersamaan (komunal), pengorbanan, nilai supernatural, dan keadilan. Dalam masyarakat hukum adat kepentingan bersama merupakan filosofi hidup yang meresap pada setiap anggota masyarakat adat. Pelaksanaan hasil mediasi yang sudah disakralkan dihadapan tokoh adat, apalagi sudah dilakukan dengan suatu upacara adat (ritual), maka kesepakatan tersebut harus dilaksanakan dengan segera, bila salah satu pihak mengingkari atau tidak bersedia melaksanakan hasil mediasi, maka pihak tersebut akan mendapatkan sanksi adat dari masyarakat hukum adat. Sanksi adat diberikan atas pertimbangan, bahwa pengingkaran kesepakatan damai merupakan bentuk pengingkaran terhadap nilai dan rasa keadilan masyarakat hukum adat. Penjatuhan sanksi adat dijatuhkan oleh tokoh adat yang bertindak sebagai penjaga nilai keadilan dan warisan leluhur dalam masyarakat hukum adat.The court, by the community is no longer seen as the only dispute resolution agency. At present the existence of a court institution has been indicated by various cases of corruption, collusion and nepotism, which are better known as KKN. This is because there are many products of court decisions that deviate from the principles of justice, fast and low cost. In this context an alternative model of dispute resolution is needed in the customary law community that is more efficient, fair and accommodative in order to maintain the sustainability and sustainability of the life of indigenous peoples, who are more humane and just. The tradition of dispute resolution in indigenous peoples is based on the values of communal philosophy, sacrifice, supernatural values, and justice. In indigenous peoples the common interest is a life philosophy that permeates every member of the indigenous community. The implementation of the mediation results that have been sacred before traditional leaders, moreover has been done with a traditional ceremony (ritual), then the agreement must be carried out immediately, if one party denies or is unwilling to carry out the mediation results, the party will get customary sanctions from the community customary law. Customary sanctions are given for consideration, that the denial of a peace agreement is a form of denial of the values and sense of justice of indigenous peoples. The imposition of customary sanctions is imposed by traditional leaders who act as guardians of the value of justice and ancestral heritage in indigenous and tribal peoples. 

International Arbitration as Private and Public Good

2020 ◽  
pp. 397-420
Author(s):  
Ralf Michaels
Keyword(s):  
Public Good ◽  
Dispute Resolution ◽  
Public Law ◽  
State Courts ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Investment Arbitration ◽  
Public Nature ◽  
Private And Public ◽  
Dispute Resolution Mechanism

This chapter addresses the private and public nature of international arbitration. International arbitration is often characterized as an exclusively private dispute resolution mechanism, sharply distinguished from litigation, which is viewed as public because it is provided by the state. This is clearest for commercial arbitration. Commercial arbitration is initiated on the basis of a private arrangement: a party cannot be subjected to arbitration unless they agreed to it previously. Investment arbitration is a little more difficult to categorize, given its emergence from public international law, its involvement of states as parties, and the frequency with which it deals with public law measures. Indeed, significant differences exist between commercial and investment arbitration. Nevertheless, it too is characterized as a private dispute resolution mechanism at least in the sense that it is resolved by institutions other than state courts. The chapter then evaluates whether arbitration is a private or public good. It also demonstrates the ways in which adjudication by courts combines elements of private and public goods, before finding a parallel combination of private and public good aspects in international arbitration.

scholarly journals Evolution and content of the principle of peaceful settlement of international disputes in International Law

KPGT_dlutz_1 ◽  
2020 ◽  
Vol 34 (3) ◽  
pp. 164-180
Author(s):  
Igor Anisimov ◽  
Elena Gulyaeva
Keyword(s):  
International Law ◽  
Dispute Resolution ◽  
Vital Role ◽  
Legal Analysis ◽  
Legal Study ◽  
Sovereign Equality ◽  
Peaceful Settlement ◽  
Domestic Jurisdiction ◽  
Settlement Evolution

This article introduces a brief outline of the inter-State conflict types. The evaluation considers the principle of peaceful disputes’ settlement evolution from antiquity to the present based on the legal analysis of historical and international legal sources. The article looks at the content of this principle and a comparative legal study of peaceful dispute resolution laid down in the UN Charter and other international legal instruments. The authors conclude that the peaceful international disputes settlement is a complex, integrated principle with several interrelated elements and the content incorporated in various international legal instruments. The article highlights the vital role of appropriate freedom of States to choose the remedies of settling their disputes. This right is a corollary to two interrelated international law principles – the sovereign equality of states and non-interference in matters within their domestic jurisdiction.

scholarly journals Efektivitas Penerapan Prinsip-Prinsip Syariah Dalam Penyelesaian Sengketa Ekonomi Syariah di Badan Arbitrase Syariah Nasional (Basyarnas)

2020 ◽  
Vol 3 (1) ◽  
pp. 15
Author(s):  
Zaidah Nur Rosidah ◽  
Layyin Mahfiana
Keyword(s):  
Data Collection ◽  
Dispute Resolution ◽  
Data Reduction ◽  
Secondary Data ◽  
Literature Study ◽  
Data Presentation ◽  
Legal Study ◽  
Research Problems

<p>This study aims to determine the application of sharia principles in sharia economic dispute resolution in the National Sharia Arbitration Agency (Basyarnas). This study uses a method of socio legal study, how sharia principles are applied in resolving sharia economic disputes so that they can provide justice for both parties. Secondary data collection is carried out through a literature study of primary legal materials and secondary legal material. Some data was requested for confirmation from the National Sharia Arbitration Agency (Basyarnas) in the Yogyakarta region. To obtain answers to the research problems, 3 activities were carried out simultaneously, namely data reduction, data presentation, conclusion drawing / syllogistic verification of deduction. The results of the research and discussion obtained several conclusions, namely first, Islamic principles have not been maximally implemented by Basyarnas, this can be seen from the basis of the consideration of Basyarnas law in its decision. Basyarnas should also correct in terms of the contract, whether it is in accordance with sharia principles or not so that the arising of the dispute is not solely due to the default of the customer but can also be caused by incompatibility with sharia principles. Second, according to Antony Allot's theory of legal effectiveness, the application of sharia principles in sharia economic dispute resolution has not been carried out in accordance with sharia principles, this is due to the lack of clarity in the case in Basyarnas' decision.</p>

Part II Ambit of Protection, 4 Parallel Proceedings

2017 ◽  
Author(s):  
McLachlan Campbell ◽  
Shore Laurence ◽  
Weiniger Matthew
Keyword(s):  
Dispute Resolution ◽  
State Courts ◽  
Breach Of Contract ◽  
The Road ◽  
Res Judicata ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
The Impact ◽  
The Relationship ◽  
Investment Treaty Arbitration

Chapter 4 deals with a complex set of problems that have arisen in determining the relationship between parallel claims in investment arbitration and other forms of dispute resolution, including proceedings in host State courts. Five issues which arbitral tribunals have had to confront in considering the impact of other forms of dispute resolution upon their jurisdiction are explored in particular: (1) the distinction between breach of contract and breach of treaty; (2) election, waiver, and ‘fork in the road’; (3) prior resort to local remedies; (4) internationalised contract claims and ‘umbrella clauses’; and (5) parallel treaty arbitration. The chapter considers the extent to which the general doctrines of lis pendens, res judicata, election, waiver, and abuse of process are capable of application in investment treaty arbitration.

scholarly journals The impact of blockchain technologies and smart contracts on dispute resolution: arbitration and court litigation at the crossroads

2019 ◽  
Vol 24 (2) ◽  
pp. 430-448 ◽  
Author(s):  
Pietro Ortolani
Keyword(s):  
Dispute Resolution ◽  
State Courts ◽  
Related Phenomenon ◽  
Smart Contracts ◽  
Court Cases ◽  
National Courts ◽  
Recognition And Enforcement ◽  
Territorial Approach ◽  
The One ◽  
The Impact

Abstract This article investigates the twofold impact that blockchain technologies and smart contracts have on dispute resolution. On the one hand, these technologies enable private parties to devise arbitral systems that are self-enforcing and, therefore, largely bypass the recognition and enforcement procedures through which State courts traditionally exert a certain control over arbitration. This phenomenon may in the future allow arbitration to become entirely self-sufficient, thus leading to the marginalization of State courts. On the other hand, however, such a marginalization has not taken place yet; to the contrary, the recent blockchain-related phenomenon of initial coin offerings has given rise to some prominent court cases. These cases raise particularly interesting jurisdictional questions, especially in light of the difficulty of reconciling the decentralized nature of the blockchain with the territorial approach whereby jurisdiction is typically allocated among national courts.

scholarly journals The Annexation of The General Judiciary Against Consumer Dispute Resolution Agency

Yuridika ◽  
2021 ◽  
Vol 36 (1) ◽  
pp. 157
Author(s):  
Otih Handayani ◽  
Agus Riwanto ◽  
Panti Rahayu
Keyword(s):  
Qualitative Methods ◽  
Dispute Resolution ◽  
Research Approach ◽  
Legal Research ◽  
Legal Study ◽  
Research Material ◽  
Library Research ◽  
The Supreme Court ◽  
Efficiency Theory ◽  
Credit Agreement

This article aims to analyze the authority of the Consumer Dispute Resolution Agency (BPSK) as Quasi-Judicial in handling consumer disputes as mandated in Article 49 paragraph (1) of Law No. 8 of 1999. This research is a normative legal study that is prescriptive and technical/applied. The research approach uses the Act approach. This legal research material uses primary legal materials and secondary legal materials. The technique of collecting legal materials through library research is then analyzed using qualitative methods. Supervision of the default clause stipulated in the credit agreement is the authority of BPSK; since 2013, the Supreme Court has consistently dismissed consumer disputes for credit agreements positioned as ordinary agreements, stating the parties to the dispute should take their case to the general Judiciary, as well as correcting BPSK's authority. This not only does not imply the principle of lex specialis derogate lex religious but also does not implement efficiency theory that ultimately harms consumers.

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