scholarly journals The Power of Pacta Sunt Servanda Principle in Arbitration Agreement

2021 ◽  
Vol 21 (4) ◽  
pp. 447
Author(s):  
Mosgan Situmorang
Keyword(s):  
Dispute Settlement ◽  
Legal Principles ◽  
Legal Principle

Pacta sunt servanda is a legal principle that applies universally. With this principle, everyone is expected to carry out an agreement made with other parties voluntarily. To enforce the principle by the court in case of dispute in the implementation of the agreement, it requires conditions that must be met. In the context of an arbitration agreement, it must also meet specific rules stipulated in the Arbitration Law. In practice, there is still disobedience to this principle where the parties who have been bound by an arbitration agreement are still taking the litigation in solving their case. In this research, the problems examined are how the principle of pacta sunt servanda is regulated in the arbitration law and how strong this principle is applied. The method used in this research is normative juridical. Based on the research, it is concluded that the implementation of the pacta sunt servanda principle is regulated in several articles of the Arbitration Law. The pacta sunt servanda principle is not valid absolutely because it is deviated by other laws or legal principles. It is recommended that parties in an agreement shall understand the choice of dispute settlement well including the consequences of such choice.

A Review of Maslahah Mursalah and Maqasid Shariah as Methods of Determining Islamic Legal Ruling

2021 ◽  
Vol 12 (3) ◽  
pp. 2994-3001
Author(s):  
Muhammad Nazir Alias Et.al
Keyword(s):  
Islamic Law ◽  
Legal Principles ◽  
Legal Principle ◽  
Difference Of Opinion ◽  
The Difference ◽  
Different Sources

The position of maqasid shariah as reference for Islamic legal ruling has been a source of dissenting opinions among contemporary ulama. Some of them accept maqasid shariah as a method of determining legal principles, whereas others do not. In classical usul fiqh literature, the discourse on maqasid shariah among the ulama only appears in discussions on the position of maslahah mursalah as a method of determining Islamic legal ruling. In light of this, the issue arises when the position of maqasid shariah, specifically as a source of law, is not mentioned by classical ulama. Therefore, a small number of scholars are of the view that maqasid Shariah is not clearly applied in the process of determining legal ruling, such as what had happened in the Shafie school of law. This article aims to review the concept of maslahah mursalah and maqasid shariah in the context of its status as a method of determining Islamic legal ruling. The findings of the study show that maslahah mursalah is not maqasid shariah because both of them originate from different sources. The rejection of maslahah mursalah by some ulama does not refer to maslahah that is in line with the higher objectives of Islamic law (maqasid shariah), but refers to maslahah that relies solely on logic and intellect. The difference of opinion among contemporary ulama regarding the position of maqasid shariah as a method of determining legal principle stems from confusion in defining and categorising maslahah mursalah and maqasid shariah.

Part V The Functions of International Organizations, Ch.30 Dispute Settlement

2016 ◽  
Author(s):  
Crook John R
Keyword(s):  
International Organizations ◽  
Dispute Settlement ◽  
Legal Principles ◽  
International Dispute ◽  
Legal Grounds ◽  
Legal Procedures ◽  
Legal Processes ◽  
Legal Writers

This chapter considers two broad categories of dispute settlement: roles and procedures that seek to resolve disputes on non-legal grounds, and those involving application of legal principles and procedures. While legal writers tend to equate ‘dispute settlement’ with settlement through legal procedures, other non-legal procedures such as diplomatic negotiations, mediation, and good offices are more often used. Indeed, it is generally recognized that negotiation is the simplest and most frequently used mode of international dispute settlement. However, the line between these two categories can be far from clear, and settlement of a dispute can involve both legal and non-legal processes.

scholarly journals Problems of Compulsory Jurisdiction and the Settlement of Disputes Relating to Straddling Fish Stocks

1999 ◽  
Vol 14 (1) ◽  
pp. 1-25 ◽  
Author(s):  
A.E. Boyle
Keyword(s):  
Dispute Settlement ◽  
Sustainable Use ◽  
Access To Justice ◽  
Fish Stocks ◽  
Legal Principle ◽  
National Jurisdiction ◽  
The Right ◽  
Settlement Of Disputes ◽  
Fisheries Law ◽  
High Seas

AbstractModern fisheries law has for some time recognised the special interest of coastal states in the management of adjacent high seas fisheries. It has been slower to acknowledge a comparable interest on the part of high seas fishing states in the conservation and management of EEZ stocks by coastal states. This imbalance of rights and obligations between these two groups of states continues to be reflected in the fisheries articles of the 1982 UNCLOS and in the 1995 Agreement on Straddling and Highly Migratory Fish Stocks. Much of the Law of the Sea Convention is about balancing the interests of different groups of states, and maintaining that balance is one of the reasons for adopting the principle of compulsory binding dispute settlement of disputes in Part XV of the Convention. Disputes about straddling fish stocks are necessarily disputes about the balance between coastal and high seas fishing states, and more generally, about the interest of the international community in sustainable management of stocks. Despite the significant changes which the 1995 Agreement makes to the substantive UNCLOS fisheries law, it remains far from clear that disputes concerning coastal state overfishing or inadequate management of straddling stocks within its own EEZ can be the subject of any form of binding process initiated by another fishing state or entity, even if there is a serious impact on the viability of stocks in other EEZs or on the high seas beyond national jurisdiction. But while coastal states and high seas states may have unequal rights and obligations with regard to fisheries access and management, they do have an equal interest in access to dispute settlement options. Both share a need for authoritative interpretation of difficult and complex texts; in both cases compulsory dispute settlement may be required in the event of failure to reach agreement on the management of shared access to straddling stocks. To hold that only coastal states have the right to compulsory binding settlement in such cases is to stabilise and protect one side of an equitable balance while leaving the other side vulnerable to erosion and instability. The question whether disputes concerning all or part of a straddling stock fall inside or outside compulsory jurisdiction is thus more than a technical question of treaty interpretation. It poses some fundamental questions about the nature of equitable utilisation as a legal principle governing use of common resources. Both in the interests of equitable access to justice, and the effective management and sustainable use of straddling stocks, compulsory jurisdiction should apply to all aspects of such a dispute. The rights of coastal states

scholarly journals Settling Inconsistencies Associated with The Genesis of The Financial Services Authority Act

2017 ◽  
Vol 2 (1) ◽  
pp. 36-41
Author(s):  
Theresia Anita Christiani ◽  
Maria Hutapea
Keyword(s):  
Financial Services ◽  
Secondary Data ◽  
Jel Classification ◽  
Financial Service ◽  
Financial Service Authority ◽  
Legal Principles ◽  
Services Sector ◽  
Financial Services Sector ◽  
Legal Principle ◽  
The One

Objective - The FSA Act the establishment of which is mandated by Article 34 of Law No. 23 of 1999 concerning the Bank of Indonesia, was enacted on 22 November 2011. This Act, together with Law No. 3 of 2004, regulates and supervises Indonesia's integrated financial services sector. This article reveals the existence of inconsistencies between the legal terms underlying the establishment of the FSA one the one hand, and the provisions contained in the Financial Service Authority itself, on the other. These inconsistencies also become evident in the light of the 1945 Constitution which facilitated the establishment of the Bank of Indonesia Law. The purpose of this article is to ascertain a method of resolving these inconsistencies associated with the genesis of the Financial Service Authority. Methodology/Technique - The research method used in this article is doctrinal in nature that uses secondary data and information sources as material to analyse the relevant problems. Findings - The research has revealed that the most appropriate method of settling these inconsistencies requires a consideration of the express wording of the FSA. Novelty - This article indicates the need to apply legal principles rather and adjudicatory methods. Type of Paper: Review Keywords: Settlement; Banking; Legal; Principle; Law. JEL Classification: J21, J28, K23.

scholarly journals Executorial Strength of Deed of Peace in Civil Dispute Resolution in Indonesia

2021 ◽  
Vol 58 (1) ◽  
pp. 5179-5184
Author(s):  
Endang Hadrian
Keyword(s):  
Dispute Resolution ◽  
Dispute Settlement ◽  
Secondary Data ◽  
Comparative Law ◽  
Legal Research ◽  
Legal Principles ◽  
Legal Rules ◽  
Legal Remedies ◽  
Peace Settlement ◽  
Civil Dispute

Civil dispute resolution can be settled through peace institutions with the legal product in form of a deed of peace. However, this institution has not been used by many people even though it provides the civil dispute settlement the executorial strength faster. Thus, it offers no further legal remedies be it in the form of appeals and cassation. Practically, a deed of peace is known to have executorial strength. However, some parties pursue the legal effort despite the peace settlement in the form of the deed of peace. The optimization of the use of the peace institution with executorial strength is expected to solve the problems. This study employed normative legal research with the perspective of legal/ judicial focused on rules/norms of Civil Procedure Law and comparative law through legal principles. It is the study of legal rules which are the benchmarks to behave appropriately. This study was carried out on the norms and principles in the secondary data, which were found in the primary, secondary, and tertiary legal sources.  

Mediated versus Cumulative Environmental Damage and the International Law Association’s Legal Principles on Climate Change

Climate Law ◽  
2014 ◽  
Vol 4 (3-4) ◽  
pp. 217-233 ◽  
Author(s):  
Alexander Zahar
Keyword(s):  
Climate Change ◽  
International Law ◽  
Critical Analysis ◽  
Climate Change Mitigation ◽  
Environmental Damage ◽  
International Policy ◽  
Legal Principles ◽  
Legal Principle ◽  
International Climate ◽  
Change Mitigation

The content of international climate change law is being subjected to investigation and critical analysis after twenty years of international policy on climate change. The ila’s Legal Principles Relating to Climate Change are a contribution to this discussion. The ila has put forth a ‘principle of prevention’ as being not just relevant to, but at the very foundation of, climate change law—in particular mitigation law. In their article in this issue of the journal, Schwarte and Frank focus on the ila’s reliance on the prevention principle, endorsing the ila’s approach in this respect. However, as I argue in this comment, the principle of prevention is neither applicable nor of relevance to the problem of climate change, and thus cannot be an element of climate change mitigation law. I also question the ila’s utilization of another legal principle—the precautionary principle—as a basis for the development of an international law of adaptation.

scholarly journals THE QUEST FOR DYNAMISM IN CONTEMPORARY LAW: MULTIPLE DIMENSIONS OF LEGAL CERTAINTY

2018 ◽  
Vol 4 (5-6) ◽  
pp. 265-283
Author(s):  
Alexandre Sales Cabral Arlota
Keyword(s):  
Legal Systems ◽  
Legal Certainty ◽  
Legal Principles ◽  
Normative Power ◽  
Academic Paper ◽  
Proper Method ◽  
Multiple Dimensions ◽  
Legal Principle

The legal principles’ evolution towards a post-positivist conception has led to the acknowledgement of their normative power. Although such movement has made legal systems better suited in reaching decisions adapted to contemporary societies, it has casted uncertainty upon allowing the vague use of abstract expressions, which the concrete meaning is difficult to understand. In this sense, it is necessary that the possible meanings of each legal principle be narrowed down and that a proper method be coined for weighting legal principles that eventually collide. The scope of this academic paper is to address legal certainty in its multiple dimensions, in the attempt to unveil its essential meanings.

scholarly journals Implementation of International Legal Principles for Judicial Remedy Of Participants in Economical Relations as a Warranty for Sustainable Development of Ukraine

2019 ◽  
Vol 8 (3) ◽  
pp. 369
Author(s):  
Vadym Koverznev
Keyword(s):  
Sustainable Development ◽  
Dispute Settlement ◽  
Legal Reform ◽  
Fair Trial ◽  
The Sustainable Development ◽  
National Legislation ◽  
Economic Relations ◽  
Legal Principles ◽  
Judicial Remedy ◽  
Judicial Protection

The article systemizes the Fundamental principles for activity of judicial authorities, which are formulated in different leading international acts and discovers their legal essence. It is proved that the implementation of the international legal principles of the judicial remedy in the national legislation of Ukraine is a warranty not only to ensure the proper protection of the rights for participants in economic relations but also the sustainable development of the entire state.The author of the article analyzes the progress in implementation of the international legal principles of judicial remedy in the national legislation of Ukraine within the framework of judicial and legal reform, which was conducted in 2016, and sets out the proposals, aimed at improving the situation in the field of extrajudicial dispute settlement (mediation). Keywords: principles of judicial remedy, sustainable development, participant in economical relations, access to court, independent court, fair trial, effectiveness of judicial protection, mediation.

scholarly journals Estoppel and relinquishment of right in the Russian and foreign legal systems

2020 ◽  
pp. 78-83
Author(s):  
Vladimir Nikolaevich Gavrilov ◽  
Nikita Vital'evich Tereshchenko ◽  
Anastasiya Andreevna Koryukina
Keyword(s):  
Negative Consequences ◽  
Anglo Saxon ◽  
Russian Science ◽  
National Legislation ◽  
Legal Principles ◽  
Judicial Practice ◽  
Legal Principle ◽  
Foreign Law ◽  
Clear Delineation ◽  
Uniform Law

This article analyzes the concepts of such legal principle as estoppel. This principle is relatively new for national legislation, and was borrowed from the countries with Anglo-Saxon legal system. The subject of this research is the correlation of rule of estoppel in the Russian and foreign law, as well as its comparison with the relinquishment of right. Its appearance and normative consolidation in the national legislation is the implementation of an important stage in the concept of development of civil legislation. The article also distinguishes between the two similar concepts of civil law: relinquishment of right and waiver. The authors raise a relevant question on the absence of uniform law enforcement practice thereof. Only few scholars within the Russian science are dealing with this topic. Based on the analysis of the aforementioned legal principles and case law, the authors come to a logical conclusion on the need for a clear delineation between the concepts of estoppel and relinquishment of right for achieving uniformity of judicial practice of the Russian Federation. The purpose the examines in the article legal institutions consists in minimization or complete elimination of negative consequences caused by inconsistent behavior of one party, as well as full protection of rights and interests of other party.

scholarly journals Prinsip Hukum Pertambangan Mineral dan Batubara yang Berpihak kepada Masyarakat Hukum Adat

2019 ◽  
Vol 16 (1) ◽  
pp. 148 ◽  
Author(s):  
Marthen B. Salinding
Keyword(s):  
Coal Mining ◽  
Indigenous People ◽  
Secondary Data ◽  
Legal Principles ◽  
Maximum Benefit ◽  
Present Generation ◽  
Legal Principle ◽  
Approach Method ◽  
Negative Impacts ◽  
Environmentally Sound

Prinsip hukum pengelolaan pertambangan dalam Undang-Undang No. 4 Tahun 2009 tentang Pertambangan mineral dan batubara didasarkan pada prinsip manfaat, keadilan, dan keseimbangan; keberpihakan kepada kepentingan bangsa; partisipatif, transparansi, dan akuntabilitas; berkelanjutan dan berwawasan lingkungan. Namun permasalahannya ketika pertambangan mineral dan batubara berada pada tanah ulayat masyarakat hukum adat prinsip hukum sebagaimana dimaksud belum menunjukkan keberpihakan kepada masyarakat hukum adat. Metode pendekatan yang digunakan dalam penelitian ini adalah yuridis normatif. Kesimpulan dari penelitian ini bahwa prinsip pertambangan mineral dan batubara belum menceminkan pengakuan dan perlindungan hak-hak masyarakat hukum adat. Masyarakat hukum adat tidak mendapatkan manfaat yang maksimal atas pengelolaan pertambangan mineral dan batubara bahkan justru dampak negatif yang dialami bukan hanya generasi sekarang tetapi juga generasi yang akan datang. Selain itu ada pemikiran pentingnya prinsip pengakuan dan prinsip persetujuan atas dasar informasi di awal tanpa paksaan sebagai prinsip hukum yang berpihak kepada masyarakat hukum adat, karena prinsip hukum tersebut memosisikan masyarakat hukum adat sebagai subjek pembangunan bukan sebagai objek pembangunan.The legal principles of mining management in Law No. 4 of 2009 concerning Mining of minerals and coal are based on the principles of benefit, justice and balance; partiality to the interests of the nation; participatory, transparency, and accountability, sustainable and environmentally sound. But the problem is when mining minerals and coal is on the oldest indigenous people’s ground. The principles of law as referred to has not yet shown partiality to indigenous people. The approach method used in this study is normative juridical, because this research is conducted by examining library materials or secondary data relating to the legal principles of mineral and coal mining that favor to indigenous people. The conclusion of this study is that the principle of mineral and coal mining has not reflected the recognition and protection of indigenous people’s rights. Indigenous people are not getting the maximum benefit from the management of mineral and coal mining even the negative impacts experienced not only by the present generation but also future generations. Apart from it, there is the thought of the importance of the principle of recognition and principle of agreement on the basis of information without coercion as a legal principle that is in favor of indigenous people. Because these legal principles places the indigenous people as the subject of development not as an object of development.

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