scholarly journals Viewpoint of the Supreme Court of Nepal on the Arbitration Process in the Light of Party Autonomy

2020 ◽  
Vol 35 (2) ◽  
pp. 47-58
Author(s):  
Sanad Devkota
Keyword(s):  
Dispute Resolution ◽  
Human Interaction ◽  
Human Society ◽  
Party Autonomy ◽  
Arbitration Process ◽  
Litigation Process ◽  
Short Period ◽  
The Supreme Court ◽  
Settlement Of Disputes ◽  
Day By Day

Arbitration is a contract-based form of binding dispute resolution. In other words, a party’s right to refer a dispute to arbitration depends on the existence of an agreement between them and the other parties to the dispute that the dispute may be referred to arbitration. Arbitration is a private process where disputing parties agree that one or several individuals can make a decision about the dispute after receiving evidence and hearing arguments. The arbitration process is similar to a trial in that the parties make opening statements and present evidence to the arbitrator. Conflicts have existed in all cultures, religions and societies since time immemorial, as long as human have walked the earth. Human society is a repertoire where differences arise and persist as salient features, but this is also a platform where varieties of disputes find management in the form of resolution to energize the society. As conflicts are an integral part of human interaction, one must learn to deal with them tactfully, conventionally, disputes – commercial or otherwise were resolved by litigation but due to delays, costs, publicity and technicality associated with litigation, alternative dispute resolution (ADR) processes evolved. Various means of ADR or out of court settlement of disputes such as negotiation, conciliation and arbitration have come into practice. In the modern era, the business activities are increasing day by day. Along with the business activities, its complexities, differences, and disputes are also increasing day by day. The traditional method of settling disputes is the litigation process in the court of law. From the perspective of concerned parties, settlement of these disputes as quick as possible is desired. But because of the lengthily procedure and case load settlement through court is not possible. For this reason, parties were looking for the alternative process where both the parties can trust impartial person who will solve their disputes within short period of time.

scholarly journals IMPLEMENTASI KEBIJAKAN PERATURAN MAHKAMAH AGUNG NOMOR I TAHUN 2008 TENTANG PROSEDUR MEDIASI DI PENGADILAN AGAMA BANDUNG KELAS I.A

1970 ◽  
Vol 18 (1) ◽  
pp. 1-18
Author(s):  
Kun Budianto
Keyword(s):  
Dispute Resolution ◽  
Islamic Law ◽  
Regulatory Policy ◽  
Mediation Process ◽  
Court Cases ◽  
Policy Rules ◽  
Litigation Process ◽  
Settlement Of Disputes ◽  
Sense Of Justice ◽  
Religious Courts

This article discussed regulatory policy on mediation in religious courts way dispute resolution through mediation according to Islamic law and implementation of mediation in settlement court cases in Religious Courts Bandung Class I A. This research base on the policy rules by mediation in the  Religious Courts;  (a)  the  benefits to  be  gained if mediation used as a means in the  settlement  of  disputes,  namely  the  mediation process  could overcome  the  problem  of  accumulation of  matter,  the  mediation process is viewed as a means of dispute resolution that is faster and cheaper than the litigation process, enforcement of mediation can expand access for all parties to gain a sense  of  justice,  (b)  provision their peace  efforts in legislation.  (c) Indonesian society is a society that likes peace. The Implementation of the mediation process done with two ways, namely mediation initial litigation, and over litigation.

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.

scholarly journals Penyelesaian Perkara Perdata di Pengadilan Berdasarkan Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2016

2018 ◽  
Vol 7 (4) ◽  
pp. 456
Author(s):  
I Komang Wiantara
Keyword(s):  
Supreme Court ◽  
Dispute Resolution ◽  
Research Method ◽  
Civil Procedure ◽  
Good Faith ◽  
Court Decision ◽  
Party Autonomy ◽  
Peace Agreements ◽  
Procedure Code ◽  
The Supreme Court

The existence of mediation in the settlement of civil disputes in the courts is regulated in the Supreme Court Regulation No. 1 of 2016 concerning Mediation Procedures in the Court which contains ten principles including: mediation must be taken, party autonomy, mediation in good faith, time efficiency, mediator certification, mediator responsibility , confidentiality, financing, repetition of mediation, peace agreements outside the court, become integral parts in resolving disputes in court. In addition, mediation in the court strengthened peaceful efforts as stated in the Civil Procedure Code. The purpose of this study is to understand and analyze the legal strength of mediation in the Court. This study uses a normative juridical research method using the statutory approach. Study show that due to its consensual and collaborative nature, mediation always results in a dispute resolution in a win-win solution that is strengthened to become a Peace Deed, which has Executorial power like a Court Decision. Eksistensi mediasi dalam penyelesaian sengketa perdata di pengadilan diatur dalam Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2016 Tentang Prosedur Mediasi Di Pengadilan yang memuat sepuluh prinsip meliputi: mediasi wajib ditempuh, otonomi para pihak, mediasi dengan itikad baik, efisiensi waktu, sertifikasi mediator, tanggung jawab mediator, kerahasiaan, pembiayaan, pengulangan mediasi, kesepakatan perdamaian di luar pengadilan, menjadi bagian dalam integral dalam penyelesaian sengketa di pengadilan. Selain itu mediasi pada pengadilan memperkuat upaya damai sebagaimana yang tertuang di dalam hukum acara Perdata. Tujuan penelitian ini untuk memahami dan menganalisis kekuatan hukum mediasi menurut Peraturan Mahkamah Agung Republik Indonesia Nomor 1 Tahun 2016 Tentang Prosedur Mediasi Di Pengadilan. Kajian ini menggunakan metode penelitian yuridis normatif dengan menggunakan pendekatan perundang-undangan. Hasil penelitian menunjukkan bahwa karena sifatnya yang konsensual dan kolaboratif, maka mediasi selalu menghasilkan penyelesaian sengketa dengan cara sama-sama menguntungkan bagi para pihak (win-win solution) yang dikuatkan menjadi Akta Perdamaian, yang memiliki kekuatan Eksekutorial layaknya Putusan Pengadilan.

scholarly journals Ancient Dispute Resolution through Informal Processes: ADR

2020 ◽  
Vol 2 (2) ◽  
pp. 73-77
Author(s):  
Dr. Abida Hassan ◽  
◽  
Dr. Dil Muhammad Malik ◽  
Keyword(s):  
Dispute Resolution ◽  
Justice System ◽  
Formal System ◽  
Historical Study ◽  
Legal Systems ◽  
Informal Justice ◽  
Research Article ◽  
Ancient Times ◽  
Settlement Of Disputes ◽  
Day By Day

The research article discusses the historical study for settlement of disputes under the umbrella of legal systems (formal and informal) prevailing in different civilizations and in various times. This research is briefly discussing the historical aspects of various legal systems in ancient times. This research highlights that human civilizations promoted both methods, but the most popular method was informal dispute resolution (ADR) in all over the world which still is needed and being popular day by day. From study, it has been founded that informal dispute resolution (ADR) has been the choice of people and they preferred to opt this process rather to go for litigation. The research has shown the benefits and importance of settlement of disputes through informal justice system. The study high lights that the system has been working very successfully in ancient times, therefore, this pre-tested process i.e., informal dispute resolution is more sustainable in any form than the formal system because it reflects amicable practices.

scholarly journals Characteristics of dispute resolution in wetland environment: Integration between environmental, cultural and community empowerment aspects

2021 ◽  
Vol 10 (4) ◽  
pp. 349-354
Author(s):  
Mulyani Zulaeha ◽  
Suprapto Suprapto ◽  
Linda Nurulita ◽  
Rizka Annisa Falmelia
Keyword(s):  
Rural Communities ◽  
Dispute Resolution ◽  
Low Cost ◽  
Hybrid Approach ◽  
Community Empowerment ◽  
Access To Justice ◽  
Human Society ◽  
Sociological Approach ◽  
Settlement Of Disputes ◽  
The Village

The purpose of this research is to study and analyze the characteristics of dispute resolution in a wetland environment through the integration of environmental aspects, culture and empowerment of rural communities. A life that is safe, orderly and peaceful, is the life of human society so that every dispute needs to be resolved. In fact, the principle of justice is simple, fast and low cost for most people. This research method uses a socio-juridical (socio-legal) approach using an interdisciplinary or "hybrid" approach between aspects of normative legal research with a sociological approach using qualitative analysis. The results show that through the settlement of disputes based on deliberation to reach consensus (badamai) based on local wisdom that grows and develops in communities in wetland areas, it is hoped that it will be able to expand access to justice in rural communities and reduce the burden of cases on formal channels. This requires a forum as an institution that facilitates the settlement of disputes outside the court at the village level.   

scholarly journals DISPUTE RESOLUTION OF INHERITANCE DISTRIBUTION FOR THE SUBSTITUTE HEIR IN TERMS OF ISLAMIC LAW

2021 ◽  
Vol 11 (1) ◽  
pp. 97-109
Author(s):  
Putri Larasati ◽  
M. Darudin ◽  
Sirman Dahwal
Keyword(s):  
Data Collection ◽  
Dispute Resolution ◽  
Research Methodology ◽  
Islamic Law ◽  
Mediation Process ◽  
Literature Study ◽  
Legal Research ◽  
Litigation Process ◽  
Data Collection Technique ◽  
Settlement Of Disputes

This study was aimed to determine the settlement of disputes regarding the distribution of inheritance to substitute heirs left by their grandparents in terms of Islamic law and to determine the position of substitute heirs for the assets according to Al-Quran and Hadith provisions. The data collection technique used in this study was a normative legal research methodology based on a literature study. From this research, it is known that (a) The rights of grandchildren as substitute heirs to replace their deceased parents are the same as the rights which obtained by their mother's sister. It caused by the 2 sons and 3 daughters so that the distribution of inheritance is based on a ratio of 2:1. In accordance with the provisions of Q.S An-Nisaa'/7:4. To give the inheritance to a grandchild who replaces their deceased parents’ position, he/she can use a mandatory will so that he/she can receive the inheritance left by their grandparents. And if there is a dispute regarding the distribution of inheritance to the replacement heirs, it should be resolved by a mediation process as a tools of dispute resolution because it is considered as faster, easier, and less costly than the litigation process, (b) Al-Quran does not regulate the provisions regarding substitute heirs, but the Article 185 of the Islamic Law Compilation stipulates that the substitute heirs can replace their parents and the asset share of substitute heirs,must not exceed the share of the heirs which is equal to was replaced.

ON THE CONCEPT AND CONTENT OF “ANOTHER ORDER OF PRE-TRIAL SETTLEMENT OF DISPUTES, ESTABLISHED BY THE AGREEMENT”

2021 ◽  
Vol 11 (4) ◽  
pp. 282-298
Author(s):  
D.G. FILCHENKO ◽  
E.A. EVTUKHOVICH
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Dispute Settlement ◽  
Critical Assessment ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Characteristic Features ◽  
Dispute Settlement Procedure ◽  
Settlement Of Disputes ◽  
The Impact

The article analyzes the provisions of the arbitration procedural legislation and the practice of its application on a different pre-trial dispute settlement procedure established by the contract. A different pre-trial procedure is considered as an alternative to the general claim procedure for resolving disputes. The characteristic features of a different pre-trial order have been revealed. The authors summarized the practice of arbitration courts, highlighting other demanded pre-trial dispute settlement procedures. In particular, examples of atypical other methods of dispute settlement are provided. Separately, the issue of the admissibility of the cancellation of the general claim procedure for the settlement of disputes by the agreement was considered. An independent subject of the authors’ analysis was mediation as a pre-trial dispute settlement procedure. The work also focuses on the impact of a different pre-trial dispute settlement procedure on the course of the limitation period. The article discusses the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 22 June 2021 No. 18 “On Some Issues of Pre-Trial Settlement of Disputes Considered in Civil and Arbitration Proceedings”. Some of the recommendations of the Plenum of the Supreme Court of the Russian Federation received critical assessment. The authors note the existing contradictions in the legislation and possible ways to overcome them, formulate individual conclusions as a result of studying the materials of the practice of arbitration courts.

Rehabilitation studies and recovery of a once lifeless estuary: the Golden Horn

2005 ◽  
Vol 51 (11) ◽  
pp. 27-35 ◽  
Author(s):  
A. Yüksek ◽  
E. Okuş ◽  
N. Yılmaz
Keyword(s):  
Water Quality ◽  
Anthropogenic Impacts ◽  
Marine Life ◽  
Resistant Species ◽  
Golden Horn ◽  
Rich Diversity ◽  
Short Period ◽  
The 1960S ◽  
Outer Estuary ◽  
Day By Day

Within this study fluctuations in biodiversity of the Golden Horn from past to present are evaluated. Limited studies and observations dating back to 60 years ago pointed out the importance of the Golden Horn as a fishery. Unfortunately, in accordance with increase in unplanned settlements and industry around the Golden Horn in the 1960s, pollution stress became a demanding factor for this unique environment, affecting biodiversity adversely. Preliminary studies in the 1990s indicated survival of only a couple of pollution-resistant species, at the relatively cleaner outer estuary. Following intensification of “still ongoing” rehabilitation studies in 1998, a remarkable day-by-day recovery in marine life has began, in regard to improvements in water quality. Surveys conducted in 2002 using SCUBA, documented the level of diversification of life at the Golden Horn. Extended till Haliç Bridge, all appropriate substratums were intensely covered by macrobenthic forms and particularly filter feeders dominated the plankton-rich ecosystem. Detection of seahorses at the inner-middle parts of the estuary, in addition to numerous fish, invertebrate and macroalgae species, clearly depicted the level of recovery and change in the ecosystem. All results support the existence of a dynamic biological life at the Golden Horn, improving considerably with rehabilitation studies. Achieving the diversity of the 1940s is not possible, since the Black and Marmara seas, highly influencing water quality in the Golden Horn are also suffering from anthropogenic impacts and are far beyond their rich diversity in the 1940s. However, it is obvious that ecosystems should recover when mankind gave a chance to them. Recovery of the recently lifeless Golden Horn in such a short period of time is a very good example.

scholarly journals Party Autonomy

1999 ◽  
Vol 30 (1) ◽  
pp. 257
Author(s):  
Robin Cooke
Keyword(s):  
New Zealand ◽  
Dispute Resolution ◽  
Alternative Dispute Resolution ◽  
Case Law ◽  
New Delhi ◽  
Party Autonomy ◽  
National Bank ◽  
Formative Experiences

This is an augmented version of a paper delivered at the International Centre for Alternative Dispute Resolution, New Delhi, in December 1998. Party autonomy describes the principle whereby the parties to a dispute have full autonomy when making their arbitration agreement. The author discusses the Arbitration and Conciliation Act 1996 of the Parliament of India, focusing on the principle of party autonomy. He describes his formative experiences to arbitration in cases like Wellington City v National Bank of New Zealand Properties Ltd, the Arbitration and Conciliation Act itself, Indian case law before the Arbitration and Conciliation Act, and a brief look at New Zealand's Arbitration Act 1996. 

scholarly journals Penyelesaian Kredit Macet Melalui Upaya Litigasi di Koperasi Simpan Pinjam Surya Mandiri di Kabupaten Gianyar

2021 ◽  
Vol 2 (2) ◽  
pp. 440-446
Author(s):  
I Putu Surya ◽  
I Nyoman Sukandia ◽  
Ni Komang Arini Styawati
Keyword(s):  
Dispute Resolution ◽  
External Factors ◽  
Human Being ◽  
Internal Factors ◽  
Savings And Loans ◽  
Savings And Loan ◽  
Empirical Law ◽  
Research Problems ◽  
Settlement Of Disputes

Economic developmentin era globalization increasing, with finance becoming necessity for every human being. research problems are: What factors cause bad credit at Surya Mandiri Savings and Loans Cooperative Gianyar Regency and how bad credit settlement efforts through litigation at Surya Mandiri Savings and Loan Cooperative Gianyar Regency This type research used Empirical Law. the factors that cause bad credit  in cooperatives are internal factors that cause bad credit originating from the cooperative itself, external factors are factors that cause bad credit originating from customer side. Non-litigation is settlement of disputes outside the court that closed to public and the confidentiality of the parties guaranteed. Litigation dispute resolution is dispute resolution carried out through the court. It can be concluded that factors that cause bad credit at Surya Mandiri Savings and Loan Cooperative in Gianyar Regency are internal factors and external factors. The settlement of bad credit at Surya Mandiri Savings and Loan Cooperative in Gianyar Regency can be done by non-litigation and litigation. should not only pursue profit, but must be more assertive and apply the principle of prudence and Head of the cooperative credit department must be more careful providing loans to borrowers.

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