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

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.

A strategy is necessary. The policy–client conflict within different relational asymmetries: a comparison at the street-level

PurposeThis study aims to investigate the role of relational asymmetries in influencing the coping strategies adopted by frontline workers to deal with the policy–client role conflict.Design/methodology/approachA comparative analysis of three different services highlights the role of the service relationships characteristics in explaining similarities and differences in the strategies adopted by street-level bureaucrats (SLBs). The research is based on the secondary analysis of three case studies conducted in Italy: the reception system for homeless people, the job brokerage service in the public employment service and the dispute settlement procedure in the labour inspectorate.FindingsThe results underline the interaction between the characteristics of the service relationship and the different coping strategies adopted to deal with the policy–client conflict.Originality/valueThe contribution of this study is threefold. Firstly, the authors focus on the influence of the characteristics of the service relationship in terms of agency resources over SLBs’ strategies to face with users’ expectations. Secondly, the authors intend to discuss these issues analysing SLBs not only as agents with individual preferences. Thirdly, the research design allows the authors to return to the street-level bureaucracy theory its comparative essence, proposing a comparative strategy with an explorative intent.

Standardization of M&A Transactions in the USA and Europe: Empirical Research and Conceptual Analysis

The degree of standardization of the practice of M&A transactions in Europe and the United States, which is largely accepted in Russia, allows us to raise the question of the formation of lex mercatoria in the field of corporate transactions. The experience of forming and studying the standards for concluding transactions considered in the paper reflects the technological capabilities of information processing over the past 20 years. This experience is the basis for the next stage of the development of legal regulation related to the use of machine learning technologies and the transformation of the regulation of public relations. From a practical point of view, when concluding complex transactions that are yet to be unified by platform technologies, the relevance of the issue is undoubtedly relevant: what would be the usual (average, compromise, most reasonable) solution for a particular situation? The paper provides an in-depth and detailed analysis of empirical research data, in particular, the 2019 report “On the main terms of European transactions with respect to private companies” published by the American Bar Association. The author concludes that, despite some statistical limitations of the sampled information, the periodic nature, uniform methodology and international coverage of the report data allow us to track the dynamics of the use of a particular condition in time and space, as well as the level of standardization and unification of approaches to regulating M&A conditions. The author identifies the conditions that are well-established in practice, in particular, the conditions on the applicable law, the mechanism of price adjustment, risk liability insurance in connection with assurances about the circumstances, approaches to determining losses and limiting the seller’s liability. The paper also analyzes the trends of consolidating positions on controversial issues, including those related to a significant change in circumstances (MAE) and the inclusion in its scope of circumstances related to the COVID-19 pandemic, the application of the knowledge criterion, the dispute settlement procedure, etc.

Neutrality in 2020: A Reply to 1981 Stulberg

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....

Disintegration through Law

The existence of an unconditional right of withdrawal is antithetical to the idea of European integration, which is predicated on an ‘ever closer union’, and the expectation that Union rights become part of the ‘legal heritage’ of individuals. Article 50 TEU fails to take proper account of the Union’s interests, or those of Member States, individuals, and companies, and undermines the stability of treaties which international law seeks to preserve. Article 50 should be amended at the first opportunity. Leaving the jurisdiction of the Court of Justice was identified by the UK government as one of its Brexit objectives. The Court was nonetheless called upon to clarify a number of matters Article 50 left open, notably the right to revoke a withdrawal notification. While the 2020 Withdrawal Agreement preserves the Court’s material jurisdiction to interpret provisions of Union law incorporated into the Agreement, including in the context of dispute settlement procedure, individual access to the Court will be limited after the transition period.

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

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).

Institutional limitations and possible vectors of the development of mediation in Russia

The object of this research is the socio-legal institution of mediation as an alternative dispute settlement procedure in Russia. The subject of this research is the peculiarities of development of this institution and their substantiation by the specificity of institutional implementation, as well as cultural-historical aspects of the Russian society. The author indicates that the longstanding efforts of enthusiasts with the support of government structures aimed at the development of mediation as a legal institution outside its social component (mediation as an assisting profession) appeared to be ineffective and even faced rejection of a considerable part of society, as its conceptual grounds on the foundation of law do not correspond with the cultural-historical matrix of Russia. Special attention is given to the peculiarities of the establishment of mediation as a social institution and assisting profession. The author concludes on the presence of basic institutional restrictions of the development of socio-legal institution of mediation in Russia, due to the absence of mediation mechanisms of development (according to A. S. Akhiezer). The novelty of this work consist in tracing the dynamics of institutional development of mediation in the context of social evolution of the Russian society. The author believes that successful development of mediation in Russia as a social institution and assisting profession is not only possible, but essential; first and foremost, school mediation combined with remedial practices, as an effective technique of helping families, including families with children, and as instruments for working with ethno-confessional conflicts.

Settling Interstate Trade Disputes: Lessons from the EFTA Complaints Procedure

ABSTRACT When the European Free Trade Association (EFTA) was founded 60 years ago, the contracting parties established a dispute settlement procedure that sought to strike a balance between the need to supervise compliance with the EFTA Convention and the need to respect the sovereignty of the member states. The procedure of Article 31 empowered the EFTA Council to hear interstate complaints, establish examining committees, issue recommendations, and authorize retaliation. This article investigates the successes and failures of this mechanism on the basis of historical documents from the EFTA archives. It provides an overview of the complaints that were brought under Article 31 and analyses how the Council exercised its functions in dealing with these cases. The article evaluates why the complaints procedure quickly fell into disuse, finding that it failed to provide a real alternative to ordinary discussions in the Council. The article argues that lessons can be drawn from this understudied chapter of European integration, concluding that systems of dispute settlement in international economic law should avoid fusing diplomatic and judicial elements if this might preclude an independent evaluation of the legal questions raised in the context of a concrete dispute.

ALTERNATIVE METHODS TO RESOLVE CONSUMERS DISPUTES

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.