Search results

1 – 10 of over 12000
To view the access options for this content please click here
Book part
Publication date: 10 December 2003

Michal Alberstein

The present paper attempts to map the discursive relations between conflict and settlement as reflected in the realms of law and mediation during the second half of the…

Abstract

The present paper attempts to map the discursive relations between conflict and settlement as reflected in the realms of law and mediation during the second half of the 20th century, offering a 21st century model to combine the mediation drive to settle through reaching inter-subjective transformation with the legal drive to escalate and promote social conflict. Contemporary mediation, according to this model, should involve on the one hand “negotiating for justice,” according to the familiar models of problem solving and transformation, and on the other hand “fighting for law”: acknowledging the self-referential and ideological quality of conflicts, while emphasizing the pragmatic need to end them through an interpretive public act that involves value judgments.

Details

Studies in Law, Politics and Society
Type: Book
ISBN: 978-1-84950-252-8

To view the access options for this content please click here
Article
Publication date: 10 June 2014

Christina Fattore

The purpose of this study is to focus on the influence of domestic legal traditions on dispute behavior, which has been widely examined in the conflict literature, within…

Abstract

Purpose

The purpose of this study is to focus on the influence of domestic legal traditions on dispute behavior, which has been widely examined in the conflict literature, within the World Trade Organization (WTO). States with a civil legal tradition hold treaties and agreements in high esteem. Therefore, they will be more likely to file trade complaints and pursue adjudication when compared to states with common or mixed legal traditions.

Design/methodology/approach

The hypotheses in this study have been tested using a quantitative test with data from the WTO regarding trade disputes.

Findings

While civil law states are more likely to file complaints, they are less likely to pursue adjudication over a negotiated settlement.

Originality/value

This study brings to light how domestic legal systems affect state behavior within an international legal body.

Details

Journal of International Trade Law and Policy, vol. 13 no. 2
Type: Research Article
ISSN: 1477-0024

Keywords

Content available
Article
Publication date: 12 February 2020

Sabah Ahmd Farag

This theme will be addressed through main points: Special Nature of Investment Disputes and its methods of peaceful settlement. International legal framework governing…

Abstract

Purpose

This theme will be addressed through main points: Special Nature of Investment Disputes and its methods of peaceful settlement. International legal framework governing Arbitration in investment disputes: A. Multilateral legal framework. B. Bilateral legal framework/Investment promotion and protection agreementsTypes of arbitration in investment disputes. The Egyptian experience in investment disputes arbitration. The National legal framework. Egypt on the map of investment disputes in the world. A case study. Conclusion: Results related to the legal framework regulating investment disputes in Egypt. Results related to The arbitration cases against Egypt.

Design/methodology/approach

The researcher investigates the subject of international arbitration in investment disputes in the framework of voluntary theory, which is based on the premise that the satisfaction of people who are addressing the international legal norm is the basis of the same rule. In other words, the basis of international law is based on the satisfaction of the State and other international legal persons Both, and then express or implied consent.

Findings

Despite the availability of domestic and regional arbitration mechanisms in Egypt represented by a large number of cases.

Research limitations/implications

The theme for the study primarily on Egypt and the international arbitration of investment disputes, through theoretical and practical study of disputes arbitration which Egypt is a party defendant in which to focus on what was issued in which the provisions of the International Center for Settlement of Investment Disputes, in an attempt to find out the reasons for the verdicts image released it, where it came mostly against Egypt, and whether these judgments against them in investment disputes due to reasons related to the legal framework of the arbitration process, or for reasons of bodies of arbitration issued by those provisions, or to the defense, which represents the Egyptian party, or to the circumstances Economic and political (which represents the investment climate).

Originality/value

The proposed solutions to improve the conditions and factors surrounding the arbitration disputes that Egypt is waging against foreign investors, whether they are initially alleged or accused of drafting agreements and contracts, through amending the relevant legislation and laws, selecting arbitration bodies and defense bodies.

Details

Review of Economics and Political Science, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 2356-9980

Keywords

Content available
Article
Publication date: 17 July 2019

Zakariya Mustapha, Sherin Kunhibava and Aishath Muneeza

This paper aims to highlight resolution of Islamic finance dispute by common law-oriented courts in Nigeria with respect to Sharīʿah non-compliance and legal risks…

Abstract

Purpose

This paper aims to highlight resolution of Islamic finance dispute by common law-oriented courts in Nigeria with respect to Sharīʿah non-compliance and legal risks thereof, as well as the lesson to learn from Malaysia in that regard. This is with view to ensuring Sharīʿah compliance and legal safety of Islamic finance practice as prerequisites for sustainability of the Nigerian Islamic finance industry.

Design/methodology/approach

A qualitative method was used; interviews were conducted with different categories of experts and primary data collected in relation to Sharīʿah non-compliance and legal risks in adjudicating Islamic finance dispute by civil courts and the role of expert advice as basis for court referral to Financial Regulation Advisory Council of Experts. A doctrinal approach was adopted to analyse relevant legislative provisions and content analysis of secondary data relevant to applicable provisions in matters of finance before civil courts.

Findings

The paper discovers an indispensable role of conventional financial regulations in sustaining Islamic finance industry. Appropriate laws for Islamic finance under the conventional framework foster legal safety and Sharīʿah compliance of Islamic finance activities in related cases handled by courts. Nigeria civil courts can aid sustainability of Islamic finance when so equipped and enabled by laws that address apparent Sharīʿah non-compliance and legal risks in judicial dispute resolution. Inadequate legal provisions for dispute resolution breeds Sharīʿah non-compliance and legal risks in Islamic finance, undermine its prospects and stand inimical to its sustainability.

Research limitations/implications

This research is limited by its focus on Sharīʿah non-compliance and legal risks alone, which emanate mainly from judicial resolution of Islamic finance dispute by Nigerian civil courts.

Practical implications

This research seeks to motivate a determined and deliberate regulatory action and change in approach towards addressing apparent risks associated with Islamic finance while resolving disputes therein by civil courts. It has implications on common law jurisdictions generally that adopt similar approach as Nigeria's while introducing Islamic finance into their conventional finance framework.

Originality/value

Dispute resolution and other regulatory functions of civil courts are important to Islamic finance though apparently overlooked while introducing Islamic finance in Nigeria as in other emerging jurisdictions. This research ascertains the role of the civil courts as indispensable for Islamic Financial Institution (IFIs) operations and demonstrates that such courts are needed for the development and sustainability of Islamic finance industry. The research demonstrates the end-to-end requirement of Sharīʿah compliance of Islamic financial transactions as absolute and needs be ensured and guarded at dispute resolution level by properly equipped courts.

Details

ISRA International Journal of Islamic Finance, vol. 11 no. 2
Type: Research Article
ISSN: 0128-1976

Keywords

To view the access options for this content please click here
Article
Publication date: 9 November 2012

Alexander J. Bělohlávek and Filip Černý

This article aims to deal with international investment disputes, with a focus on the nature of the law applicable to the merits of such disputes.

Abstract

Purpose

This article aims to deal with international investment disputes, with a focus on the nature of the law applicable to the merits of such disputes.

Design/methodology/approach

The procedure for determining the law applicable in investment disputes, the phases of determination and the impact thereof on the applicable law were analyzed. The diagonality of the disputes and its impact on the law applicable to the merits from the perspective of the interaction between national and international law were also analyzed. Further, the authors focused on the nature of the host state's breach of obligations towards the investor anchored in the investment treaty, and the effect thereof on the law applicable to the merits. In this respect, the notion of the investment itself was analyzed according to the relevant BITs and MITs. Finally, the authors analyzed the applicability of the Ordre Public concept to investment disputes.

Findings

The study provided practical demonstrations and examples of choice of law and application issues as resolved by the tribunals established under the ICSID.

Research limitations/implications

The article deals mainly with the ICSID proceedings. Another should be also analyzed.

Originality/value

The paper provides a new insight into issues of the law applicable to investment disputes by analyzing this problematic in relation to all stages of investment arbitration proceedings. Particularly it took an innovative approach in shedding light on and analyzing the applicability of the Ordre Public concept in relation to investment protection, especially in relation to Article 52 of the ICSID Convention, and the recognition and enforcement proceedings of arbitral awards issued in the course of investment arbitration.

Details

International Journal of Law and Management, vol. 54 no. 6
Type: Research Article
ISSN: 1754-243X

Keywords

To view the access options for this content please click here
Article
Publication date: 13 April 2015

Umar Aimhanosi Oseni

The purpose of this study is to examine the legal framework for court-annexed dispute resolution in courts with Sharī‘ah jurisdiction in Nigeria, Malaysia and Singapore…

Abstract

Purpose

The purpose of this study is to examine the legal framework for court-annexed dispute resolution in courts with Sharī‘ah jurisdiction in Nigeria, Malaysia and Singapore. The major part of the study is dedicated to propose reforms in the administration of justice system in the courts with Sharī‘ah jurisdiction in Nigeria and the relevance of such reforms to the ongoing reforms in the Middle East and North African (MENA) countries.

Design/methodology/approach

This is an integrative literature review, which adopts a comparative approach in analyzing the conceptual framework of amicable dispute resolution in the modern world with particular reference to the Sharī‘ah court.

Findings

The findings of this research illustrate the adaptability of the practices in Malaysia and Singapore in the courts with Sharī‘ah jurisdiction in Nigeria and the MENA region.

Practical implications

An exposition of the dispute resolution processes in Islamic law reveals the relevance of these processes in modern reforms of the administration of justice system. The practical implications of this study include the streamlining of the rules and procedures of modern Sharī‘ah courts in post-revolution Arab countries to allow for court-annexed amicable (alternative) dispute resolution initiatives.

Originality/value

As far as it is known, this is the first conceptual study on the court-annexed dispute resolution frameworks of Sharī‘ah courts in three commonwealth jurisdictions.

Details

International Journal of Conflict Management, vol. 26 no. 2
Type: Research Article
ISSN: 1044-4068

Keywords

To view the access options for this content please click here
Article
Publication date: 12 July 2011

Andrew Agapiou and Bryan Clark

The purpose of this research is to paint a picture of the current utility of mediation in the Scottish construction sector; determine the willingness of Scottish…

Abstract

Purpose

The purpose of this research is to paint a picture of the current utility of mediation in the Scottish construction sector; determine the willingness of Scottish construction lawyers to shift away from traditional dispute resolution approaches towards mediation; and ascertain the drivers towards the adoption of mediatory techniques and the barriers to change.

Design/methodology/approach

Drawn from a questionnaire survey, this paper seeks to add to the dispute resolution literature by identifying the attitudes of construction lawyers on the use and effectiveness of mediation to resolve construction disputes in Scotland.

Findings

The findings suggest that there is a core of Scottish construction lawyers in Scotland that recognize the promise of mediation as a useful dispute resolution tool. Respondents generally profess knowledge of the process and some measure of positive practical experience and espouse positive views on mediation. Their response to mediation then does not appear to be one of cultural conservatism or fear of the unknown as opposed to traditional dispute resolution mechanisms, which for all their imperfections lawyers understand unequivocally.

Research limitations/implications

It is recognized that the introduction of mediatory techniques into construction disputes will have a cumulative effect on the Scottish legal fraternity over time. Cross‐sectional studies are often unable to yield information about the direction of causal relationships between variables that are interrelated in a complex way. Neither do cross‐sectional studies permit researchers to assess the effectiveness of intervention strategies.

Originality/value

This is the first empirical work ascertaining the views and experiences of Scottish construction lawyers on mediation. While the research reveals evidence of a modest bottom‐up growth of construction mediation in Scotland, it also provides insight into key policy issues which will require to be resolved if mediation is to move from the margins to the mainstream of construction disputing practices in Scotland.

Details

International Journal of Law in the Built Environment, vol. 3 no. 2
Type: Research Article
ISSN: 1756-1450

Keywords

To view the access options for this content please click here
Article
Publication date: 12 October 2015

Fei Lanfang

This paper aims to examine how the law may play a role in mediation by paying special attention to how the law is excluded from and included in the process of court…

Abstract

Purpose

This paper aims to examine how the law may play a role in mediation by paying special attention to how the law is excluded from and included in the process of court mediation in China.

Design/methodology/approach

Hundred model court mediation cases selected by the Supreme People’s Court of China were analysed and reviewed.

Findings

The law is relevant in Chinese-style court mediation in four ways: first, judge-mediators are intended to use mediation to avoid resolving legal difficulties or challenges; second, judge-mediators consult the law to anticipate the losing party and the potential negative effects that might result from the adjudication; third, judge-mediators refer to the law to propose a mediation scheme or plan to guide the parties to settle; and fourth, judge-mediators would use the law as a bargaining chip in various ways to induce the parties to settle.

Research limitations/implications

Standards should be set out for the use of law in the mediation process to standardise judge-mediators’ actions, to ensure that the law is not used coercively to push settlement, which would undermine the parties’ self-determination in mediation.

Originality/value

This paper provides an original understanding of how law affects the process, the outcomes and, ultimately, the nature of settlements that parties achieve through court mediation in China. This study contributes to the literature that argues that ethical norms and legal standards should be set to direct those legal evaluations.

Details

International Journal of Conflict Management, vol. 26 no. 4
Type: Research Article
ISSN: 1044-4068

Keywords

To view the access options for this content please click here
Article
Publication date: 1 May 2001

Nada Korac‐Kakabadse, Alexander Kouzmin and Phillip Reeves Knyght

Examines access to justice, within the Australian context of an adversarial system, from a consumer’s perspective. It is argued that the current system of justice…

Abstract

Examines access to justice, within the Australian context of an adversarial system, from a consumer’s perspective. It is argued that the current system of justice represents the most conservative element of Australian society and that the courtroom discourse structure and the legal professional code of practice do little to ensure access to justice or quality of service. Inequality in communication and in the distribution of wealth, affecting all spheres of social life, especially the legal system, pose major barriers to access to justice. Stemming from these two principal barriers to equality in access to justice, a multitude of other barriers are perceived to exist. These perceived barriers are magnified by various platforms of social and political analysis as well as historical, contextual factors and administrative action. Attention is drawn to the emerging need for a continuous alignment of administrative and justice systems with democratic justice principles and global social changes.

Details

Women in Management Review, vol. 16 no. 3
Type: Research Article
ISSN: 0964-9425

Keywords

To view the access options for this content please click here
Book part
Publication date: 10 June 2019

Shauhin Talesh and Jérôme Pélisse

This article explores how legal intermediaries facilitate or inhibit social change. We suggest the increasing complexity and ambiguity of legal rules coupled with the…

Abstract

This article explores how legal intermediaries facilitate or inhibit social change. We suggest the increasing complexity and ambiguity of legal rules coupled with the shift from government to governance provide legal intermediaries greater opportunities to influence law and social change. Drawing from new institutional sociology, we suggest rule-intermediaries shape legal and social change, with varying degrees of success, in two ways: (1) law is filtered through non-legal logics emanating from various organizational fields and (2) law is professionalized by non-legal professionals. We draw from case studies in the United States and France to show how intermediaries facilitate or inhibit social change.

Details

Studies in Law, Politics, and Society
Type: Book
ISBN: 978-1-78973-727-1

Keywords

1 – 10 of over 12000