Revista Brasileira de Alternative Dispute Resolution - Brazilian Journal of Alternative Dispute Resolution - RBADR

Editorial

2024-12-31T10:49:27-03:00

Expediente

2024-12-31T10:42:33-03:00

Role of state in developing mediation – In EU and Ukraine (a comparative perspective)

2024-12-31T11:03:18-03:00

Ukraine’s status as a candidate country and the start of negotiations on accession to the European Union require a comparative analysis and harmonization of Ukrainian legislation with the legislation of other EU Member States and European legislation. One of the areas of comparative jurisprudence is the development of mediation as a legal institution, including the state policy of legislative regulation of the mediation institution. This development has attracted the attention and support of the EU and the Council of Europe, as European democratic standards require cooperation between the state and citizens or individuals. However, the need for a more cohesive and unified approach to mediation across the EU remains crucial, as highlighted by De Palo & Trevor (2012),1 who argue that such harmonization would strengthen the effectiveness and accessibility of mediation services. The purpose of this article is, first, to compare the role of the state in the development of mediation in the EU and Ukraine. The state of research and literature on this topic in the EU and Ukraine is not sufficiently systematic, so a comparative analysis of this topic is relevant. In terms of methodology, the paper applies logical and linguistic methods. Still, some conclusions are based both on statistical data and on the observations of the participants, in particular, on their own mediation practice. Despite the more active role of the state in the development of mediation in the EU, this process cannot be called a ‘success story’. To a certain extent, we can observe similarities between the EU and Ukraine regarding successes, challenges, and the state’s role as one of the actors promoting the development of mediation.

Using predictive analytics systems to resolve a legal dispute

2024-08-23T04:37:36-03:00

Increasingly, in the mass media we hear about examples of using predictive analytics systems to obtain solutions to legal disputes. However, from the viewpoint of legal regulation, the question arises: Can we consider a solution proposed by the system to be final and legally significant, or just one of a possible set of solutions? In the scientific literature analyzing the prospects for such systems application, a parallel with legal principles is drawn. Researchers come to disappointing predictions about possible risks to human rights and freedoms if the solutions proposed by predictive systems are approved without human participation. In our study, we came to the following conclusions. Firstly, at the moment of technological development, intelligent systems cannot explain why they make a certain decision. Secondly, based on the fact that the system’s decision-making is not transparent, it is incorrect to assume that programmers or developers replace the judge. The role of programmers and developers of an intelligent system model is very important, but purely technical. Thirdly, the problem of inaccuracy of the system’s decisions refers only to the stage of the system training. The higher the quality of the datasets and the more data sets there are, the more accurate the decision made by this technology will be. That is why, forming correct datasets is an independent and very difficult technological task.

E-Musyawarah

2024-05-27T10:33:23-03:00

The continuous development of administrative disputes has highlighted the need for Alternative Dispute Resolution (ADR) to resolve administrative disputes outside the court. The concept of E-Musyawarah represents a form of ADR that offers new legal perspectives. The data collection method used in this research is secondary data obtained through library research, with the theoretical approach used being the legal system theory by Friedman. The concept of E-Musyawarah as an ADR for resolving administrative disputes outside the court reflects the trend of information and communication technology being used to facilitate dispute resolution outside the judiciary. The resolution of E-Musyawarah is agreed upon with electronic signatures registered in the E-Court to have the same legal standing as decisions by the Administrative Court. This concept is accompanied by the legal system theory by Lawrence M. Friedman. The legal challenge faced by the concept of E-Musyawarah as ADR for resolving administrative disputes outside the court is legal equality.

Evolution of sports arbitration

2024-12-31T14:23:37-03:00

Digitalization poses many challenges to sports law, including the issues related to using digital evidence in sports arbitration. As one of the most popular sports, football has given rise to many sports controversies. Parties increasingly use digital evidence to prove their position, which requires arbitrators’ correct and professional assessment. The paper aims to explore the challenges digital evidence poses in sports, specifically focusing on football. The research is primarily focused on the admissibility of digital evidence and hacked and leaked evidence, given football’s susceptibility to data breaches. Applying comparative legal analysis and case study through an analysis of existing literature, legal frameworks, and case law allowed us to scrutinize a spectrum of digital evidence utilized by litigants to illuminate the admissibility standards adopted by arbitral tribunals. As a practical implication, the authors proposed practical guidance to stakeholders and adjudicators on managing and evaluating digital evidence in sports arbitration.

Indigenous tourism as an instrument to avoid conflicts between Arctic development and indigenous resilience

2024-12-31T14:23:38-03:00

Over the last decades, tourism has experienced continued growth and deepening diversification to become one of the fastest-growing economic sectors in the Arctic. As a new phenomenon, Indigenous tourism is closely linked to sustainable development and encompasses a growing number of northern indigenous peoples and specific methods of interaction with nature and society. This research aims to focus on indigenous tourism as an effective tool for balancing emerging economies of the Arctic region and sustainable or resilient development of the Arctic aboriginal peoples who have been inhabiting this region for thousands of years. It suggests that Indigenous tourism and activities encompass several tools to prevent conflicts, reach decisions, raise environmental awareness, and teach sustainable values. This idea is relevant for all Arctic states where development is justified mainly by economic perspectives, not indigenous resilience. The topic is also appropriate for the global community because sustainable development is understood as the only possible future where people must correlate economic, environmental and social dimensions and prevent conflicts within those. The paper describes one Arctic region in the Russian Federation – the unique and intriguing Yamalo-Nenets Autonomous District. The author believes that this region, with its distinct opportunities and features, is a prime example of how indigenous tourism can be used as an instrument to avoid conflicts, taking into account sustainability factors, guaranteeing the interests of the indigenous population, and expanding the tourist experience towards sustainable values.

Underlying policy considerations for assigning the applicable substantive law in international commercial arbitration

2024-06-07T22:31:30-03:00

In international commercial arbitration, when the parties do not choose any law to govern the substance of their disputes, arbitrators are responsible for doing so. The inherent flexibility of the arbitrator’s discretion makes this task critical, as their decision can significantly impact the outcome of the arbitration. This article aims, to examine relevant policies that underlie an arbitrator’s choice of the applicable substantive law in the absence of the parties’ choice. It employs a comprehensive blend of secondary research and analytical methodologies, to identify and evaluate the nature of these policies, highlighting their possible extremes and, or irreconcilable elements. This article highlights the distinction between the direct and indirect methods used to assign the applicable substantive law and questions the practical application of these methods by arbitrators. It also explores relevant policies from three perspectives – a transnational perspective, a party perspective and a jurisprudential perspective. The findings suggest that specific, policy considerations influence the arbitrator’s decision-making process, regardless of the method employed to assign the applicable substantive. By understanding and assessing these policy considerations, arbitrators can make informed decisions when assigning the applicable substantive law in international commercial arbitration.

Mediação coletiva

2024-12-31T14:23:37-03:00

O artigo possui como objetivo traçar, sob perspectiva doutrinária e de estudo de casos, as distinções entre as mediações coletivas com participação da Administração Pública e as mediações entre pares. Sendo assim, o artigo possui como hipótese de investigação as diferenças da mediação coletiva tanto em termos de procedimento quanto na atuação do mediador. Para tanto, fez-se necessária análise da atuação dos profissionais nas duas modalidades. O trabalho possui abordagem descritivo-prescritiva, apresentando em um primeiro momento a revisão de literatura e, por conseguinte, realizando análise casuística com ênfase nos casos relacionados ao déficit do sistema de transporte público do Estado do Rio Grande do Sul. Conclui-se com apontamentos sobre as principais distinções da mediação coletiva demonstrando seus desafios aos profissionais mediadores, delineando-se perspectivas futuras para a mediação coletiva.

Enhancing deliberation in land acquisition for public interest

2024-04-05T13:30:47-03:00

This research examines the implementation of deliberation in determining the form and amount of compensation in land acquisition for public purposes and the Legal Politics of Deliberation in ideal land acquisition for public development. This paper aims to understand the implementation of deliberation in determining the form and amount of compensation in land acquisition for public purposes and the efforts to optimize the Legal Politics of Deliberation in ideal land acquisition for public purposes. This research is based on the constructivist paradigm with a socio-legal approach method. The authors find that the implementation of deliberation in determining the form and amount of compensation in land acquisition is merely procedural and requires optimization of the legal politics of deliberation regarding ideal land acquisition for public purposes, conducted with caution based on Pancasila values.

Indigenous land dispute resolution in Indonesia

2024-04-09T13:38:53-03:00

Indigenous tribes globally struggle to protect their lands, identities, and livelihoods throughout conflicts. Indigenous areas are threatened by resource exploitation and development-related land ownership conflicts, requiring efficient conflict resolution. International frameworks for post-conflict property recovery rarely address customary land rights. This study examines Indonesian traditional courts as alternatives to indigenous land disputes. It investigates the legal coherence, justice, and utility of traditional judicial proceedings using secondary legal sources in a juridical-normative manner. The study compares customary and formal legal systems, evaluates traditional court procedures for fairness, and examines their effects on sustainable land management and community empowerment. Customary justice procedures should be integrated into the legal system to promote inclusive and sustainable development and safeguard indigenous rights and traditions. The paper recommends stronger cooperation between formal and customary legal systems and suggests future research to resolve constraints and improve understanding of customary law dynamics in settling indigenous land issues in Indonesia.

Alternative dispute resolution in commercial transactions

2024-01-04T02:00:49-03:00

Alternative Dispute Resolution (ADR) entities have been authorized by national law to either offer a solution that, if accepted by both parties, will become binding on them or to impose a solution that will become binding on them regardless of their acceptance. According to the Money Loan Court Act 2003 of Bangladesh, ADR bodies have to appoint natural people who fulfill the criteria of knowledge, independence, and impartiality to complete the entire process of ADR successfully. Therefore, ADR processes can only be run by court-ordered mediation or autonomous administrative agencies, not the financial sector. The Code of Civil Procedure 1908 in Bangladesh clarifies that this procedure has been provided so that “the principles of independence and impartiality have been observed”. ADR is an avenue to resolve a civil case without going to the court. There are diverse mechanisms of ADR that can resolve the issue. Undoubtedly, ADR has many advantages. However, it is pertinent to note that it has disadvantages as well. ADR has been promoted, and the concerned parties have been encouraged to use it before or during the trial. Lord Justice Woolf, a prominent jurist of the UK, solicited for ADR to avoid cost, delay and complexity in civil cases. On the other hand, ADR is not so familiar in Bangladesh. This paper aims to discover how Bangladesh promotes ADR in commercial disputes and how Bangladesh can follow the UK approach in this respect.

Rethinking diversion programs in Indonesia

2024-12-31T14:23:37-03:00

This research aims to critique how diversion programs have been implemented in Indonesia from the point of view of the social and cultural environment. The gathered information will be subjected to a qualitative analysis that uses inductive and deductive reasoning techniques. According to the findings, at least three aspects are deficient: legal substance, which refers to the concordance of underlying regulations and guidelines for its implementation; legal structure; and cultural factors, which play a role in its implementation internally and externally (within law enforcement). In addition, the study highlights the necessity for additional research on the success rate of adopting diversion and building a new legal culture in society that promotes diversion as a method for resolving criminal cases involving children. This is a necessity brought to light by the study’s findings. This research may provide valuable insights into the advantages and disadvantages of the system already in place.

Self-Regulation as an Alternative Mechanism of Private Governance and Dispute Resolution in Russia and Kazakhstan

2024-09-08T05:26:09-03:00

The article seeks to explore self-regulation as an innovative effective legal mechanism of private governance of any economic or professional activity and dispute resolution therein, which aims to substitute the state regulation and thereby to limit the state interference into the economy. The research methodology consists of the critical analysis of scholars’ publications, different legislative acts and judicial practice of their enforcement in the Russian Federation and the Republic of Kazakhstan as well as finding legal uncertainties and gaps and making solutions for their settlement in the sphere in question. The special attention is paid to the comparative method. On the examples of the law of these two countries it is argued that the self-regulation as such lays down the freedom of economic activity guaranteed in the constitutional, business and other legislative provisions and stipulates uniting the subjects of economic or professional activity within a self-regulatory organization mainly under the scope of corporate law. It includes: (a) setting standards and other rules of pursuing any economic or professional activity by members of a self-regulatory organization; (b) monitoring compliance with such requirements and the application of different alternative methods of resolution of legal disputes with the participation of its members. Such corporate normative acts adopted by non-governmental actors are suggested to be recognized as a specific type of sources of private law to be clearly enshrined in the present legislation of the Russian Federation and the Republic of Kazakhstan. Unlike recommendatory documents of most non-profit organizations, they are mandatory and can be enforced throughout legal instruments determined in the special legislation on the self-regulation. It allows achieving the proper balance of private and public interests under the joint state and private governance of economic and professional activities. The article also stipulates enlarging the application of self-regulation to digital and other new spheres which need a lot of rules to be adopted.

The role of artificial intelligence in ensuring the efficiency and accessibility of justice

2024-01-31T12:15:02-03:00

Information technologies are changing our world extremely fast. The availability of information technologies opens new opportunities but presents challenges. The above contributes to the relevance of applying artificial intelligence (AI) in the justice system. E-justice should facilitate digital market development, which is an essential e-government task. The legal industry has always been known for relying on tradition and resisting change. However, recent advances in AI technology are nimble to disrupt the legal landscape, changing how law firms and legal departments work. The article aims to clarify how to use AI to improve the efficiency and speed of judicial processes and analyze examples of successful implementation of AI systems in the legal field. The article determines the advantages and disadvantages of AI used in justice and examines the issue of accessibility and justice in the context of AI in justice. This research is relevant since it offers an in-depth understanding and analysis of new technologies in the context of legal challenges. It is possible to resort to this research when developing effective strategies for implementing artificial intelligence in the legal field, which constitutes its practical implication.

Sumário

2024-12-31T10:46:13-03:00