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

Editorial

Elizaveta Gromova, Daniel Brantes Ferreira — Tue, 27 Feb 2024 00:00:00 -0300

The Consent Award in India

Akshay Verma — Tue, 27 Feb 2024 00:00:00 -0300

Multi-tier Arbitration, also called Hybrid-arbitration, in India has not been introduced in a formal manner. It has been practiced as an ad-hoc manner. What comes close to hinting the idea of hybrid-arbitration in India is s.30 of the Arbitration and Conciliation Act 1996. This section makes it possible for the arbitral tribunal to encourage parties to settle their disputes by referring their disputes to other ADR mechanisms such as conciliation and mediation. Thus, s.30 represents hybrid-arbitration mechanism and reflects the acknowledgment by the legislature of providing parties a choice for resolving disputes through a consensual mechanism even if parties have referred their disputes to Arbitration. At the same time, parties retain the option of proceeding solely with arbitration and not refer their disputes to any other mechanism. Thus, parties still have the final say in resolving their disputes at any time and place they desire. Arbitrators have also been given the discretion to raise objections to the settlement reached between the parties which they would have to state clearly. If, however, they accept the settlement then, as per the wishes of the parties they may terminate the arbitration proceedings or enforce the settlement by passing an award on the basis of that settlement. The author in this article has made an attempt to explain the very concept of Consent award, along with the mechanism of check and balance involved. The research methodology engaged by the author is explanatory, descriptive and analytical for the author explains the whole process involved in reaching a consent award, and tries to assess the potentiality of the consent award in resolving the dispute with the help of case-analysis method.

Online Dispute Resolution (ODR)

Andrea Maia, Ricardo Amorim Flório — Tue, 27 Feb 2024 00:00:00 -0300

Neste artigo exploramos as intersecções entre o instituto da Mediação, o sistema ODR (Online Dispute Resolution) e os sistemas de Inteligência Artificial, essencialmente quanto às possibilidades, cada vez mais concretas de automação do processo de resolução consensual de conflitos, permitindo-nos tecer considerações sobre uma futura e utópica “singularidade” tecnológica (?). Assim, ao analisarmos a evolução deste processo remoto de solução pacífica ao lado das tecnologias de IA, necessário se faz avaliar suas repercussões quanto aos aspectos culturais, éticos e mesmo aqueles que envolvem a necessária accountability do sistema.

Use of AI Technologies in Dispute Resolution at the Pre-Trial Stage and in Court Proceedings

Bakhteev Dmitry Valeryevich , Buglaeva Elena Anatolievna — Tue, 27 Feb 2024 00:00:00 -0300

Considering the orientation of the sphere of legal proceedings, the processes of digitalization and intellectualization create new difficulties for the subjects of procedural decision-making, which is based on the factor of doubt. Doubt allows filtering out disputable information or initiating further information search. The use of AI in legal procedures adds an element of doubt to their effectiveness: a decision maker aiming to resolve a dispute may accept the AI system’s suggestion or only consider it, which implies further verification. The study analyzes the directions and problematic points related to the integration of AI technology in judicial and expert activities of the Russian Federation and the People’s Republic of China, including the problems of presenting the output in the interface, the limits of error tolerance, AI independence, etc.

Unleashing Alternative Dispute Resolution (ADR) in Resolving Complex Legal-Technical Issues Arising in Cyberspace Lensing E-Commerce and Intellectual Property

Bhupinder Singh — Tue, 27 Feb 2024 00:00:00 -0300

The rapid growth of cyberspace has brought about numerous legal and technical challenges, often requiring innovative solutions for effective dispute resolution. The exponential growth of the digital era has ushered in a dynamic landscape known as cyberspace, replete with intricate legal and technical challenges. As online interactions, transactions, and intellectual property rights become increasingly prevalent, so too do the disputes and conflicts that arise within this virtual realm. Navigating these multifaceted complexities requires innovative approaches to dispute resolution that transcend traditional legal paradigms. Alternative Dispute Resolution (ADR) emerges as a compelling solution in this context, offering a versatile toolkit for resolving disputes that meld intricate legal considerations with complex technological dimensions. Cyberspace, characterized by its global connectivity and rapid evolution, spans a spectrum of activities from e-commerce transactions to the protection of intellectual property rights. The intricacies embedded within these digital interactions often transcend geographical boundaries, rendering traditional litigation processes cumbersome, time-consuming, and expensive. This is particularly evident when confronting disputes that intertwine legal issues with intricate technical aspects, necessitating expertise that straddles the domains of law and technology. ADR, with its diverse range of methods such as mediation, arbitration, and negotiation, presents a nimble alternative that aligns with the dynamic nature of cyberspace while catering to the specific demands of these complex disputes. Through the lens of real-world case studies, prevailing legal frameworks, and practical considerations, we delve into the symbiotic relationship between ADR and cyberspace, unraveling the pivotal role ADR plays in efficiently addressing complex disputes while fostering an environment conducive to innovation and equitable resolutions. As it traverse the terrain of alternative dispute resolution in the digital landscape, it seek to illuminate the ways in which ADR serves as a lighthouse, guiding parties through the tumultuous waters of legal-technical disputes in cyberspace. By probing the depths of its methodologies, exploring its advantages and limitations, and addressing the integration of technical expertise into the dispute resolution process, we pave the way for an in-depth understanding of how ADR not only bridges the gap between law and technology but also propels the evolution of dispute resolution mechanisms in the ever-evolving realm of cyberspace. The paper explores the applicability of ADR methods, such as mediation, arbitration, and negotiation, to navigate complex disputes in online environments, focusing on e-commerce and intellectual property realms. By analyzing case studies, legal frameworks, and practical implications, this paper highlights the benefits and challenges of employing ADR to resolve intricate disputes arising in the digital landscape.

O Instituto da Mediação sob a Perspectiva do Direito Comparado – Brasil x China e as Contribuições e Diferenciações do Modelo Chinês do Brasil

Tue, 27 Feb 2024 00:00:00 -0300

O presente artigo objetiva fazer estudo comparado dos institutos autocompositivos no Brasil e na China, em relação aos métodos de resolução de conflitos, e apontar os pontos que inspiraram as culturas ocidentais. Como objetivo específico, pretende-se analisar quais pontos de inspiração do direito chinês ao direito brasileiro e o que difere em nosso ordenamento para aquele, no tocante às resoluções de conflitos. A justificativa está na influência do direito chinês nas culturas ocidentais e, por sua vez, nos institutos jurídicos brasileiros quanto aos métodos de resolução de conflitos. Para tanto utilizou-se a metodologia qualitativa, eminentemente comparatista, por meio de pesquisa bibliográfica e estudo analítico da literatura disponível e atual sobre o tema, em sintonia com as posições doutrinárias mais sólidas possíveis, dentro de uma perspectiva lógica e fundamentada. Por essa razão, por meio desta pesquisa busca-se responder os seguintes questionamentos: o que o modelo de direito chinês pode ensinar ao modelo de direito brasileiro? A legislação e a sociedade brasileira estão preparadas para esta mudança de padrão? Após o estudo, conclui que a perspectiva posta pelo direito chinês foi correlacionada como base de inspiração e contraponto no direito brasileiro, referenciando e estimulando a positivação em nosso ordenamento de métodos de resolução de conflitos. Difere-se, no entanto, o direito brasileiro do direito chinês, visto que na China não existe a obrigação que um arcabouço jurídico venha aguilhoar o diálogo entre os indivíduos conflitantes, enquanto no Brasil, país positivista, o instituto só começou a ser difundido após edição de legislação própria.

Legal Grounds and Ethical Conditions of Alternative Forms of Criminal Law Conflict Resolution in Russia

Tue, 27 Feb 2024 00:00:00 -0300

The article’s primary purpose is to reveal the potential of alternative forms of resolution of criminal law conflict in Russia’s criminal and criminal procedure legislation. The scientific approach of the authors consists of conducting a comprehensive comparative legal analysis of the norms of international acts and foreign legislation regulating conciliation procedures in criminal proceedings. The scientific novelty lies in the systematic analysis of changes in the humanization of criminal proceedings in all countries based on recommendations developed by the international community. The methodological basis of the study was a set of methods of scientific cognition, among which the dialectical method occupies a leading place, which allowed for identifying the grounds, conditions, essential features, signs and ethical foundations of alternative forms of resolving criminal law conflict. Combining scientific cognition methods in research creates prerequisites for an objective and comprehensive approach to the identified problems. Based on general scientific dialectical methods of analysis, synthesis, abstraction, and concretization, as well as private, scientific comparative legal and technical legal methods, the authors concluded the importance attached to conciliation procedures, which have become an integral part of the legal system of the vast majority of countries. The authors argue that the institution of compromise in criminal proceedings is the core of alternative forms of resolution of criminal conflict in Russia. The author’s concept of the formation of ethical conditions for alternative forms of resolution of criminal law conflict is a system of application of various means and methods, which contributes to the simplification and cheapening of the criminal process. The authors argue that such a technique as a compromise allows for minimizing all possible material costs and, most importantly, effectively implementing the purpose of criminal proceedings to protect the victim’s rights. The development concept aims to develop new approaches to organizing the activities of the investigative bodies and the court to conduct conciliation procedures, which should encourage the accused to exhibit positive behavior and contribute to its correction. The ethical basis of the procedural compromise consists of such features as the proof of the circumstances of the criminal act, the achievement of contractual truth by inducing the accused to active repentance and voluntary repayment of the harm caused. The ethical conditions of alternative forms of resolving the criminal law conflict in Russia create a moral basis for a compromise solution and provide an atmosphere of social trust in society.

ChatGPT and Other Intelligent Chatbots

Elizaveta A. Gromova, Daniel Brantes Ferreira, Ildar R. Begishev — Tue, 27 Feb 2024 00:00:00 -0300

Day by day, new technologies are capturing our lives. ChatGPT and other intelligent chatbots are among the most promising ones. As an LLM based on machine learning, an intelligent chatbot represents a perfect human chatbot assistant that can give an answer to any question asked, write a poem, or analyze and improve the code. Despite its potential, ethical and legal issues of using intelligent chatbots, which also might be a reason for the disputes, are among the most significant concerns. Based on the idea of responsible innovation, this paper aimed to define critical ethical and legal issues arising from using ChatGPT and other intelligent chatbots and then attempt to overcome them to increase the trustworthiness of this technology. For intelligent chatbots to be actively and effectively used for the benefit of humanity while not undermining the credibility of LLMs, we have attempted to outline the technical, legal, and ethical problems, as well as significant dispute resolution concerns arising from the use of intelligent chatbots, and to make recommendations on how to minimize the risks and threats related to it. The results of this study can be used both in the process of law-making in the field of artificial intelligence and to contribute to the limited research in this area.

Digital Tools to Facilitate the Implementation of Mediation in Criminal Proceedings

Galina Rusman, Svetlana Surmeneva — Tue, 27 Feb 2024 00:00:00 -0300

The article is devoted to the issues of digitalization of criminal proceedings in general and conciliation procedures of restorative justice in particular. Mediation, as a form of resolving a criminal conflict, is used in many countries of the world and does not lose its relevance, being an alternative form of resolving a criminal conflict in cases of minor and moderate severity, aimed at restoring social balance by reconciling the accused and the victim, restoring his violated rights. In the context of the digital transformation of criminal proceedings and the expansion of the use of electronic and digital tools, mediation in criminal proceedings can take new forms that contribute to increasing the level of citizens’ access to justice, their interactive interaction and improving the efficiency of legal proceedings in general. The conducted research of the international experience of digitalization of interaction between the state and citizens in criminal proceedings shows not only the variety of electronic resources used in criminal proceedings, but also allows us to predict new architectures of criminal proceedings in small and medium-gravity criminal cases that meet the spirit of modern times. The authors have developed a model of the pre-trial procedure for the termination of a criminal case, which provides for the possibility of implementing a conciliation procedure using digital tools, allowing to terminate a criminal case for a minor crime using a universal multifunctional portal in which each of the subjects of the criminal process interactively implements their procedural rights and obligations, and the final decision is made by the court.

ADR in Tax Disputes in Poland – The State of Play and Perspectives

Hanna Patrycja Filipczyk — Tue, 27 Feb 2024 00:00:00 -0300

This article examines alternative methods for resolving tax disputes in Poland. It discusses
the current limited legal regulation in place, the proposed draft regulation from 2019 by the Committee for Codification of the General Tax Law (which did not take effect), and the emergence of consensual resolution practices despite the absence of a comprehensive regulatory framework. Between June and September 2021, the author conducted a limited empirical study involving in-depth interviews with eight representatives of taxpayers who had firsthand experience with the consensual resolution of tax disputes. The findings shed light on the practice of tax alternative dispute resolution (ADR). The article puts forth two main arguments. First, it contends that practical negotiations between tax authorities and taxpayers do occur. Second, it suggests that rather than hindering normativization (the process of establishing legal regulations), this phenomenon underscores the need for it.

Right to be heard as a part of due process of law in arbitration proceedings

Kravtsov Serhii, Serheieva Alina — Tue, 27 Feb 2024 00:00:00 -0300

International commercial arbitration as a type of alternative dispute resolution is gaining popularity quite rapidly and its use is not the result of a lack of trust in national courts, but a desire to resolve a dispute as soon as possible with the least amount of time and the ability to manage the process independently. This can be considered one of the most important reasons for choosing arbitration, as the events of the last 5 years in the world (such as the Pandemic, Climate change) have demonstrated to everyone the importance of prompt communication and, as a result, the importance of introducing various forms of arbitration proceedings. Such forms include direct (traditional) consideration of the case in the arbitration courtroom, online and hybrid forms. And in this aspect, a fairly reasonable question arises as to whether such forms of arbitration proceedings comply with the due process of law. The article will analyze the doctrinal approaches of both Ukrainian and foreign legal schools and examples of the law enforcement practice of national courts on this problematic issue. In addition, the article will analyze the Ukrainian legislation on the compliance of arbitration proceedings with due process of law and propose amendments to the current legislation. The article consists of 3 main parts which are logically interrelated and methodologically structured. The first part is devoted to the analysis of the main approaches to due process of law, which is revealed through the prism of comparative legal analysis of doctrinal concepts and analysis of law enforcement practice of national and arbitration courts. The second part reveals the essence of such a structural element of the due process of law in arbitration proceedings as the right to be heard, which plays a key role not only in the course of international commercial arbitration proceedings, but also in the procedure for recognition and enforcement of international commercial arbitration awards by national courts. The last section reveals the peculiarities of due process in virtual arbitration as a specific mechanism of alternative dispute resolution. Using a comparative legal analysis of arbitration practice and the current rules of the leading arbitration institutions, the author concludes that the introduction of online mechanisms in arbitration proceedings is effective.

Developing the Legal Regulation of Online Dispute Resolution

Munkh-Erdene Batdulam — Tue, 27 Feb 2024 00:00:00 -0300

Online dispute resolution has the potential to challenge long-established stereotypes across various facets of society, including culture, politics, the economy, social perspectives, and existence. It’s evident that as our mutual understanding becomes increasingly intertwined with communication, the rapid and efficient resolution of issues in this realm is only a matter of time. In the 21st century, the Internet has revolutionized various aspects of life, serving as a ubiquitous source of information, a vital means of communication, and a global platform for commerce. It has acted as a catalyst for integrating modern technological solutions into established operations. Consequently, the legal domain is poised to exert a substantial influence on public life, especially in mediation and arbitration. In the future, the definition of “Written form” should be expanded to include “letters, e-mails, and telegrams,” and legal regulations should be simplified accordingly. The international implementation of this practice, including telegraphic forms, offers numerous advantages, facilitating the transmission of requests, petitions, and complaints over long distances while preserving their content. The need for electronic dispute resolution is underscored by the global expansion of digital buyers, which was expected to reach 2.05 billion in 2020. E-commerce companies have been instrumental in promoting the healthy growth of online commerce, including the establishment of efficient and prompt dispute resolution mechanisms to safeguard the rights of stakeholders and enforce obligations. This trend of choice is gaining prominence. The aftermath of the COVID-19 pandemic has expedited the transition to online dispute resolution in the legal sector. Whether implemented at the international or domestic level, there are universal principles that must be adhered to in digital mediation.

Mediation in Cases of Halal Abuse

Tue, 27 Feb 2024 00:00:00 -0300

Halal is a term that is frequently used in both Muslim and non-Muslim nations. A growing demand for Halal goods and services together with instances of fraudulent or incorrect claims regarding the adherence to Halal standards has increased consumers’ ethical and religious concerns. The Halal sector is faced with innumerable problems, both domestically and internationally, which are mostly related to the misuse of the Halal stamp and other offences related to the Halal logo. Consumers are generally becoming increasingly aware of the Halal logo and information regarding the Halal status of a product’s ingredients before making a purchase. This qualitative study intended to identify the need for mediation when resolving Halal-related disputes from a consumer’s perspective. Information and data were sourced from statutes, articles, journals, newspapers, and magazines. Findings from the document analysis indicated that consumer expectations and producer education on Halal standards, procedures, and practices can all be accomplished through mediation. The ensuing awareness could aid in averting potential conflicts and raise general consumer satisfaction concerning the current degree of Halal abuse prevalent in the consumer market.

From Courtrooms to Algorithms

Naazish Fatima — Tue, 27 Feb 2024 00:00:00 -0300

Technology usage in the Dispute Resolution process across different levels has been
encouraged. Technology assists in making the process more accessible, convenient, and efficient for the parties involved. The development of Artificial Intelligence (AI) has seen calls for integrating the usage of technology with the adjudicatory process. The usage of alternative methods for the resolution of disputes, like arbitration, mediation, negotiation, and conciliation, which depart from the traditional courtroom litigation has further increased the scope for integration of AI into the process. The COVID-19 pandemic played an essential role in the shift towards these alternative methods and took the process of dispute resolution online. This has further allowed for the creation of a scenario where AI is introduced into the process. However, it still needs to be deciphered if the usage of AI is conducive or detrimental to the Dispute Resolution Process. The arguments in favour of AI revolve around increased efficiency, more possibility of resolution, and fair decisions. However, the lack of humane touch, human sympathy, and human emotions are sought as major grounds to dissuade the usage of AI. Moreover, being something programmed and developed by humans, the objectivity of the AI is also questioned. The extent and usage of AI in Dispute Resolution is a key contention that has been explored in this paper. It analyses the existing developments in AI, the application of Intelligent Resolution systems to already ongoing conflicts, and the potential for the future.

Development of online mediation in Russia and the Republic of Kazakhstan

Nurgul A. Lukmanova, Rimma Sh. Rahmatulina — Tue, 27 Feb 2024 00:00:00 -0300

Taking into account the practical and further legal implementation of alternative dispute resolution methods in the Russian Federation and the Republic of Kazakhstan, the legal community pays attention to the legislative consolidation of the status of mediation technology for dispute resolution, since the rights of citizens and legal entities and extrajudicial forms of protection of interests contribute to the development of social harmony, reducing conflict in society, as well as the development of cooperation relations in the long term. The authors drew attention to the implementation and increasing introduction of online mediation. However, in this regard, neither the Russian Federation nor the Republic of Kazakhstan have developed rules for virtual mediation, there are no regulations for conducting the procedure in the online space. The authors propose to standardize this institution. Today, the use of the mediation institute shows that this mechanism may be necessary as one of the universal ways to resolve conflicts and disputes. When studying the application of the mediation regulations of the two countries, some features and differences were identified, as well as general rules for the use of alternative dispute resolution methods. At the same time, there is no special regulation for virtual dispute resolution in the legislation of the countries under consideration. The authors recommend expanding the scope of virtual mediation in school life, using this institution more widely in intellectual property law and in other legal relations. Despite the fact that in the countries represented, various ways are used to achieve a mutually acceptable solution between the parties in court and out of court, but, as a whole, the institute of mediation and the institute of online mediation need to be expanded and standardized according to certain models, depending on the disputes under consideration.

A Study on Resolving Disputes in Trial Courts Through online Dispute Resolution in India

Soma Dey Sarkar, Subhajit Bhattacharjee — Tue, 27 Feb 2024 00:00:00 -0300

Byzantine methods and cumbersome process clog the approximately 672 district courts and their subordinate courts, which is the first door to access for violation of rights for the common citizenry. India is an emerging economy slated to become one of the topmost economies in the world in future years. Having an overwhelmingly large population of smartphone users, which is almost 55% of the population with an average age of population at 28, it can only be estimated that the numbers will grow exponentially. One of the benchmarks for tracking the growth of a democratic polity along with emerging markets is the quality of justice delivery system. The justice delivery system in India with the courts being in the eye of the storm, are often harshly criticised for working up in a snail’s pace the main reasons being paucity of infrastructure and judges and a burgeoning population of litigants. The last reason is substantiated by the fact that majority of people repose their constant faith in institutional adjudication of disputes. So the question is how dispute resolution can be time bound? Now considering the above facts and putting them in perspective, i.e., a young working population with smart phones having access to justice to resolve their personal or professional feuds, or be it a company, body of persons, or the biggest litigant of all, the government, if in certain criminal, civil proceeding, can settle the dispute having an online access to court process it will help immensely in settling disputes and claims on time. The authors herein propose to suggest measures as to how to implement the procedure and process to address and effectively implement the online mechanism in trial courts involving all concerned and interest parties and usher a new vista in justice delivery system.

The Impact of Digital Technologies on Alternative Dispute Resolution

Tripti Bhushan — Tue, 27 Feb 2024 00:00:00 -0300

Alternative Dispute Resolution (ADR) has emerged as a viable and efficient means of resolving disputes outside of traditional litigation. As digital technologies continue to advance, they have also begun to revolutionize various aspects of ADR processes. This research paper examines the intersection of digital technologies and alternative dispute resolution, exploring their impact on the efficiency, accessibility, and effectiveness of dispute resolution mechanisms. The study investigates the incorporation of digital technologies such as online dispute resolution platforms, virtual hearings, data analytics, and blockchain in ADR processes. Additionally, it discusses the potential benefits and challenges associated with the integration of these technologies and provides insights into the future of ADR in the digital era.

Arbitration Agreement in the Digital Environment

Valeriy N. Lisitsa — Tue, 27 Feb 2024 00:00:00 -0300

The article seeks to evaluate the present legal framework for arbitration on the international and national levels (on the example of the countries of the Eurasian Economic Union) in respect of concluding arbitration agreements in writing with the use of informational technologies. It is argued to be admissible as a whole and to distinguish three main requirements to arbitration agreements, such as to be valid, operative and enforceable (capable of being performed) that reflect different legal grounds for their challenge. The particular attention is paid to the specifics of conclusion and performance of arbitration agreements in investment disputes with the participation of host states that are related to their consent given in international investment treaties and national legislation as well as the application of most-favored-nation treatment in jurisdictional issues.

Expediente

Revista Brasileira de Alternative Dispute Resolution — Tue, 27 Feb 2024 00:00:00 -0300