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

Apresentação

Daniel Brantes Ferreira — Thu, 11 Jul 2024 00:00:00 -0300

Editorial

Daniel Brantes Ferreira, Elizaveta A. Gromova — Thu, 11 Jul 2024 00:00:00 -0300

Impacto da mediação familiar em Portugal. Pressupostos e avaliação

Ana Melro — Thu, 11 Jul 2024 00:00:00 -0300

A avaliação é uma ferramenta imprescindível se o objetivo é perceber se houve evolução (e que tipo de evolução) na implementação de determinado programa, política e/ou projeto. No caso da mediação familiar, tal é ainda mais pertinente, não só pela relevância que poderá ter no sistema judicial português, mas mais ainda pelos efeitos que se repercutem na vida dos indivíduos envolvidos adultos, mas, sobretudo, nas crianças. O trabalho apresenta alguns factos importantes para o entendimento e contextualização do que tem sido o caminho percorrido pela mediação familiar, em Portugal, factos esses que darão o mote e servirão de suporte para a definição de indicadores de avaliação e para a construção do modelo de avaliação de impacto que se propõe aplicar. Particularmente, a mediação familiar tem ganho bastante relevo no âmbito dos Meios Alternativos de Resolução de Litígios; , por isso, muito relevante que, efetivamente, se entenda o impacto e em que diferentes dimensões vem tendo esse MARL.

The legal policy in fostering the use of alternative dispute resolution procedures

Anna Zakharkina, Sadagat Bashirova — Thu, 11 Jul 2024 00:00:00 -0300

The complications of social relations contribute to the growth of the number of disputes that result from conflict situations. In these conditions, the role of the state’s legal policy, aimed at stimulating the participants of social relations to choose economical, efficient, and prompt methods of conflict resolution, is significantly increasing. Improving the quality of dispute resolution directly correlates with a drop in the number of cases pending before a judge. This is achievable only through the development of the mechanisms of pre-trial dispute resolution and conciliation procedures. This paper aims to study legal issues and perspectives on the development of alternative dispute resolution based on the analysis of the legal policy of the Russian Federation. To achieve the mentioned goal, comparative legal analysis, a systemic approach, and formal-juridical methods were used to show the current developments of the legal policy of the Russian Federation in the sphere of stimulating and incentivizing alternative dispute resolution. Authors concluded that, unlike the domestic legal order, in foreign states, there is not only a formed normative basis for the procedures of alternative dispute resolution but also political acts of stimulating tone, designed to actively involved in these procedures more and more participants of social relations in a state of conflict. It has been established that the legal policy on introducing alternative dispute resolution procedures in foreign legal orders is characterized by a shifted emphasis on family law.

The conciliation of the parties to a dispute by a mediator (mediation)

Askhat Kuzbagarov, Kamil Arslanov — Thu, 11 Jul 2024 00:00:00 -0300

Mediation, one of the forms of conciliation of the parties, has acquired the character of a successful guide to the world of harmony. However, several barriers prevented the proper implementation of the mediation. In-depth research on mediation is needed to find a way to overcome the mentioned barriers. This paper aims to analyze mediation as a modern legal institution, defining its genesis, types, principles, and sources. To achieve this, the author used retrospective analysis to illustrate the peculiarities of the genesis of the concept of mediation, a systemic approach to study the implementation of the idea of mediation in different legal systems, and comparative legal analysis to show the development of the concept in various countries. The article reveals its formation, points of support and opportunities for resolving legal conflicts (disputes). The basic principles on which the mediation procedure is based and what actions the mediator performs are concretized, including in the form of principles and stages of mediation.

Arbitragem e energia elétrica no Brasil

Barbara Bianca Sena — Thu, 11 Jul 2024 00:00:00 -0300

A indústria elétrica abrange os segmentos de geração, transmissão e distribuição de energia, caracterizados por investimentos intensivos em infraestrutura, e a comercialização de energia. Eventos ligados à transição energética e inserção de tecnologias disruptivas têm alterado o panorama do setor, exigindo flexibilidade do sistema e maior proatividade regulatória; além disso, demandam mudanças estruturais, operacionais e mercadológicas. Há um cenário de ruptura no setor, tanto em termos de governança quanto em termos operacionais, mercadológicos e jurídicos. Nos anos 2000, a introdução de áreas de competição na indústria elétrica foi o primeiro passo para a inserção da arbitragem, impulsionado pelas reformas regulatórias e em resposta à crise energética do país, o que também culminou na primeira arbitragem no setor elétrico brasileiro envolvendo a Administração Pública. Atualmente, a Lei nº 10.848/2004 torna obrigatório o uso da arbitragem em contratos de comercialização de energia geridos pela CCEE. A arbitragem também encontra espaço em outras formas de negociação de energia, como contratos de mini e microgeração distribuída e derivativos de energia. O contexto de modernização, aumento da produção de energia renovável e abertura do mercado cria oportunidades para a expansão da arbitragem. Também há potencial para maior desenvolvimento nas relações habilitadoras da exploração de atividades da indústria elétrica intensivas em capital. O texto traz dados sobre o estado da arte desses contratos no setor elétrico brasileiro, indicando em que hipóteses a arbitragem poderia contribuir para o aprimoramento da governança no setor.

Digital opportunities for promotion of multi-door courthouse concept

Damir Valeev, Anas Nuriev — Thu, 11 Jul 2024 00:00:00 -0300

The article presents the prospects and new horizons of realization of a multi-door courthouse concept concerning modern digitalization processes. The legal system of contemporary Russia, deprived of several ideological institutions of the Soviet-era past, faced the same problem, which was relevant for the U.S.A. when creating the multi-door courthouse concept. The procedural legislation in force up to October 2019, which provided the possibility of non-judicial forms of protection of rights since the codification of 2002, proved ineffective in creating a worthy alternative to the state judicial procedure for protecting rights. Ground has been established to introduce the multi-door courthouse concept into Russian realities in a new way: a digital multi-door courthouse. This paper analyzes the modern approach to a “multi-door courthouse” in the Russian Federation, addressing its evolution, current issues and future perspectives. To achieve the paper’s aim, the authors used comparative legal analysis to show the development of the concept in different countries and a systemic approach to study the implementation of a “multi-door courthouse” in the Russian Federation.

Legal anomie in the sphere of alternative (out-of-court) dispute resolution

Dmitry Lipinsky, Zavdat Safin — Thu, 11 Jul 2024 00:00:00 -0300

The study aims to identify the manifestations of legal anomie in the legal regulation of alternative conflict resolution in Russia’s legal system and, based on the analysis of regulation in foreign countries, to offer possible ways to minimize anomie manifestations. Dialectical, formal-legal and comparative-legal methods were used in the research process. The article considers the legal regulation of mediation in Russia in a comparative-legal aspect with foreign countries and analyzes the current legislation and practice of its implementation. The study also revealed anomalous manifestations at the institutional and other levels of Russia’s legal system. Declarative fixation of legal responsibility of mediators, as well as insufficiency of normative requirements to their professional level; absence of normative fixation of mandatory centralized bodies (associations) of mediators, which in turn generates insufficiency of corporate regulation of their activities. The study proposes to borrow foreign experience in the legal regulation of mediators’ certification. The study also makes proposals to improve the current legislation.

Mediation and judicial conciliation in family disputes in Russia

Farida Khamidullina, Pavel Yakushev — Thu, 11 Jul 2024 00:00:00 -0300

The article considers the factors influencing Russia’s insufficient spread of mediation and judicial conciliation. It is substantiated that eliminating these factors will contribute to the development of conciliation procedures. The article aims to analyze the factors influencing the insufficient spead of mediation and judicial conciliation in Russia and offers ways to overcome them. The authors applied formal legal analysis to investigate the legal regulation of mediation and judicial conciliation. A systemic approach was used to address the mediation and judicial conciliation issues in Russia and offer ways to solve them. The article gives examples from court practice illustrating positive results in the form of concluded amicable and mediation agreements with the court’s assistance in achieving reconciliation by the parties to the dispute and studies the terms of amicable agreements. It also substantiates the ability of family disputes to be resolved by mediation and reveals procedural violations, which courts allow when approving amicable agreements.

Mediation as an effective way to settle economic disputes

Fatima Konova, Adel Abdullin — Thu, 11 Jul 2024 00:00:00 -0300

The mediation procedure is considered the most effective method of settling business conflicts in the system of alternative ways of dispute resolution through the prism of fundamental principles. The article reveals the advantages of settling cross-border economic disputes through mediation, including out-of-court procedures. The article examines doctrinal approaches to the mediation procedure, analyses the main problems of its unpopularity in the country and suggests ways to improve it and popularize it in Russian society through amendments to the mediation legislation, such as the legislative establishment of the term “mediation” and a uniform approach to the mediation procedure itself, including the requirements to the mediator’s identity and responsibility, as well as the exclusion from the legislation of the possibility of conducting mediation on a non-professional basis. The author pays special attention to the role of the judicial community in the development of mediation in the settlement of disputes in court.

Enforceability of agreements to mediate and mediated settlement agreements in Albania

Flutura Kola Tafaj, Silvana Çinari — Thu, 11 Jul 2024 00:00:00 -0300

The article aims to examine the provision of the Albanian Mediation Law that provides mediation as a condition for the admissibility of the lawsuit in court when the parties have provided for it in the contract as a preliminary condition before addressing the court. This legal provision is addressed considering the right of access to court and aims to discuss how these agreements to mediate are enforced. In addition, since enforcement of mediated settlement agreements is also a guarantee for the effectiveness and success of mediation, this article also focuses on the analysis of the legal framework and the problems related to their enforcement, which differ depending on how the parties have resorted to mediation (voluntarily, due to the contract, or by referral from the court), and on the type of disputes, where mainly problems arise with conflicts of ownership over immovable property. Besides the analysis of the Albanian Mediation Law, following a comparative approach, the article also addresses the mediation laws of some foreign countries.

Legal liability of mediators

Guzel Valeeva, Valery Golubtsov — Thu, 11 Jul 2024 00:00:00 -0300

The aim of the research is to identify possible gaps in the regulation of the legal liability of mediators and parties to the mediation process. The research methodology involved the use of dialectical, formal-legal, and comparative legal methods, as well as techniques of analysis and synthesis, deduction and induction, philosophical laws of unity and struggle of opposites, denial of negation, and others. In the main content, the legal liability of mediators is analyzed from the perspective of its positive and negative components, and the legal character of various manifestations of the legal liability of mediators and their place in the modern system of legal liability is identified. Significant attention is paid to the positive liability of mediators and its legal character is justified. In conclusion it is clarified that the institution of mediation as a whole and the legal liability of mediators in Russia are in the process of formation. It is proven that the legal liability of mediators has a public-law rather than a private-law character. Legal gaps in the regulation of the legal liability of mediators, as well as other parties to the mediation process, are identified, and ways to eliminate them are proposed.

The development of the ideas of “electronic court” and “electronic mediation” in Russian and foreign law

Irina Vorontsova, Roza Sitdikova — Thu, 11 Jul 2024 00:00:00 -0300

This article focuses on the development and implementation of information technologies in courts of general jurisdiction. It compares the concept of “electronic court” in Russia and abroad and concludes with their different contents. Further, the article also focuses on using the “E-Court” system in Russia and “E-SUD” in Uzbekistan. This article analyzes the main problems hindering the development of mediation in Russia. In the future, mediation may become a key alternative to litigation because it saves time and money, maintains relations between the parties to a dispute, and makes a fair decision based on their sake. The development of mediation directly depends on the improvement of the legislative framework. Based on the identified issues, recommendations that will help to realize the potential of mediation have been proposed. The article aims to analyze the possibilities of developing electronic mediation and offers recommendations on the confidentiality of online mediation.

Authentication and verification in arbitration proceedings

Nikita Makolkin, Damir Valeev — Thu, 11 Jul 2024 00:00:00 -0300

The extensive and intensive development of digital technologies is a constant process that co-occurs with the same steady increase in the level of social significance of the justice process. One of the cornerstones in integrating individual technological solutions into the justice administration ecosystem is the development of technologies that can carry out many procedures remotely. These problems indicate a real need to develop a comprehensive scientific understanding of verification and authentication. This study aims to analyze the concepts of verification and authentication in the context of modern arbitration proceedings in Russia and define issues arising from the digitalization of procedural relations. The authors concluded on the possibility of convergence of arbitration institutions and state courts, the creation of a unified information system aimed at increasing the accessibility of arbitration proceedings, which correlates with the reduction of judicial workload in state courts, as well as the prospects of integration of authentication and verification mechanisms in arbitration proceedings.

Social protection strategies in relations between Ukraine and the European Union

Thu, 11 Jul 2024 00:00:00 -0300

In today’s world, social protection is becoming an increasingly important topic that combines economic, political, and social aspects. Regardless of the level of development of a country, people are constantly looking for ways to ensure their well-being and protect themselves from negative influences. Social protection strategies are of particular importance in relations between Ukraine and the European Union. Ukraine, as a sovereign state, monitors the needs of its population and tries to adapt its social system to European standards. Therefore, the purpose of the study is to analyze the current state and prospects for the development of social protection strategies in Ukraine in the context of cooperation with the European Union to identify possible areas for improving the social sphere and ensuring a high level of social protection for the Ukrainian population. The study uses a variety of methods, including analysis, synthesis, induction, deduction, comparative legal, dialectical, and others. Considering cooperation with the European Union helps to solve socioeconomic problems and ensure a high level of social protection.

The notarial mediation as an alternative way of resolving legal disputes in the Russian Federation

Olga Kuznetsova, Tatyana Andropova, Lilia Bakulina — Thu, 11 Jul 2024 00:00:00 -0300

Mediation technologies are one of the alternative ways to resolve judicial disputes, and extrajudicial methods to resolve legal conflicts are a priority and promising direction. The mediation institute affects many aspects of social relations and is relevant in foreign legal orders and the Russian Federation. This paper aims to analyze the concept of notarial mediation as an alternative way of resolving legal disputes in the Russian Federation, define the issues related to its implementation, and further perspectives on its development. A set of methods was used to achieve the aim of the paper. Thus, the authors applied a systemic approach to study the implementation of the concept of “notarial mediation” in the Russian Federation. Also, comparative legal analysis was used to address the development of the concept of notarial mediation in different countries from a comparative perspective. The authors concluded that notarial mediation in the Russian Federation, one of the methods of out-of-court reconciliation, is becoming increasingly popular and in demand as an institution of dispute resolution with the help of a notary and a mediator (conciliator). Participation of a notary in the certification of the mediation agreement on the results of the mediation procedure guarantees the legality of the agreements reached and gives the mediation agreement executive force.

The development of arbitration proceedings in Russia

Ramil Khasanshin, Andrei Yudin — Thu, 11 Jul 2024 00:00:00 -0300

The article reviews the general development of arbitration proceedings in the Russian Federation. The paper’s main aim is to review the general development of arbitration proceedings in the Russian Federation. Using the legal comparative method allowed us to study national and foreign legislation to formulate conclusions about developing the arbitration procedure in Russian legislation. The application of the formal legal analysis made it possible to understand the concept of the arbitration court from a Russian perspective. A brief historical excursion of the development of arbitration proceedings, starting from the twelfth century, was made to achieve the paper’s aim. Following that, the author delves into the 2016 arbitration reform, its significance and the current state of arbitration in Russia. The author briefly describes and analyzes permanent arbitration institutions operating in the Russian Federation. At the end of the article, the author discusses the current trends in the development of arbitration and the challenges facing arbitration proceedings in Russia.

Pre-trial procedures in disputes on the protection of intellectual rights

Ruslan Sitdikov, Rosa Salieva — Thu, 11 Jul 2024 00:00:00 -0300

Pre-trial conflict resolution procedures do not cease to be in demand, and the development of their legal regulation does not lose its relevance. Disputes on protecting intellectual rights are no exception, and most countries have established special pre-trial procedures. However, specific difficulties emerge when applying the legal norms related to pre-trial conflict resolution procedures in disputes on the protection of intellectual rights, which can be clearly demonstrated while studying the Russian experience using the mentioned pre-trial procedures. The paper aims to analyze and define the peculiarities of pre-trial procedures in disputes on protecting intellectual rights in Russia. Using systemic approach, as well as comparative legal and formal legal analysis allowed author to define the peculiarities of pre-trial procedures in disputes on the protection of intellectual rights in the Russian Federation: special requirement on the mandatory pre-trial claim procedure is a departure from the general approach, according to which such procedure is required for disputes arising from transactions or unjust enrichment, and is probably due to the complexity of these disputes; in the administrative pre-trial procedure of dispute examination in the Chamber of Patent Disputes the parties have a wide enough set of procedural rights and opportunities, and the procedure is quite close to the judicial procedure, and in some respects even exceeds it.

The Court of Arbitration for Sport and Athlete Protests

Tushar Sharma — Thu, 11 Jul 2024 00:00:00 -0300

This research paper aims to delve into the complex intersection of athlete protests, political expressions in sports, and the Court of Arbitration for Sport’s (CAS) role, particularly emphasizing the 2020 Tokyo Olympics. An exploratory design is employed, combining historical context with analytical insight. The structure covers an introduction to CAS and the significance of athlete protests, traces the historical precedent of political expressions in Olympic Games, elaborates on the jurisdiction and procedures of CAS, provides a meticulous overview of the 2020 Tokyo Olympics controversies, and conducts a comparative analysis with previous Olympic CAS rulings. The 2020 Tokyo Olympics witnessed an unprecedented surge in athlete protests and political expressions. Key CAS rulings during these games had a profound influence on athlete behaviour, public opinion, and the stance of the Olympic Committee. Notably, CAS’s decisions revealed a cautious approach, balancing the Olympic guidelines and athlete rights. The study illuminates the evolving dynamics between sports institutions and athlete expressions. CAS, as an adjudicatory body, plays a pivotal role in shaping the trajectoryof such protests, potentially influencing future Olympic policies. Gaining insights into the intricacies of the CAS decisions empowers sports professionals, athletes, and decision-makers to predict the possible outcomes of upcoming disputes. This in turn contributes to more seamless Olympic events. The present study delves deeply into the CAS’s engagement with athlete protests during the 2020 Tokyo Olympics. Distinct from previous research, this work amalgamates historical, procedural, and ethical dimensions, offering a comprehensive understanding of an area that is both intricate and under the global spotlight.

Family mediation

Yuliya Avdonina, Evgeny Vavilin — Thu, 11 Jul 2024 00:00:00 -0300

This article examines the significance of the use of family mediation in the resolution of family conflicts from the point of view of theoretical and legal aspects. The context of the work also touches upon the significant issues of mediation regulation at the legislative level concerning the rights and obligations of the participants of the process. The author analyzes the basic principles of family mediation and identifies the advantages of this approach over court proceedings in resolving family disputes. Special attention is paid to the mediator’s role and functions in the conflict resolution process. The article also examines the legislative framework regulating family mediators’ activities, status, rights, and obligations. The article’s main idea is that family mediation is an effective tool for resolving family conflicts, contributes to the safety of family relations and allows the parties to come to a mutually beneficial solution to the problem independently. The article argues in detail the positive sides of family mediation, substantiates the need for its application in modern society and identifies the need for further research in this area for a detailed understanding of all the pros and cons of the use of family mediation in contemporary society.

Sumário

Revista Brasileira de Alternative Dispute Resolution — Thu, 11 Jul 2024 00:00:00 -0300

Expediente

Revista Brasileira de Alternative Dispute Resolution — Thu, 11 Jul 2024 00:00:00 -0300