Alec Stone Sweet
- Published in print:
- 2000
- Published Online:
- April 2004
- ISBN:
- 9780198297710
- eISBN:
- 9780191601095
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297718.003.0001
- Subject:
- Political Science, Comparative Politics
The regular and effective settlement of disputes by a third‐party dispute resolver leads to the evolution of a set of behavioural norms, which become authoritative in society. In turn, normative ...
More
The regular and effective settlement of disputes by a third‐party dispute resolver leads to the evolution of a set of behavioural norms, which become authoritative in society. In turn, normative evolution shapes how interests are formed and power operates. In the context of constitutional law and politics, this system of reciprocal influence has led to the judicialization of European politics and the constitutionalization of European law. The final section of this chapter surveys a variety of perspectives on European constitutional politics, including a principal‐agent framework, the legislative politics approach, judicial decision‐making and conceptualizing legal normative autonomy.Less
The regular and effective settlement of disputes by a third‐party dispute resolver leads to the evolution of a set of behavioural norms, which become authoritative in society. In turn, normative evolution shapes how interests are formed and power operates. In the context of constitutional law and politics, this system of reciprocal influence has led to the judicialization of European politics and the constitutionalization of European law. The final section of this chapter surveys a variety of perspectives on European constitutional politics, including a principal‐agent framework, the legislative politics approach, judicial decision‐making and conceptualizing legal normative autonomy.
Alec Stone Sweet and Thomas Brunell
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0008
- Subject:
- Political Science, Comparative Politics
To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers ...
More
To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This second paper, which was originally published in the American Political Science Review in 1998, employs econometric and other modes of statistical analysis as well as qualitative ‘process tracing’ to evaluate specific causal propositions about how European Community (EC) integration and the construction of the European legal system (as enforced by the European Court of Justice) have proceeded. The research design constitutes a mixed means of testing: (1) deductive derivation of hypotheses from materials developed in prior comparative research, (2) collection of data to operationalize the theorized variables, (3) testing of the hypotheses through quantitative data analysis, and (4) cross-checking of these results and exploration of other theorized relationships or dynamics (qualitatively). The research leads Stone Sweet and Brunell to propose a theory of European legal integration (i.e. the process by which Europe has constructed a transnational rule-of-law polity), which integrates three interdependent causal factors: contracting among individuals, third-party dispute resolution, and the production of legal norms. The theory is tested, with reference to the EC, in two stages: first, the construction of the legal system is explained and the relationships between the three key variables are analysed over the life of the EC; second, the impact of the operation of the legal system is examined on governance (i.e. on policy processes and outcomes) at both the national and the supranational levels.Less
To sustain a viable social science of law and courts, testable propositions, appropriate research designs for testing those hypotheses, and comparative materials are needed; Ch. 4, and the two papers within it, discuss and use three strategies for building theory through testing and comparing. This second paper, which was originally published in the American Political Science Review in 1998, employs econometric and other modes of statistical analysis as well as qualitative ‘process tracing’ to evaluate specific causal propositions about how European Community (EC) integration and the construction of the European legal system (as enforced by the European Court of Justice) have proceeded. The research design constitutes a mixed means of testing: (1) deductive derivation of hypotheses from materials developed in prior comparative research, (2) collection of data to operationalize the theorized variables, (3) testing of the hypotheses through quantitative data analysis, and (4) cross-checking of these results and exploration of other theorized relationships or dynamics (qualitatively). The research leads Stone Sweet and Brunell to propose a theory of European legal integration (i.e. the process by which Europe has constructed a transnational rule-of-law polity), which integrates three interdependent causal factors: contracting among individuals, third-party dispute resolution, and the production of legal norms. The theory is tested, with reference to the EC, in two stages: first, the construction of the legal system is explained and the relationships between the three key variables are analysed over the life of the EC; second, the impact of the operation of the legal system is examined on governance (i.e. on policy processes and outcomes) at both the national and the supranational levels.
Alec Stone Sweet
- Published in print:
- 2002
- Published Online:
- November 2003
- ISBN:
- 9780199256488
- eISBN:
- 9780191600234
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0199256489.003.0010
- Subject:
- Political Science, Comparative Politics
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law ...
More
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.Less
The two papers in Ch. 5 examine how lawyers and law professors, operating in private arenas, successfully revived a pre-modern legal system, the Lex Mercatoria – the international body of trade law derived from merchant practice. Stone Sweet’s paper traces the development of a transnational legal system, comprised of a national contract law and a network of arbitration houses that compete to supply third-party dispute resolution to the international commercial world. The paper is divided into two parts. The first discusses, in a theoretical manner, obstacles to the emergence of a stable network of traders engaged in relatively long-range, impersonal exchange, focusing on three generic problems of human community: cooperation and commitment, transaction costs, and institutional choice and governance. The second part examines three quite different regimes that have governed transnational commercial activity: from the mediaeval law merchant, to the Westphalian state system and its institutional failings (including discussion of conflict of laws practices), and – the principal focus of the chapter – the new Lex Mercatoria and its institutionalization.
Benjamin Kelly
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199599615
- eISBN:
- 9780191731525
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599615.003.0007
- Subject:
- Classical Studies, European History: BCE to 500CE
This chapter argues that the evidence does not support the view that petitioning and litigation in Roman Egypt were usually a last resort, employed only if ‘private’ dispute resolution methods ...
More
This chapter argues that the evidence does not support the view that petitioning and litigation in Roman Egypt were usually a last resort, employed only if ‘private’ dispute resolution methods failed. Rather, the evidence shows petitioning and litigation in many cases underpinned and gave strength to ‘private’ mechanisms of resolving disputes: ‘private’ dispute resolution often took place in ‘the shadow of the law’. A petition could be a way of forcing another party to negotiate seriously for a settlement, or could raise the implicit threat of litigation to force another party’s compliance to a settlement reached through negotiation, mediation, or arbitration.Less
This chapter argues that the evidence does not support the view that petitioning and litigation in Roman Egypt were usually a last resort, employed only if ‘private’ dispute resolution methods failed. Rather, the evidence shows petitioning and litigation in many cases underpinned and gave strength to ‘private’ mechanisms of resolving disputes: ‘private’ dispute resolution often took place in ‘the shadow of the law’. A petition could be a way of forcing another party to negotiate seriously for a settlement, or could raise the implicit threat of litigation to force another party’s compliance to a settlement reached through negotiation, mediation, or arbitration.
Klaus J. Hopt and Felix Steffek
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199653485
- eISBN:
- 9780191758270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653485.003.0001
- Subject:
- Law, Comparative Law, Private International Law
This chapter analyses the law and principles of mediation from a comparative perspective and develops regulatory models. The chapter commences with an overview of the development of mediation in the ...
More
This chapter analyses the law and principles of mediation from a comparative perspective and develops regulatory models. The chapter commences with an overview of the development of mediation in the European Union and the wider world, followed by an explanation of the outline and approach of the book. Then an extensive functional comparison of the regulation of mediation in the 22 countries covered by the book is undertaken. In particular, comparison is made between the definition of mediation and models of regulation, the institutional integration of mediation in dispute resolution procedures and substantive law, the structure of the mediation procedure, specific fields of law and the professional law of mediators. Finally, there is a comparative analysis of empirical evidence, a critical evaluation of mediation law and a development of guidelines for regulating mediation.Less
This chapter analyses the law and principles of mediation from a comparative perspective and develops regulatory models. The chapter commences with an overview of the development of mediation in the European Union and the wider world, followed by an explanation of the outline and approach of the book. Then an extensive functional comparison of the regulation of mediation in the 22 countries covered by the book is undertaken. In particular, comparison is made between the definition of mediation and models of regulation, the institutional integration of mediation in dispute resolution procedures and substantive law, the structure of the mediation procedure, specific fields of law and the professional law of mediators. Finally, there is a comparative analysis of empirical evidence, a critical evaluation of mediation law and a development of guidelines for regulating mediation.
Christopher J. Peters
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195387223
- eISBN:
- 9780199894338
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387223.003.0004
- Subject:
- Law, Philosophy of Law
This chapter begins articulating a dispute-resolution account of legal authority by hypothesizing a basic, bipartite dispute and developing, analytically, the essential features of a procedure ...
More
This chapter begins articulating a dispute-resolution account of legal authority by hypothesizing a basic, bipartite dispute and developing, analytically, the essential features of a procedure capable of resolving it peacefully. It argues that a successful dispute-resolution procedure must be perceived by the disputants as reasonably accurate, and that the two essential ingredients of procedural accuracy are competence and impartiality. Disputants will have good reasons to agree to a procedure that is reasonably competent and impartial; they also, through the mechanism of constructive consent, will have good reasons to abide by the results of a reasonably competent and impartial procedure, even if they did not consent to it ex ante. These reasons for obedience can apply in multipartite social contexts as well, albeit in a more complex and contingent fashion. The value of reasonably accurate dispute resolution thus can support a general, non-absolutist account of legal authority, one that minimizes (although it does not entirely avoid) the flaws of rival accounts.Less
This chapter begins articulating a dispute-resolution account of legal authority by hypothesizing a basic, bipartite dispute and developing, analytically, the essential features of a procedure capable of resolving it peacefully. It argues that a successful dispute-resolution procedure must be perceived by the disputants as reasonably accurate, and that the two essential ingredients of procedural accuracy are competence and impartiality. Disputants will have good reasons to agree to a procedure that is reasonably competent and impartial; they also, through the mechanism of constructive consent, will have good reasons to abide by the results of a reasonably competent and impartial procedure, even if they did not consent to it ex ante. These reasons for obedience can apply in multipartite social contexts as well, albeit in a more complex and contingent fashion. The value of reasonably accurate dispute resolution thus can support a general, non-absolutist account of legal authority, one that minimizes (although it does not entirely avoid) the flaws of rival accounts.
Christopher J. Peters
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780195387223
- eISBN:
- 9780199894338
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195387223.001.0001
- Subject:
- Law, Philosophy of Law
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an ...
More
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedures. Those properties—competence and impartiality—give democracy its advantage over other forms of government. They also underwrite the adversary nature of common-law adjudication and the duties and constraints of democratic judges. And they ground a defense of constitutional law and judicial review against persistent objections that those practices are “countermajoritarian” and thus nondemocratic. The work thus canvasses many fundamental problems within the diverse disciplines of legal philosophy, democratic theory, philosophy of adjudication, and public-law theory and suggests a unified approach to unraveling them.Less
Law often purports to require people, including government officials, to act in ways they think are morally wrong or harmful. What is it about law that can justify such a claim? This book offers an answer to this problem of law's authority, one that illuminates the unique appeal of democratic government, the peculiar structure of adversary adjudication, and the contested legitimacy of constitutional judicial review. The book contends that law should be viewed primarily as a device for avoiding or resolving disputes, a function that implies certain core properties of authoritative legal procedures. Those properties—competence and impartiality—give democracy its advantage over other forms of government. They also underwrite the adversary nature of common-law adjudication and the duties and constraints of democratic judges. And they ground a defense of constitutional law and judicial review against persistent objections that those practices are “countermajoritarian” and thus nondemocratic. The work thus canvasses many fundamental problems within the diverse disciplines of legal philosophy, democratic theory, philosophy of adjudication, and public-law theory and suggests a unified approach to unraveling them.
Federico Varese
- Published in print:
- 2001
- Published Online:
- November 2003
- ISBN:
- 9780198297369
- eISBN:
- 9780191600272
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019829736X.003.0003
- Subject:
- Political Science, Russian Politics
The Russian state is examined as a supplier of protection. The chapter first explores how Russian citizens perceive the institutions of authority that are supposed to supply services of protection ...
More
The Russian state is examined as a supplier of protection. The chapter first explores how Russian citizens perceive the institutions of authority that are supposed to supply services of protection and dispute resolution, such as the legal system, state (government) officials and the police, and whether they expect fair treatment from them. Survey data from several Eastern European countries are compared in order to establish whether people should be expected to use these institutions and, more generally, to determine the levels of confidence in the legal system: the data indicate a low level of confidence in crucial institutions of authority. The second section of the chapter looks at one instance of state-supplied protection services – the courts of arbitration or Arbitrazh: the court where cases involving property rights and the privatization process are heard. The survey data presented suggest that the majority of the customers of the Arbitrazh courts are large enterprises that were formerly state-owned and were privatized in the 1990s.Less
The Russian state is examined as a supplier of protection. The chapter first explores how Russian citizens perceive the institutions of authority that are supposed to supply services of protection and dispute resolution, such as the legal system, state (government) officials and the police, and whether they expect fair treatment from them. Survey data from several Eastern European countries are compared in order to establish whether people should be expected to use these institutions and, more generally, to determine the levels of confidence in the legal system: the data indicate a low level of confidence in crucial institutions of authority. The second section of the chapter looks at one instance of state-supplied protection services – the courts of arbitration or Arbitrazh: the court where cases involving property rights and the privatization process are heard. The survey data presented suggest that the majority of the customers of the Arbitrazh courts are large enterprises that were formerly state-owned and were privatized in the 1990s.
Sandra F. Joireman
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199782482
- eISBN:
- 9780199897209
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199782482.003.0006
- Subject:
- Political Science, Political Theory
Accepted wisdom regarding the geography of power in most African countries holds that power radiates outward from the center, with the strength of the state most pronounced in the capital and often ...
More
Accepted wisdom regarding the geography of power in most African countries holds that power radiates outward from the center, with the strength of the state most pronounced in the capital and often barely discernable in the hinterland. With the intense urbanization in many African countries over the past decade we are increasingly seeing areas and populations that are geographically proximate to the center of power, yet as beyond state control as the geographic hinterland. Urban informal settlements are “pockets of statelessness” within capital cities that often have neither formal political representation nor basic public goods. This chapter explores the persistence of one of these “pockets of statelessness,” the Kibera slum community in urban Nairobi, and identifies why attempts to title and enforce property rights there have been bypassed. Four competing enforcement regimes (state courts, NGOs, bureaucratic entrepreneurs, and gangs) are identified within Kibera, and their effectiveness with regard to social welfare is evaluated.Less
Accepted wisdom regarding the geography of power in most African countries holds that power radiates outward from the center, with the strength of the state most pronounced in the capital and often barely discernable in the hinterland. With the intense urbanization in many African countries over the past decade we are increasingly seeing areas and populations that are geographically proximate to the center of power, yet as beyond state control as the geographic hinterland. Urban informal settlements are “pockets of statelessness” within capital cities that often have neither formal political representation nor basic public goods. This chapter explores the persistence of one of these “pockets of statelessness,” the Kibera slum community in urban Nairobi, and identifies why attempts to title and enforce property rights there have been bypassed. Four competing enforcement regimes (state courts, NGOs, bureaucratic entrepreneurs, and gangs) are identified within Kibera, and their effectiveness with regard to social welfare is evaluated.
KAREN TOKARZ and V. NAGARAJ
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780195381146
- eISBN:
- 9780199869305
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195381146.003.0017
- Subject:
- Law, Public International Law
Alternative dispute resolution (ADR) and clinical legal education share overlapping goals of advancing social justice. This chapter examines the impact that the integration of ADR into the clinical ...
More
Alternative dispute resolution (ADR) and clinical legal education share overlapping goals of advancing social justice. This chapter examines the impact that the integration of ADR into the clinical curriculum has had or might have in law schools in India, South Africa, and the United States. Many legal educators in these countries believe that teaching and practicing ADR in clinical courses is crucial to the development of a social justice consciousness in law students and to the preparation of competent and ethical law graduates. The chapter asserts that clinical programs that teach and practice ADR can inform, improve, and reform not only legal education, but also—over time—the practice of law and the legal profession as well, thereby furthering the social justice goals of the global clinical movement.Less
Alternative dispute resolution (ADR) and clinical legal education share overlapping goals of advancing social justice. This chapter examines the impact that the integration of ADR into the clinical curriculum has had or might have in law schools in India, South Africa, and the United States. Many legal educators in these countries believe that teaching and practicing ADR in clinical courses is crucial to the development of a social justice consciousness in law students and to the preparation of competent and ethical law graduates. The chapter asserts that clinical programs that teach and practice ADR can inform, improve, and reform not only legal education, but also—over time—the practice of law and the legal profession as well, thereby furthering the social justice goals of the global clinical movement.
Harald Baum
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199653485
- eISBN:
- 9780191758270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653485.003.0020
- Subject:
- Law, Comparative Law, Private International Law
The chapter provides an up-to-date, comprehensive analysis of out-of-court dispute resolution in Japan. The country is well known for its persistent lack of litigation when compared with most Western ...
More
The chapter provides an up-to-date, comprehensive analysis of out-of-court dispute resolution in Japan. The country is well known for its persistent lack of litigation when compared with most Western OECD countries. As shown, the widely perceived traditional preference for out-of-court dispute resolution in Japan can be traced to various, mostly institutional (intentionally insufficient access to courts and attorneys), causes and only to a lesser degree to cultural reasons. A historical overview shows the pertinent developments. Today Japan practices two distinctly different forms of out-of-court dispute resolution: court-annexed conciliation and extrajudicial mediation. The chapter offers the first in-depth English analysis of the legal underpinnings and practical effects of both forms.Less
The chapter provides an up-to-date, comprehensive analysis of out-of-court dispute resolution in Japan. The country is well known for its persistent lack of litigation when compared with most Western OECD countries. As shown, the widely perceived traditional preference for out-of-court dispute resolution in Japan can be traced to various, mostly institutional (intentionally insufficient access to courts and attorneys), causes and only to a lesser degree to cultural reasons. A historical overview shows the pertinent developments. Today Japan practices two distinctly different forms of out-of-court dispute resolution: court-annexed conciliation and extrajudicial mediation. The chapter offers the first in-depth English analysis of the legal underpinnings and practical effects of both forms.
J. H. H. Weiler (ed.)
- Published in print:
- 2001
- Published Online:
- January 2010
- ISBN:
- 9780199248124
- eISBN:
- 9780191714863
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199248124.001.0001
- Subject:
- Law, EU Law
The starting point of this book is the coexistence of the overlapping regimes of the World Trade Organisation (WTO), the European Union (EU), and the North American Free Trade Agreement (NAFTA). On ...
More
The starting point of this book is the coexistence of the overlapping regimes of the World Trade Organisation (WTO), the European Union (EU), and the North American Free Trade Agreement (NAFTA). On this basis, it explores the emergence of a nascent common law of international trade. This exploration is rooted in three phenomena: Firstly, the fact that the very same regulatory measure may come simultaneously within the jurisdictional reach of more than one trade regime and may even be adjudicated simultaneously. Some regimes offer alternatives. The NAFTA, for example, offers the General Agreement on Tariffs and Trade (GATT) dispute resolution as an option for many of its own disputes. Second is the convergence in the material law of the disparate international trade regimes. This, of course, is the heart of the emergent Common Law. Third is the strengthening of private parties in all regimes. Once a preserve of the EU, the NAFTA allows private party dispute resolution of different types in relation to various matters and in the case of the WTO, although it is still an intergovernmental preserve, private actors are learning to manipulate the system. This volume, built on a recent series of courses at the Academy of European Law, is a reflection of this conviction. The various contributions deal with discrete areas — in the double sense — of the international trading system but each placing considerable emphasis on the interlocking nature of the various components of that system.Less
The starting point of this book is the coexistence of the overlapping regimes of the World Trade Organisation (WTO), the European Union (EU), and the North American Free Trade Agreement (NAFTA). On this basis, it explores the emergence of a nascent common law of international trade. This exploration is rooted in three phenomena: Firstly, the fact that the very same regulatory measure may come simultaneously within the jurisdictional reach of more than one trade regime and may even be adjudicated simultaneously. Some regimes offer alternatives. The NAFTA, for example, offers the General Agreement on Tariffs and Trade (GATT) dispute resolution as an option for many of its own disputes. Second is the convergence in the material law of the disparate international trade regimes. This, of course, is the heart of the emergent Common Law. Third is the strengthening of private parties in all regimes. Once a preserve of the EU, the NAFTA allows private party dispute resolution of different types in relation to various matters and in the case of the WTO, although it is still an intergovernmental preserve, private actors are learning to manipulate the system. This volume, built on a recent series of courses at the Academy of European Law, is a reflection of this conviction. The various contributions deal with discrete areas — in the double sense — of the international trading system but each placing considerable emphasis on the interlocking nature of the various components of that system.
Rainer Kulms
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199653485
- eISBN:
- 9780191758270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653485.003.0025
- Subject:
- Law, Comparative Law, Private International Law
In the United States, federal and state laws on mediation consist of a complex body of statutes, codes of civil procedure, local rules of court and common law rules of contract. Current practice ...
More
In the United States, federal and state laws on mediation consist of a complex body of statutes, codes of civil procedure, local rules of court and common law rules of contract. Current practice strikes a balance between self-determination and court-ordered dispute settlement. As legalism crept in, California, Florida, Ohio (and, to a lesser extent, Texas) took the lead in regulating the relationship between mediation and the regular trial, incentives to mediate, confidentiality, enforcement of settlements and professional standards for mediators. This study reviews the substantive laws in leading US jurisdictions (including cost issues) and addresses specific mediation proceedings for bankruptcy and foreclosure, as well as in family, labour, criminal and administrative law. After four decades of alternative dispute resolution, the climate for mediation is changing again. Dispute resolution is shifting from the authoritative trial to alternative dispute settlement. Procedural justice has to compensate for abandoning the proverbial day in court.Less
In the United States, federal and state laws on mediation consist of a complex body of statutes, codes of civil procedure, local rules of court and common law rules of contract. Current practice strikes a balance between self-determination and court-ordered dispute settlement. As legalism crept in, California, Florida, Ohio (and, to a lesser extent, Texas) took the lead in regulating the relationship between mediation and the regular trial, incentives to mediate, confidentiality, enforcement of settlements and professional standards for mediators. This study reviews the substantive laws in leading US jurisdictions (including cost issues) and addresses specific mediation proceedings for bankruptcy and foreclosure, as well as in family, labour, criminal and administrative law. After four decades of alternative dispute resolution, the climate for mediation is changing again. Dispute resolution is shifting from the authoritative trial to alternative dispute settlement. Procedural justice has to compensate for abandoning the proverbial day in court.
Sandra F. Joireman
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199782482
- eISBN:
- 9780199897209
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199782482.003.0004
- Subject:
- Political Science, Political Theory
It has long been accepted that nongovernmental organizations have taken over the role of the government in spheres of health and education in Africa. Using field research from Uganda, this chapter ...
More
It has long been accepted that nongovernmental organizations have taken over the role of the government in spheres of health and education in Africa. Using field research from Uganda, this chapter presents examples of NGOs that have been active in the enforcement of property rights where the state has chosen not to enforce certain rights or where it is not strong enough to do so. Ideologically motivated NGOs have acted to educate lawyers, judges, and citizens and, in some extreme cases, to equip and train police so as to enable the defense of legal rights to property. The implications of this new role for NGOs in terms of local and national authority are discussed. The evidence suggests a completely different model for understanding legal NGOs from that which has been previously suggested; they neither feed into the legal process nor exist completely separate from it, but are intertwined with the state in surprising ways.Less
It has long been accepted that nongovernmental organizations have taken over the role of the government in spheres of health and education in Africa. Using field research from Uganda, this chapter presents examples of NGOs that have been active in the enforcement of property rights where the state has chosen not to enforce certain rights or where it is not strong enough to do so. Ideologically motivated NGOs have acted to educate lawyers, judges, and citizens and, in some extreme cases, to equip and train police so as to enable the defense of legal rights to property. The implications of this new role for NGOs in terms of local and national authority are discussed. The evidence suggests a completely different model for understanding legal NGOs from that which has been previously suggested; they neither feed into the legal process nor exist completely separate from it, but are intertwined with the state in surprising ways.
Torsten Bettinger and Allegra Waddell
- Published in print:
- 2015
- Published Online:
- March 2021
- ISBN:
- 9780199663163
- eISBN:
- 9780191932748
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780199663163.003.0046
- Subject:
- Law, Intellectual Property, IT, and Media Law
As worldwide use of the Internet has expanded, the importance of domain name selection and use has increased exponentially for brand owners and professional domain name registrants alike. The terms ...
More
As worldwide use of the Internet has expanded, the importance of domain name selection and use has increased exponentially for brand owners and professional domain name registrants alike. The terms ‘cybersquatting’ and ‘pay-per-click advertising’ have become commonplace in the everyday vernacular. Although domain name law is, in many respects, similar to more traditional trademark and intellectual property law, many countries are still developing practices for handling disputes over Internet space. Given the international impact of domain name use, and the myriad jurisdictional problems concerning both venue and enforcement of judgments, domain name disputes present a number of challenges to nationally-based court systems. Domain name registration generally follows a ‘first-come, first-served’ model, thus potentially leaving trademark owners open to abusive registrations on behalf of cybersquatters and in some cases putting a company in the difficult position of paying ‘ransom’ to a domain name holder who registered the company’s trademark or brand in a domain.
Less
As worldwide use of the Internet has expanded, the importance of domain name selection and use has increased exponentially for brand owners and professional domain name registrants alike. The terms ‘cybersquatting’ and ‘pay-per-click advertising’ have become commonplace in the everyday vernacular. Although domain name law is, in many respects, similar to more traditional trademark and intellectual property law, many countries are still developing practices for handling disputes over Internet space. Given the international impact of domain name use, and the myriad jurisdictional problems concerning both venue and enforcement of judgments, domain name disputes present a number of challenges to nationally-based court systems. Domain name registration generally follows a ‘first-come, first-served’ model, thus potentially leaving trademark owners open to abusive registrations on behalf of cybersquatters and in some cases putting a company in the difficult position of paying ‘ransom’ to a domain name holder who registered the company’s trademark or brand in a domain.
Benjamin Kelly
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199599615
- eISBN:
- 9780191731525
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199599615.001.0001
- Subject:
- Classical Studies, European History: BCE to 500CE
This book examines the contribution that petitioning and litigation made to the maintenance of the social order in Roman Egypt (30 BC-AD 284). It does this by exploiting the many hundreds of legal ...
More
This book examines the contribution that petitioning and litigation made to the maintenance of the social order in Roman Egypt (30 BC-AD 284). It does this by exploiting the many hundreds of legal documents surviving on papyrus, especially petitions, reports of court proceedings, and letters. The book focuses partly on how the legal system achieved its formal goals (that is, the resolution of disputes through judgments). But it also looks in detail at the contribution made by petitioning and litigation to informal methods of social control, with particular emphasis on the roles that these processes played in the transmission of political ideologies, the maintenance of group solidarity, and the fostering of ‘private’ mechanisms of dispute resolution. The book argues that although the legal system was less than successful when judged by its formal aims, it did have a real social impact by indirectly contributing to some of the informal mechanisms that ensured order. However, the book also argues that one can see petitioning and litigation being abused sometimes for the pursuit of hatreds, feuds, and vengeance. It must be recognized, therefore, that the social impacts of petitioning and litigation were multifaceted, and in some senses even contradictory.Less
This book examines the contribution that petitioning and litigation made to the maintenance of the social order in Roman Egypt (30 BC-AD 284). It does this by exploiting the many hundreds of legal documents surviving on papyrus, especially petitions, reports of court proceedings, and letters. The book focuses partly on how the legal system achieved its formal goals (that is, the resolution of disputes through judgments). But it also looks in detail at the contribution made by petitioning and litigation to informal methods of social control, with particular emphasis on the roles that these processes played in the transmission of political ideologies, the maintenance of group solidarity, and the fostering of ‘private’ mechanisms of dispute resolution. The book argues that although the legal system was less than successful when judged by its formal aims, it did have a real social impact by indirectly contributing to some of the informal mechanisms that ensured order. However, the book also argues that one can see petitioning and litigation being abused sometimes for the pursuit of hatreds, feuds, and vengeance. It must be recognized, therefore, that the social impacts of petitioning and litigation were multifaceted, and in some senses even contradictory.
R. U. S Prasad
- Published in print:
- 2010
- Published Online:
- October 2012
- ISBN:
- 9780198066453
- eISBN:
- 9780199081271
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198066453.001.0001
- Subject:
- Law, Competition Law
Resolving Disputes in Telecommunications: Global Practices and Challenges not only introduces the concept of dispute resolution, but also stresses the urgent need to revise the various ...
More
Resolving Disputes in Telecommunications: Global Practices and Challenges not only introduces the concept of dispute resolution, but also stresses the urgent need to revise the various laws in telecommunication. This book is composed of eight chapters, each of which addresses a particular topic on dispute resolution and the telecom sector. Chapter 1 serves as an introduction to the present situation of telecommunications, while Chapter 2 examines the theoretical background of dispute resolutions. Chapter 3 presents the various methods of dispute resolution that are being used today, including the Alternative Dispute Resolution (ADR) methods. Chapter 4 then looks at some countries and the methods they use for dispute resolution and dispute management. Chapters 5 and 6 are concentrated on the policy and regulatory initiatives and considerations, while a thorough assessment of the dispute resolution mechanisms is provided in Chapter 7. The last chapter in the book looks at some suggestions for dispute resolution mechanisms.Less
Resolving Disputes in Telecommunications: Global Practices and Challenges not only introduces the concept of dispute resolution, but also stresses the urgent need to revise the various laws in telecommunication. This book is composed of eight chapters, each of which addresses a particular topic on dispute resolution and the telecom sector. Chapter 1 serves as an introduction to the present situation of telecommunications, while Chapter 2 examines the theoretical background of dispute resolutions. Chapter 3 presents the various methods of dispute resolution that are being used today, including the Alternative Dispute Resolution (ADR) methods. Chapter 4 then looks at some countries and the methods they use for dispute resolution and dispute management. Chapters 5 and 6 are concentrated on the policy and regulatory initiatives and considerations, while a thorough assessment of the dispute resolution mechanisms is provided in Chapter 7. The last chapter in the book looks at some suggestions for dispute resolution mechanisms.
Knut B. Pissler
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199653485
- eISBN:
- 9780191758270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653485.003.0019
- Subject:
- Law, Comparative Law, Private International Law
Resolution in the form of mediation has a long tradition in China. On the one hand, the importance of mediation can be traced back to the philosophy of Confucianism. On the other hand, extra-judicial ...
More
Resolution in the form of mediation has a long tradition in China. On the one hand, the importance of mediation can be traced back to the philosophy of Confucianism. On the other hand, extra-judicial mediation gained in acceptance in China because of the socialist approach to involve the populace more directly in the solution of conflicts, thereby having an educative effect on the people. In recent years, top political-legal authorities of the Chinese Communist Party have been promoting mediation as the key to resolving all disputes and linking it to the Chinese Communist Party's new ‘harmonious society’ political doctrine. Regardless of problems in the quality of mediators and the mediation procedure, mediation, and especially mediation by the Peoples’ Mediation Committees, is considered to be a very successful dispute resolution mechanism in China. However, with the new emphasis on mediation and the consequent marginalisation of the Chinese judiciary for the sake of social stability, there is a danger of a retreat from the ‘rule of law’.Less
Resolution in the form of mediation has a long tradition in China. On the one hand, the importance of mediation can be traced back to the philosophy of Confucianism. On the other hand, extra-judicial mediation gained in acceptance in China because of the socialist approach to involve the populace more directly in the solution of conflicts, thereby having an educative effect on the people. In recent years, top political-legal authorities of the Chinese Communist Party have been promoting mediation as the key to resolving all disputes and linking it to the Chinese Communist Party's new ‘harmonious society’ political doctrine. Regardless of problems in the quality of mediators and the mediation procedure, mediation, and especially mediation by the Peoples’ Mediation Committees, is considered to be a very successful dispute resolution mechanism in China. However, with the new emphasis on mediation and the consequent marginalisation of the Chinese judiciary for the sake of social stability, there is a danger of a retreat from the ‘rule of law’.
Heyo Berg
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199653485
- eISBN:
- 9780191758270
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199653485.003.0021
- Subject:
- Law, Comparative Law, Private International Law
In New Zealand, alternative dispute resolution (ADR) is an important integral part of the judicial system. There is no general mediation statute, but mediation provisions have been incorporated into ...
More
In New Zealand, alternative dispute resolution (ADR) is an important integral part of the judicial system. There is no general mediation statute, but mediation provisions have been incorporated into more than 60 statutes. Some statutory mediation rules are rudimentary; others contain a detailed procedural framework for mediation, such as in areas like family, employment relations and tenancy law. Conflicts in a vast variety of matters can be referred to mediation by the ordinary courts or diverse tribunals empowered with court like functions. Access to state-managed mediation services is simple and inexpensive. Some acts require the parties to take part in mandatory settlement procedures before they are permitted to commence adversarial proceedings. Mediation services are rendered by public institutions in areas such as employment and tenancy disputes, by judge-led mediation conferences in family disputes or by private mediators. Private mediators are organised into several professional organisations that accredit mediators and arbitrators by their own standards.Less
In New Zealand, alternative dispute resolution (ADR) is an important integral part of the judicial system. There is no general mediation statute, but mediation provisions have been incorporated into more than 60 statutes. Some statutory mediation rules are rudimentary; others contain a detailed procedural framework for mediation, such as in areas like family, employment relations and tenancy law. Conflicts in a vast variety of matters can be referred to mediation by the ordinary courts or diverse tribunals empowered with court like functions. Access to state-managed mediation services is simple and inexpensive. Some acts require the parties to take part in mandatory settlement procedures before they are permitted to commence adversarial proceedings. Mediation services are rendered by public institutions in areas such as employment and tenancy disputes, by judge-led mediation conferences in family disputes or by private mediators. Private mediators are organised into several professional organisations that accredit mediators and arbitrators by their own standards.
Margaret Ross
- Published in print:
- 2010
- Published Online:
- May 2015
- ISBN:
- 9781845861018
- eISBN:
- 9781474406239
- Item type:
- chapter
- Publisher:
- Edinburgh University Press
- DOI:
- 10.3366/edinburgh/9781845861018.003.0018
- Subject:
- Law, Constitutional and Administrative Law
This chapter notes that the nature and culture of the oil and gas industry have produced particular solutions in relation to dispute management and resolution. For example, the fact that delays are ...
More
This chapter notes that the nature and culture of the oil and gas industry have produced particular solutions in relation to dispute management and resolution. For example, the fact that delays are often extremely expensive means dispute resolution processes must be fast and efficient, while the fact that parties to disputes are usually “repeat players” rather than “one shotters” means that there is frequently a reluctance to litigate and a preference for private and flexible alternatives. The chapter considers the spectrum of responses to disputes under four headings: unilateral action; collaboration and negotiation; assisted consensual non-binding processes; and adjudication and beyond. It notes that while historically the industry has been in the vanguard as regards its willingness to explore alternative methods of dispute resolution, there is now a risk that it may be unduly tied to tried and tested approaches while the range of options has actually increased. Equally, the traditional reluctance to litigate may be being tempered as the UKCS matures and new players worry less about long-term relationships and more about enforceable remedies.Less
This chapter notes that the nature and culture of the oil and gas industry have produced particular solutions in relation to dispute management and resolution. For example, the fact that delays are often extremely expensive means dispute resolution processes must be fast and efficient, while the fact that parties to disputes are usually “repeat players” rather than “one shotters” means that there is frequently a reluctance to litigate and a preference for private and flexible alternatives. The chapter considers the spectrum of responses to disputes under four headings: unilateral action; collaboration and negotiation; assisted consensual non-binding processes; and adjudication and beyond. It notes that while historically the industry has been in the vanguard as regards its willingness to explore alternative methods of dispute resolution, there is now a risk that it may be unduly tied to tried and tested approaches while the range of options has actually increased. Equally, the traditional reluctance to litigate may be being tempered as the UKCS matures and new players worry less about long-term relationships and more about enforceable remedies.
