REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION最新文献

{"title":"Arbitration Agreement in the Digital Environment: Issues of Written Form and Expression of Consent of the Parties","authors":"Valeriy N. Lisitsa","doi":"10.52028/rbadr.v5i10.art17.ru","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art17.ru","url":null,"abstract":"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) with respect to concluding arbitration agreements in writing with the use of informational technologies. It is argued that such a use is admissible as a whole and it is necessary 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. Particular attention is paid to the specifics of the conclusion and performance of arbitration agreements in investment disputes with the participation of host states related to their consent given in international investment treaties and national legislation, as well as the application of the most favored nation treatment in jurisdictional issues.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":"5 8","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138609643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Institute of Mediation under the Perspective of law Comparated - Brazil x China and the Contributions and Differentiations of the Chinese Brazilian Model","authors":"Bianca Oliveira de Farias, Daniele Anjos Souza Alexandre, Mayara Tonett Galiassi Scheid Weirich","doi":"10.52028/rbadr.v5i10.art05.br","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art05.br","url":null,"abstract":"This article aims at a comparative study of self-composition institutes in Brazil and China about conflict resolution methods and to point out the points that inspired Western cultures. As a specific objective, it intends to analyze which issues of inspiration from Chinese law to Brazilian law and what differs in our order for conflict resolution. The justification lies in the influence of Chinese law on Western cultures and, in turn, on Brazilian legal institutes regarding methods of conflict resolution. For that, a qualitative methodology was used, eminently comparative, through bibliographical research and analytical study of the available and current literature on the subject, in line with the most solid doctrinal positions possible, within a logical and reasoned perspective. For this reason, this research seeks to answer the following questions: What can the Chinese law model teach the Brazilian law model? Are the Brazilian legislation and society prepared for this change of standard? After the study, it concludes that the perspective posed by Chinese law was correlated as a basis of inspiration and counterpoint in Brazilian law, referencing and stimulating the confirmation of methods of conflict resolution. However, Brazilian law differs from Chinese law. In China, there is no obligation for a legal framework to spur dialogue between conflicting individuals, while in Brazil, a positivist country, the institute only began to be disseminated after the enactment of the correspondent legislation.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":"1 15","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138609947","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Online Dispute Resolution (ODR): mediação de conflitos online rumo à singularidade tecnológica?","authors":"Andrea Maia, Ricardo Amorim Flório","doi":"10.52028/rbadr.v5i10.art02.br","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art02.br","url":null,"abstract":"This article aims to explore the intersections among Mediation, ODR (Online Dispute Resolution) and AI systems with emphasis on the increasingly concrete possibilities of automation of the process of consensual conflict resolution, thus allowing us to consider potential future e utopian technological “singularity” (?). Therefore, by analyzing the evolution of this remote process of consensual resolution and AI technologies, it is necessary to evaluate consequences in terms of cultural, ethical aspects and mainly those involving the necessary accountability of the system.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":"153 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138615021","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Right to be heard as a part of due process of law in arbitration proceedings: current challenges and lessons for Ukraine","authors":"Kravtsov Serhii, Serheieva Alina","doi":"10.52028/rbadr.v5i10.art10.lu","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art10.lu","url":null,"abstract":"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.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":"12 4","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138623005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ADR in tax disputes in Poland – the state of play and perspectives","authors":"H. Filipczyk","doi":"10.52028/rbadr.v5i10.art09.pol","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art09.pol","url":null,"abstract":"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.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":"222 3","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138621238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Developing the Legal Regulation of Online Dispute Resolution","authors":"Munkh-Erdene Batdulam","doi":"10.52028/rbadr.v5i10.art11.nz","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art11.nz","url":null,"abstract":"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.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":" 438","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138610829","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Courtrooms to Algorithms: The Evolution of Dispute Resolution with AI","authors":"Naazish Fatima","doi":"10.52028/rbadr.v5i10.art13.in","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art13.in","url":null,"abstract":"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.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":" 12","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138612470","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Study on Resolving Disputes in Trial Courts through Online Dispute Resolution in India","authors":"Soma Dey Sarkar, Subhajit Bhattacharjee","doi":"10.52028/rbadr.v5i10.art15.ben","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art15.ben","url":null,"abstract":"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. With an overwhelmingly large population of smartphone users, which is almost 55% of the people with an average age of 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 the justice delivery system. The justice delivery system in India, with the courts being in the eye of the storm, is often harshly criticized for working at a snail’s pace, mainly due to a lack of infrastructure and judges and a burgeoning population of litigants. The last reason is substantiated by the fact that the 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 smartphones 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 a specific criminal, civil proceeding, can settle the dispute having online access to court process it will help immensely in resolving disputes and claims on time. The authors suggest measures to implement the procedure and method to address and effectively implement the online mechanism in trial courts involving all concerned and interest parties and usher a new vista in the justice delivery system.","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":" 36","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138617799","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Development of online mediation in Russia and the Republic of Kazakhstan","authors":"Nurgul A. Lukmanova, Rimma Sh. Rahmatulina","doi":"10.52028/rbadr.v5i10.art14.kz","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art14.kz","url":null,"abstract":"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","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":" 45","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138620007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal grounds and ethical conditions of alternative forms of criminal law conflict resolution in Russia","authors":"Dmitrieva Anna Aleksandrovna, Pastukhov Pavel Sysoevich, Gostkova Dinara Zholaushobaevna","doi":"10.52028/rbadr.v5i10.art06.ru","DOIUrl":"https://doi.org/10.52028/rbadr.v5i10.art06.ru","url":null,"abstract":"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","PeriodicalId":101933,"journal":{"name":"REVISTA BRASILEIRA DE ALTERNATIVE DISPUTE RESOLUTION","volume":" 22","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138611180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}