Brawijaya Law Journal最新文献

{"title":"Access to Justice through Legal Aid in Nigeria: An Exposition on Some Salient Features of the Legal Aid Act","authors":"A. Adebayo, Anthonia Omosefe Ugowe","doi":"10.21776/ub.blj.2019.006.02.02","DOIUrl":"https://doi.org/10.21776/ub.blj.2019.006.02.02","url":null,"abstract":"According to Black’s Law Dictionary, justice is the fair and proper administration of law.  Similarly, access to justice is the ability to make use of the courts and other relevant institutions to efficiently protect and enforce rights.  Access to justice is imperative in every society. People will access justice only if the proper situation creates.  In a bid, to remove this major barrier in accessing justice, the Legal Aid Council of Nigeria was established in 1976.   The concept of legal aid means the provision of free legal services to the indigent and underprivileged members of the society. Its importance and cannot be overemphasized particularly considering the level of illiteracy and poverty which are considered on the high side in Nigeria. Hence, in 2011, the Legal Aid Act 2011 was enacted.  The birth of the Act repealed the old Act. This article analyses 3ethe provisions of both Acts with emphasis on the innovations of the new Act to promote access to justice and concludes with recommendations. Concerning the Council, it finds that there is a need for better funding and engagement of more salaried lawyers in order to enable it to carry out its functions as the Council is grappling with the challenge of underfunding and recruitment of more hands to work towards the achievement of its set objectives, among others.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48066975","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 Realistic Theory of Law (Book Review)","authors":"S. F. Kabir","doi":"10.21776/ub.blj.2019.006.02.09","DOIUrl":"https://doi.org/10.21776/ub.blj.2019.006.02.09","url":null,"abstract":"Despite the law has been developing through the span of the history of human civilization, law has been formulated by legal thinkers, theologians, philosophers; constructed with various pretexts and objectives: for legal certainty, utility, justice and order; used to regulate social life in various forms and dimensions: customary law, religious law, state law, international law, the formulation of legal theory, to date, is still an academic debate. It is Brian Z. Tamanaha, a professor of law from America, who also entered the theoretical debate's arena through his academic works. In the contemporary legal discourse, Tamanaha is quite popular among academics and legal activists. Tamanaha is known globally due to his famous works, such as \"A General Jurisprudence of Law and Society (2001)\", which received Herbert Jacob Bookrize awards, and \"On the Rule of Law: History, Politics and Theory (2004)\", which have been translated into 6 languages. His position as an important legal thinker in the 21st century gained his legitimacy in 2013. Through a poll, which involved 300 deans and professors from various universities in America, Tamanaha was regarded as the most influential legal educator. Tamanaha is often cited by many legal thinkers in Indonesia, among others, by Satjipto Rahardjo, especially regarding Tamanaha's concept known as the mirror thesis. Through this notion, Tamanaha argues that law is only a reflection of certain ideas, values, cultures and traditions of society. Because law is always particular, referring to certain societies in particular temporal circumstances, then, legal transplantation from and/or to other communities is not realistic if not impossible. His thinking, inevitably influenced by the Anglo Saxon legal tradition that grows and practiced in his homeland America, which tends to be more dynamic and reliant on jurisprudence. On April 24, 2017, Cambridge University Press published Tamanaha's latest book entitled \"A Realistic Theory of Law\". Examining the composition of the book's contents: contained a debate regarding law's definition, the schools of law, genealogy of law, while questioning the truth and the universality of law, presumably implying that Tamanaha was constructing his own legal theory as reflected in the book's title (\"Theory of Law\"). Based on this description, the author is interested in exploring Tamanaha's legal thinking; outlining his opinions on the essence of law, through his newest book which numbered 202 pages. The first part of the book discusses three most prominent theories or legal philosophies (Jurisprudence) in various legal discourses: The School of analytical law (legal positivism), philosophical/ethical (natural law) and historical (historical schools). Throughout history, from medieval times to renaissance, the conflict between these schools of jurisprudence was reviewed through its exponents thinkers. Then, Tamanaha entered the arena using the socio-legal framework's, in order to overcome t","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44344608","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":"Role and Position of the Defendant in the Plea Agreement","authors":"Vaxhid Sadriu, A. Hajdari","doi":"10.21776/ub.blj.2019.006.02.05","DOIUrl":"https://doi.org/10.21776/ub.blj.2019.006.02.05","url":null,"abstract":"The object of this study is the plea agreement in the criminal procedure of Kosovo. The study focuses on defining the understanding of the plea agreement, specifying the role and position of defendant in the plea agreement, specifying the rights and obligations of the defendant in the plea agreement, and on the elaboration of the importance and effects of the plea agreement for the defendant and withdrawal of such agreement for the reasons that may be related to it. The results of this paper prove that the guilty plea agreement in the Kosovo courts practice has had a direct effect on mitigation the level of sentence or in some cases acquits punishment. Looking into this aspect, the biggest benefits resulted on favor of defendants with the status of cooperative witness. The contribution of this paper is theoretical and practical, since it deals with an issue almost untreated in Kosovo. These issues focus on legal solutions, theoretical approach, as well as operational aspects concretized in the practical activity of criminal procedure subjects. The legal, comparative, tracing and theoretical analysis methods have been helped in the preparation of this study.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-10-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43420483","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":"Digital Justice in Online Dispute Resolution: The Shifting from Traditional to the New Generation of Dispute Resolution","authors":"E. Latifah, A. Bajrektarević, M. Imanullah","doi":"10.21776/UB.BLJ.2019.006.01.02","DOIUrl":"https://doi.org/10.21776/UB.BLJ.2019.006.01.02","url":null,"abstract":"The emergence of disruptive technologies has transformed how the conflict is resolved. If Alternative Dispute Resolution (ADR) has been understood as a more efficient method of resolving dispute than through the court, then in line with the development of technologies, Online Dispute Resolution (ODR) considered as the most efficient mechanism in ADR. Through ODR, access barriers are reduced, effectiveness increases, software becomes smarter and some ADR elements are challenged. This article focuses on the shifting of dispute resolution from the traditional approach to the new generation one which called digital justice.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46694261","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":"Arbitration Mechanisms in Settlement of Maritime Disputes in Nigeria: Challenges and Prospects","authors":"E. O. Babatunde","doi":"10.21776/UB.BLJ.2019.006.01.01","DOIUrl":"https://doi.org/10.21776/UB.BLJ.2019.006.01.01","url":null,"abstract":"The maritime industry is globally recognized as one of the most economically viable industry capable of facilitating sustainable development thus, amicable settlement of maritime disputes is paramount to guarantee unhindered trade and commerce environment. Arbitration is an age-long Alternative Dispute Resolution (ADR) mechanism applied in the amicable settlement of disputes in a relaxed and semi-formal environment. It is particularly suitable for resolving commercial disputes because of the enforceability of arbitral awards as depicted by the existing international arbitral jurisprudence. Various law of the Sea tribunals such as the International Tribunal for the Law of the Sea (ITLOS) or an ad hoc panels expressly recognizes arbitration as one of the models for settlement of disputes as a suitable alternative to litigation. In Africa, as nations recover from the era of ocean blindness, maritime practice and administration is prioritized to aid economic growth. The objective of this study is to evaluate application of arbitration as an ADR mechanism for settling maritime disputes in Nigeria’s maritime practices with the aim of identifying the challenges confronting Nigerian’s involvement in maritime business, particularly as it relates to application of Arbitration to dispute settlement. It was found that there are certain loopholes in relevant laws which work hardship against local businesses in cases of maritime disputes settlement. The study suggests viable solutions based on lessons from other climes to create level playing field for parties who opt for arbitration to settle maritime related disputes.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45166109","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":"Arbitration and Other Alternative Dispute Resolution for Commercial Dispute (Reviewed from the Strengths of ADR and Decision of Arbitration)","authors":"S. Suherman","doi":"10.21776/UB.BLJ.2019.006.01.08","DOIUrl":"https://doi.org/10.21776/UB.BLJ.2019.006.01.08","url":null,"abstract":"Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method  for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award . This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45747101","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":"An Assessment of the ‘Lawfulness’ of Use of Force as Dispute Settlement Method","authors":"Mustakimur Rahman, Mohsina Hossain Tushi","doi":"10.21776/UB.BLJ.2019.006.01.03","DOIUrl":"https://doi.org/10.21776/UB.BLJ.2019.006.01.03","url":null,"abstract":"Public international law has been developing and working with international humanitarian law & international human rights law together. As it developes, international law is renovating its nature from softer to harder. Although it is a great achievement to see that international (criminal) law has the influence to deal with some particular international criminals, however, the world is still far beyond from its ambition. Sometimes states are behaving very unusual against other states and using force for various reasons. While using force against other states is prohibited under Article 2(4) of the UN Charter. Nevertheless, states can use force under Article 51 if it is necessary for self-defence and only if it is approved by the Security Council under Chapter VII of the UN Charter. However, it is a question of fact that how a state can use force(s) and how it will be legitimate under several international laws? Hague law prohibits the use of new weapons and engine in the war because it seems disproportionate and unnecessary while the UN Charter is silent about the method of using force. Hence, it seems not clear that how a ‘force’ would be measured and will pass the ‘legality’ test. The indicator, thus remain unclear and very subjective.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46179707","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 Supremacy of the Dispute Settlement Mechanism (DSM) under the World Trade Organization (WTO)","authors":"Gusti Ngurah Parikesit Widiatedja","doi":"10.21776/UB.BLJ.2019.006.01.05","DOIUrl":"https://doi.org/10.21776/UB.BLJ.2019.006.01.05","url":null,"abstract":"The existence of inequality and poverty in some countries doubted the contribution of the WTO. The overwhelming spirit of national interest through the imposition of discriminatory and protective measures has deteriorated the WTO. Given its role for enforcing trade commitments, the dispute settlement mechanism is crucial to save the future of WTO. This paper aims to analyse the existence of the dispute settlement mechanism of WTO, whether it is still supreme in upholding the vision of trade liberalization. This paper argues that the supremacy of this mechanism has ensured the future of WTO by looking at two parameters. Firstly, it has a ruled-based character with a high level of legalism. Next, by looking at the decision of the Panel and the Appellate Body, the dispute settlement mechanism has effectively controlled the overwhelming spirit of national interest. This mechanism shows its supremacy by limiting the capacity of the WTO member states to impose discriminatory and protective measures, particularly related to public morals exception and cultural concern.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46501520","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 Non-Litigation Civil Dispute Settlement Model Based on Madurese Local Wisdom to Reduce Cases Accumulation in Court","authors":"U. Hasanah, M. A. Hamzah, Indien Winarwati","doi":"10.21776/UB.BLJ.2019.006.01.09","DOIUrl":"https://doi.org/10.21776/UB.BLJ.2019.006.01.09","url":null,"abstract":"Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method  for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award. This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48886067","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 Protection for Investee Company in Venture Capital Agreement in Indonesia","authors":"S. Sihabudin","doi":"10.21776/UB.BLJ.2019.006.01.07","DOIUrl":"https://doi.org/10.21776/UB.BLJ.2019.006.01.07","url":null,"abstract":"Business and entrepreneurship are one of the fundamental and important factors in the economy of a nation. In Indonesia lending is being intensified to small and medium-sized companies that are unable to borrow capital from banks through the establishment of venture capital by the government. The existence and role of financial institutions in the form of venture capital in Indonesia is important to study, because it is a new institution that is starting to develop, which certainly has an influence on the development of the business world and legal institutions and institutions. The research method used is empirical juridical, which is qualitative by means of descriptive analysis. The results of the study are that although venture capital has not been based on clear legal aspects, in practice, venture capital activities are complemented by an agreement. Venture Capitalist has a stronger position on the investee company, while freedom of contract can only be applied well when both parties have the same position. However, venture capital tends to protect interest (capital) with special provisions, including its responsibilities. Therefore there is a need for a model and further regulation of the contents of the \"standard venture capital agreement\", especially the financing mechanism as well as its implementation instructions, so as to provide clearer, more complete and stronger implementation guidelines. A financing agreement made between a venture capital company and its partner company is based on a standard contract that requires supervision and protection to maintain balance. Measures of protection and supervision are through the basis of legislation, control carried out by the government, control carried out by judges (courts) and legal consultants and notaries.","PeriodicalId":31451,"journal":{"name":"Brawijaya Law Journal","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41557731","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}