Thesis (M. Phil.)--University of Hong Kong, 2005. / Title proper from title frame. Also available in printed format.

Different dispute resolution mechanisms, including treaties, litigation, negotiation and, to a lesser extent, mediation and arbitration, have been employed to resolve land disputes in Canada over the centuries. Since 1973, the federal government has unilaterally developed and reviewed land claims policies which favour negotiation to resolve land claims between governments and First Nations, Further, two regional institutions were created in Ontario and British Columbia to facilitate the resolution of these complex claims. Various processes have also been used to resolve similar claims in New Zealand and Australia. The problems associated with the present land claims processes in Canada have been discussed for more than twenty years. The purpose of this thesis is to analyze the appropriateness of the various dispute resolution processes which are, or could be, employed to resolve the land question in Canada. The search for dispute resolution mechanisms suitable to resolve land claims is undertaken in light of the two basic characteristics of the relationship of the parties to these disputes: the cultural differences, and the imbalance of power between the parties. The first chapter of my thesis examines the history of land claims policies and processes in Canada, discusses the historical relationship between Aboriginal peoples and governments, and explores the main assumptions, premises, values and beliefs held by the parties involved in Aboriginal disputes, and the dynamics of their relationship. The following three chapters discuss specific dispute resolution processes which have been employed to resolve the land question in Canada. At the end of each of these chapters, suggestions are made to improve these various processes. Chapter Two analyzes the advantages and disadvantages of litigation in the context of Aboriginal land cases. Chapter Three examines the process of negotiation, with a focus on the federal government’s policies on land claims. Chapter Four discusses the processes of mediation and arbitration, and considers the appropriateness of these mechanisms to resolve land claims in Canada. Chapter Five provides a comparative look at three institutions which have been created to resolve Aboriginal claims in New Zealand, Australia and Canada: the Waitangi Tribunal of New Zealand; the National Native Title Tribunal of Australia; and the British Columbia Treaty Commission. Finally, Chapter Six identifies the essential elements which must be present for dispute resolution mechanisms to be successful in the Aboriginal land claims context and integrates these basic principles into a general model of dispute resolution for Canada. In the course of my research, I have examined literature dealing with alternative dispute resolution (ADR), the resolution of Aboriginal claims, and on Aboriginal law generally. Throughout this thesis, I have used different methods of research and analysis. The critical approach is used to question the self-professed legitimacy and fairness of some dispute resolution processes, as well as to examine the theoretical underpinnings of various processes for cultural biases. The comparative method is helpful in analyzing different institutions that have been created in Australia, New Zealand and British Columbia to resolve Aboriginal claims. Finally, considering that the field of dispute resolution is informed by a wide variety of disciplines, the interdisciplinary approach is used to present different propositions concerning which dispute resolution mechanisms are the most appropriate to resolve Aboriginal land claims based on anthropological, historical, sociological and political variables. One of the difficulties in trying to find appropriate dispute resolution mechanisms to deal with Aboriginal land claims is to accommodate the diversity of the approximately 633 First Nations in Canada. Another difficulty relates to the fact that most of the ADR literature rarely addresses the issue of cultural differences. This thesis concludes that the various dispute resolution mechanisms studied have both advantages and disadvantages for resolving the land question in Canada. I suggest that each mechanism has a role to play in the overall process of resolving Aboriginal land claims as long as it accommodates the cultural diversity and ensures that all concerned have a voice in designing the process(es) employed to resolve land disputes. This thesis also recommends the creation of an independent land claims body which would provide the benefits of third-party intervention while avoiding the deficiencies of the present judicial system. Objectives would be to reduce costs, expedite procedures, permit flexibility in the handling of polycentric problems, maximize the involvement of the parties in the process and outcome, and facilitate the production of a settlement which contributes to future harmonious relationships between Aboriginal and non-Aboriginal society. The most important element remains that discussions about possible changes to the existing processes should occur between governments in partnership with the First Nations of Canada, and in consultation with non-Aboriginal interests. / Law, Peter A. Allard School of / Graduate

<p> Sceptical passages in Hume's writings tend to lead readers to assume that he opposes theories of evidence and methods for judging the truth and falsehood of our knowledge claims. But interpretations such as this overlook passages where Hume insists that we have methods of judging the truth of our claims about a priori relations of ideas and matters of fact and real existence. My intention is to make sense of these passages, taking them literally, and thereby avoiding both the sceptical and sceptically based naturalistic interpretations. I do not oppose the view that Hume is sceptical about metaphysical claims, such as our knowledge of the existence of impression-causing objects, but I argue that he is not sceptical of scientific claims in the sense that we have no reasonable basis for judging their truth or falsehood. The point is made by formulating Hume's theory of scientific judgement.</p> <p> The focus of this interpretation is on Hume's conception of philosophical relations, which provides the basis for predication and judgement. Predication arises by the comparison of ideas; a priori judgement is the "agreement or disagreement" of an idea with other ideas, while empirical judgement is the correspondence of an idea with an existing object (impressicn). </p> <p> The bulk of the dissertation formulates the scope and content of each of the seven philosophical relations as they are divided into those judged a priori, those judged by an immediate sense impression, and those judged by empirical reasoning in terms of cause and effect. In each case we find that Hume is neither sceptical of our methods for judging truth, nor is any method grounded in a presuppositional "natural" belief.</p> / Thesis / Doctor of Philosophy (PhD)

The problem with which this investigation is concerned is that of developing (a) the concept of instructional claim, and (b) credible principles for instructional claim formulation and evaluation. The belief that these constructions are capable of contributing to the advancement of curricular and instructional research and practice is grounded in three major features. The first feature is that of increased precision of basic concepts and increased coherence among them. The second feature is the deliberate connecting of instructional strategies and goal-states and the connecting of instructional configurations with curricular configurations. The third feature is the introduction of fundamental logical principles as evaluative criteria and the framing of instructional plans in such a way as to be subject to empirical tests under the principles of hypothesis testing that are considered credible in the empirical sciences.

This thesis addresses risks of multiple recovery, prejudice to legitimate interests of third parties, and inadequate consideration of the applicable law in shareholder claims in investment treaty arbitration. It challenges the application by investment tribunals of two basic premises: i) that shareholders are entitled to claim for damages vis-à-vis measures against the company in which they hold shares and ii) that ‘contract claims’ are to be distinguished from ‘treaty claims’. The central argument is that the failure to recognize substantive overlaps between shareholder treaty claims and contract claims risks more than one recovery, potentially prejudices third parties, and can lead to an incomplete application of the applicable law. The foundations of standing and the cause of action in shareholder treaty claims involve two complementary ideas of independence, i.e., independence of shareholder treaty rights vis-à-vis the local company’s contractual/national law rights and independence of treaty claims vis-à-vis contract claims. However, the substance of shareholder treaty claims, defined as the state measure and particularly the losses involved, is often identical to or at least overlaps considerably with related contract/national law claims. Prevailing ideas on shareholder standing and the cause of action in international investment law have provided useful conceptual tools for jurisdictional determinations. Yet they have not allowed tribunals and the literature to fully consider the implications of shareholder indirect claims. The thesis argues, first, that investment tribunals should acknowledge substantive overlaps between contract and treaty claims. Second, shareholder claims may be inadmissible when such overlap exists and there is a risk of double recovery or prejudice to third parties. Third, the substantive coincidence of treaty and contract claims calls for an integrated approach to the applicable law, where proper weight is given not only to IIA provisions but also to general international law and the national law governing the investment.

published_or_final_version / abstract / Statistics and Actuarial Science / Master / Master of Philosophy

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RAISING CLAIMS IN INSOLVENCY PROCEEDINGS - ABSTRACT The purpose of my thesis is to analyse the process of raising, review and settlement of the claims in the bankruptcy (insolvency) proceedings pursuant to the Act No. 182/2006 Coll., on bankruptcy and means of resolution thereof (hereinafter "The Insolvency Act"). The other important aim of this thesis is to discuss important pros and cons of the contemporary Insolvency Act which has replaced the Act No. 328/1991 Coll., on bankruptcy and settlement (hereinafter "The Bankruptcy and Settlement Act"). In general, the thesis primarily describes the kinds of the claims and all legal requirements for their proper raising. The special attention is paid to the claims of the secured creditors. The end of the thesis contains the reflection of the contemporary legislation and its outlook to the future. The introduction of the thesis submits the definition of the basic terms used in the thesis and it describes the basic aim of the following chapters. The thesis is then divided into five chapters. Chapter One is further divided into two parts. Part One contains the description of the basic principles of the bankruptcy proceedings and a place of the insolvency proceedings in the legislation of the Czech Republic. Part Two concerns with the history of the bankruptcy...

This dissertation describes and interprets the effects of the significant changes to the workers compensation, industrial and related laws that occurred in the early 1990s in Western Australia. These could be characterised as motivated by a desire by the then Coalition Government to reduce access to legal representation in compensation claims, limit the potential of workers to claim damages for negligence and reduce the use of collective bargaining mechanisms to resolve industrial disputes. Arguably, the common philosophical themes were to individualise the relationship between employer and employee and to reduce the bargaining strength of workers. In general terms, these themes were presented under the guise of flexible workplace relations. Whether these outcomes were achieved is not the subject of this analysis, rather, the aim is to show that one (perhaps unintended) consequence of the legislative changes of the early 1990s was to create significant areas of overlap in various employment related laws. These areas of overlap have led to some difficulties within the various tribunals involved in the resolution of employment related disputes. Over the last decade, the issues arising from the 1990s amendments have crystallized into important principles, which are discussed in this work. The thesis of this dissertation is that an examination of the development of the industrial and workers compensation laws in Western Australia in the 1990s establishes sufficient commonality between the industrial relations and compensation systems to warrant the rationalisation of these two jurisdictions.