Thesis (LLM) North-West University, Mafikeng Campus, 2005

Thesis (Ph. D.)--University of Chicago, 2002. / Includes bibliographical references (leaves 254-266). Also available on the Internet.

Thesis (Ph. D.)--University of Chicago, 2002. / Includes bibliographical references (leaves 254-266).

Os órgãos que compõem o Sistema de Solução de Controvérsias da OMC possuem competência para analisar reclamações fundadas nos denominados acordos abrangidos e formular conclusões e recomendações sobre a conformidade das medidas impugnadas com os referidos acordos. Para interpretar as disposições destes acordos, estes órgãos podem recorrer às regras costumeiras de interpretação previstas na Convenção de Viena sobre o Direito dos Tratados de 1969. Estas regras de interpretação, por sua vez, permitem àqueles órgãos recorrer a espécies normativas produzidas fora do contexto da OMC como subsídios para esclarecer o sentido dos termos das disposições dos acordos abrangidos. Ao se valer destas espécies normativas, os referidos órgãos estarão também, inevitavelmente, interpretando as disposições destes. Nesse contexto, esta pesquisa teve por objetivo analisar de que forma as espécies normativas tradicionais de Direito Internacional do Meio Ambiente (convenções, costumes e princípios gerais de direito) foram interpretadas pelos órgãos do OSC em três casos escolhidos para representar o problema. Os resultados da análise dos casos demonstraram que espécies normativas do Direito Internacional do Meio Ambiente são efetivamente admitidas no processo interpretativo dos acordos abrangidos, o que pode se dar de forma vinculante ou não, bem como podem influenciar efetivamente na interpretação destes acordos, confirmando-lhes o significado ou lhes atribuindo um significado não explícito, embora as conclusões desta interpretação nem sempre resultem em posicionamentos totalmente favoráveis às medidas unilaterais adotadas pelos Membros da OMC a título de preocupação ambiental. / The organs that make up the dispute settlement system of the WTO have power to examine complaints founded in so-called covered agreements and formulate conclusions and recommendations on the compliance of the contested measures with the agreements. To interpret the provisions of these agreements, these organs may make use of interpretation customary rules of the Vienna Convention on the Law of Treaties of 1969. These rules of interpretation, in turn, allow those organs resort to normative species produced outside the context of WTO as subsidies to clarify the meaning of the terms of the provisions of the covered agreements. By borrowing these normative species, those bodies will also inevitably interpreting the provisions of these. In this context, this study aimed to examine how traditional normative species of International Law of the Environment (conventions, customs and general principles of law) were interpreted by the DSB organs in three cases chosen to represent the problem. The case analysis results showed that normative species of International Law of the Environment are effectively admitted in the interpretive process of the covered agreements, which can occur in binding or not, and can effectively influence the interpretation of these agreements, confirming them the meaning or assigning them a no explicit meaning, although the conclusions of this interpretation does not always result in favorable positions to fully unilateral measures adopted by WTO Members in respect of environmental concern.

Magister Legum - LLM / This research examines the effectiveness of these dispute resolution mechanisms in environmental disputes and what improvements should be made in order to make those mechanisms suitable for these types of disputes. / South Africa

Mediation has been regarded as one of the effective dispute resolving techniques. However, the issues pertaining to the development of mediation have been overlooked and are therefore less well known. There has been limited discussion about mediation and some of the theoretical explanations about its development in the construction industry were not well investigated or documented. The main purpose of this research was to investigate the development of mediation by focusing on investigating the barriers which impede the use of mediation in resolving construction industry disputes in the UK. Gaps in the literature were identified in the research but no hypothesis was generated. The interpretive research model was an ideal paradigm for this research as it assisted in structuring the whole process of the investigation. A grounded theory strategy was adopted as it helped to capture the overall mediation phenomenon in a construction environment. Semi-structured interviews, with sixteen leading mediators from around the UK, were used for this study. The interviews were recorded and transcribed. The interview transcripts were analysed using grounded theory analysis, through manual coding techniques. From the findings, two categories of barriers were identified: barriers arising from the public (lack of social awareness, disputatious culture, process barrier, insufficient planning, security and the introduction of adjudication) and barriers caused by the disputants’ legal advisors (ignorance, personal agendas and the conventional method of resolution). The study also explores some information on the mediation system such as financial issue was the main dispute in construction industry; facilitative mediation is the most appropriate mediation process and in appointing the mediator, excellence in mediating skills is more important than his or her professional background; also it is inappropriate/ counterproductive to impose mandatory mediation on construction disputes. The limited amount of literature dealing with mediation in the UK construction industry is one of the limitations of the research, as it complicated the process of designing the interview questions. Some potential sources of bias for the research are identified through the areas of data presentation and data interpretation. This research has provided theoretical and practical contributions to mediation development within the context of the UK’s construction industry. Further research is suggested to validate the research findings and to evaluate the quality of the mediation process, based on the gender and professional background of the mediator.

The dynamic social and economic conditions in Namibia warranted a periodic review of labour legislation. Given these needs, uhe then Ministry of Labour, undertook a project in 1998, to assess the effectiveness of the first post kndependence Labour Act, 1992 (Act No 6 of 1992) a trirartite task force was established which recommended the amendment of the 1992 Act. This led to the enactment of the Labour Act, 2004 which introduced a new system of dispute prevention and resolution. However, the 2004 Act could not be put into effect in its entirety, because of its technical flaws and the fact that the Namibian Employers Federation (NEF) took issue with some of the provisions of the Act, such as leave provisions. In 2005, the Ministry of Labour and Social Welfare with its social partners undertook a complete technical review of the entire 2004 Act. As a result, In 2007, the new Labour Bill 2007 was tabled in Parliament, which eventually adopted it as the Labour Act, 2007 (Act No 11 of 2007) which became operational on the 1st November 2008. The new Labour Act, 2007 (Act No 11 of 2007) brings in sweeping changes to the familiar terrain of labour law and industrial relations practice in Namibia. The new Act, has done aware with the District Labour Court system, in its place comes the Labour Commissioner. The rudimentary dispute- settlement mechanisms of the old (first ) Labour Act, 1992 ( Act No 6 of 1992) have made way for the more sophisticated, yet speedier and more economical system of alternative dispute resolution through arbitration and conciliation by the Labour Commissioner. The Labour Act, 2007, requires parties to the labour dispute to seek conciliation before either taking industrial action or seeking adjudicative solutions to the dispute. Not only does the Labour Act, establish or makes provision for the appointment of the Labour Commissioner to provide for dispute resolution, it also permits parties to establish their own process for dispute resolution through a private arbitration route. Faced with this daunting array of untested rules and institutions, I have approached the writing of this work with some trepidation. My aim is to provide a thoroughgoing commentary on the provisions relating to dispute resolution. In the absence of much authoritative interpretation, I had to rely heavily on past practices and foreign South African precedents to identify the construction that judges and arbitrators are likely to arrive at. The present treatise provides a, comprehensive and integrated commentary for all involvement in the resolution of labour disputes in Namibia; it further provides rules and procedures which govern statutory disputes resolution through the Labour Commissioner. I sincerely hope that this paper, will prove useful to all those involved in labour law and industrial relations practice, as well as to teachers and students of this subject.

The thesis deals with the consumer dispute and ways how to resolve it. The main aim of this thesis is to analyze and evaluate if disadvantages of court proceeding in the Czech republic still overweight its advantages, and thus whether the topic of alternative disputes resolution of consumer disputes is actual, then to give an overview and evaluation of alternative disputes resolution for consumer dispute which the Czech republic offers in the context of Community Law of the European Union, and finally to outline the development of future initiatives in this area.

The purpose of this thesis is to critically examine elements of public participation in environmental decision-making and to propose that public participation processes may be made more meaningful through the provision of comprehensive and flexible procedural mechanisms coupled with a true ability to affect the outcome of the process, rather than through simply granting more rights. Over the years, natural resources management has grown as a response to ecological concerns over the state and future of our environment. The law too, has developed to accommodate environmental concerns and define legal rights and procedures. Public participation becomes a vehicle for ensuring that affected interests are taken into account in environmental decision-making. In Chapter 1, the established and traditional means of involving the public in environmental decision-making such as litigation and public hearings are examined; however, they have been characterized as too restrictive, not only in terms of the parties who are included, but also the issues. Furthermore, agency administration of complex resource management issues has fuelled public discontent, as many groups understand it is an inherently political process and doubt its legitimacy. In exploring this phenomenon, this paper is first placed in a theoretical context, drawing upon ecological, legal, and ethical philosophies. However, it is also informed by the perspectives of local environmental groups and residents. The turn to other techniques, or Alternative Dispute Resolution, may seem a logical and appropriate evolution, suggesting ways for all affected parties to be involved. Chapter 2 reviews different forms of Alternative Dispute Resolution which provide some principles about the use of mediation and agreements to supplement the regulatory processes of resource management. It is important to consider the mediation process itself, the desire to remedy what is considered to be the failings of the traditional adversarial system, the psychological dynamics of the process, and the parameters for successful negotiations leading to implementation. Chapter 3 commences with an analysis of the legal context of public participation in British Columbia. It determines the discretionary authority of the administrative agencies, and the formal window of opportunity for public input, under the (federal) Canadian Environmental Assessment Act and the (provincial) British Columbia Environmental Assessment Act. This chapter also discusses an additional and interesting vehicle for public participation, although not yet implemented in British Columbia - the Environmental Bill of Rights. Chapter 4 provides a more concrete setting for the use of public participation processes, through the use of a case study - the British Columbia Transit Sky Train Extension Project. The "NIMBY", or "Not In My Backyard" scenario involved has the potential to facilitate negotiation; however, real inroads will be made through improving existing legal avenues of participation such as consultation. In fact, this key concern has been the sore point with respect to the Sky Train Project for many residents of Vancouver. In conclusion, the utility of public participation processes expressed in environmental legislation is reliant not only upon the ability of the law to be flexible enough to serve the various natural resource interests of all stakeholders, but also to be conducted in a manner that is inclusory and substantive. / Law, Peter A. Allard School of / Graduate

This study undertook a critical examination of developing countries’ experiences of infrastructure-related construction dispute resolution using Ghana as a case study. It investigated the dispute resolution processes and procedures which parties to infrastructure construction disputes employed to address such disputes. To gain a better understanding of the dispute resolution processes, the study also assessed the legal framework for procurement and contract formation and other contextual issues which influenced parties’ dispute resolution choices. Consequently, strategies for efficient and effective dispute resolution were developed. The main rationale for the study was the need for effective and efficient dispute resolution processes in the context of infrastructure projects in developing countries. The literature indicated that disputes often occurred on such projects in developing countries that were resolved at great cost mainly by arbitral tribunals in the developed world. However, there was limited information on the extent to which other dispute resolution mechanisms were utilised prior to resort to international arbitration. The study adopted a qualitative research approach informed by the interpretivist philosophical paradigm. Data was collected from fifty-six interviewees from the State as the Employer and foreign contractors through semi-structured interviews and documents and analysed using qualitative data analysis procedures associated with grounded theory research such as coding, constant comparison, memoing and diagramming, and doctrinal legal analysis. It was found that engineer’s determination, negotiation and international arbitration were the most used dispute resolution mechanisms. Others such as mediation were rarely used. The dispute resolution processes were characterised by high cost, low satisfaction with outcomes and negative effect on relationships. It was also found that the extant dispute resolution processes were the product of the nature of the parties, the context in which they operated and their responses to the context. Factors such as lack of coordination among the Employer’s sub-units, human resource constraints and political interference had varying negative impacts on dispute occurrence, dispute resolution system design and the dispute resolution processes. To deal with these challenges and achieve efficient and effective dispute resolution processes, four sets of remedial strategies (condensed into a model called the Dispute Resolution Efficiency Cycle (DREC)) were proposed. The study has provided empirical evidence which has addressed some of the gaps identified in the literature on issues such as absence of information on pre-international arbitration dispute processes. The study has also highlighted the impact of context and dispute system design on dispute resolution. Contributions to practice included diagnosing challenges with the extant dispute resolution processes and proposing possible remedial strategies.