Since the 1970s there has been a growing interest in, and utilisation of, Alternative Dispute Resolution (ADR) techniques to resolve environmental conflicts in western societies. ADR was incorporated into one of New Zealand's main environmental statutes, the Resource Management Act 1991(RMA). Under s.268 of the RMA the Environment Court (the Court) may, if the parties agree, conduct mediation in order to facilitate settlement of resource management disputes. The RMA, which has now been in operation for ten years, gives no guidance as to the way in which mediation is to be conducted. The Court has developed procedures and processes for administering and conducting mediation. This study critically evaluates the practice of Court assisted mediation of environmental disputes under the RMA. A literature review and interviews with stakeholder groups are used in this evaluation. The study shows that mediation generates benefits for the Court and participants. It also identifies limitations with the current mediation procedures and processes. These may impact the effectiveness of participants in mediation, their satisfaction with, and support for, the mediated settlement and with the environmental outcomes. The study recommends a series of guidelines be prepared on the functions and administrative procedures of the Court and on the mediation process promoted by the Court. Further research is also recommended. It is considered that these recommendations, if implemented, will enhance the process for participants, ensure more equitable and consistent environmental outcomes, in terms of present and future generations, and retain public confidence in the mediation process.

Since the 1970s there has been a growing interest in, and utilisation of, Alternative Dispute Resolution (ADR) techniques to resolve environmental conflicts in western societies. ADR was incorporated into one of New Zealand's main environmental statutes, the Resource Management Act 1991(RMA). Under s.268 of the RMA the Environment Court (the Court) may, if the parties agree, conduct mediation in order to facilitate settlement of resource management disputes. The RMA, which has now been in operation for ten years, gives no guidance as to the way in which mediation is to be conducted. The Court has developed procedures and processes for administering and conducting mediation. This study critically evaluates the practice of Court assisted mediation of environmental disputes under the RMA. A literature review and interviews with stakeholder groups are used in this evaluation. The study shows that mediation generates benefits for the Court and participants. It also identifies limitations with the current mediation procedures and processes. These may impact the effectiveness of participants in mediation, their satisfaction with, and support for, the mediated settlement and with the environmental outcomes. The study recommends a series of guidelines be prepared on the functions and administrative procedures of the Court and on the mediation process promoted by the Court. Further research is also recommended. It is considered that these recommendations, if implemented, will enhance the process for participants, ensure more equitable and consistent environmental outcomes, in terms of present and future generations, and retain public confidence in the mediation process.

The system of Alternative Dispute Resolution, commonly known as ADR, comprises multiple informal processes. Traditional processes of negotiation, mediation and arbitration are primary processes within the system of ADR. The elements of the primary processes have been combined with one another or with those of public process to form hybrid ADR processes original only to the system of ADR. These hybrid processes are: rent-a-judge, the mini-trial, the summary jury trial, neutral evaluation and mediation/arbitration. Under the auspices of ADR, derivative processes have also been developed, such as expedited arbitration, documents-only arbitration, final-offer arbitration and quality arbitration. Each process is distinct and separate, having its own unique form, function and method of transforming a dispute. Outwardly, this represents a diverse collection of disjunctive processes. Yet an introspective analysis shows that there is an innate centrality that originates in core principles that bind individual processes to each other and to a unified body of theory. These foundational principles of ADR are replicated in each of its processes. In these terms, ADR is therefore conceptualised as a pluralistic system of dispute resolution that consists of autonomous and individual systems of process that conform to a central body of general theory and consensual principles. As a method of extracting the fundamental principles of ADR, the discontinuities and continuities between the theory and principles of civil procedure, as a unitary system .of procedure, and ADR processes are explored. However, in its conclusions, the thesis rejects the premises of a unitary system of procedure as forming the basis for the theory and principles of ADR. Instead, the contrary notion is advanced that ADR is an independent system of dispute resolution which is based on a theory of processual pluralism and supported by cogent processual principles. / Constitutional, International and Indigenous Law / LL.D.

Arbitration is central to the settlement of transnational commercial disputes. This dissertation discusses arbitration as an alternative method of dispute settlement as opposed to litigation. The work surveys the difficulties relating to international commercial arbitration and the enforcement of awards, and efforts made to overcome them. The research is divided into four chapters. The first chapter introduces the reader to the work. It gives a general background to international commercial arbitration and briefly explains what the dissertation is all about. Chapter two is definitional. It examines some of the definitions of international commercial arbitration and contains the author's thoughts on this issue. The author is of the view that the traditional definitions do not properly address the concept. It is concluded that the question whether an arbitration is international should largely depend on whether international norms are used to resolve the dispute rather than by reference to geographical considerations. This chapter also weighs the advantages and disadvantages of arbitration as against litigation. Chapter three deals with recognition and enforcement of awards. This is considered crucial since at the end of the day, parties to arbitration would want to enforce their awards in a court of law, in the event of non-compliance. Since the award might be made in a foreign country, enforcement may be problematic. The chapter examines efforts made in intemational and domestic law to overcome such problems and achieve enforceable awards. A selection of multi-lateral, regional and domestic laws is examined. This chapter also discusses problems of enforcing awards against states and steps taken to overcome them. The final chapter deals with general conclusion and suggestions. It is suggested that efforts should be made to harmonise international commercial arbitration. This can be achieved both in domestic and international law. / Jurisprudence / LL.M. (Jurisprudence)

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.

This thesis is an in-depth discussion and analysis of the alternative dispute resolution process of arbitration in the United States. It begins by providing a basic explanatory overview of arbitration clauses and the arbitration process. It then goes on to highlight the various benefits over traditional court litigation that arbitration has to offer. From there, the paper presents a detailed discussion of the many shortcomings of the arbitration process. It identifies the overall lack of procedural fairness that exists in arbitration today due to the fact that arbitration currently tends to favor businesses over consumers and workers during dispute settlements. The paper then identifies the various negative potential consequences that exist as a result of the unfair nature of arbitration today. This thesis concludes by presenting various ways that the arbitration process can be improved upon to make for a fairer, more neutral dispute resolution alternative.

Made available in DSpace on 2016-04-26T20:22:26Z (GMT). No. of bitstreams: 1 Kelli Priscila Angelini Neves.pdf: 14151401 bytes, checksum: 58cb3f9d0ea8aef19caf74e21ba14073 (MD5) Previous issue date: 2013-08-22 / The objective of this research, after addressing the history of the Internet and its success, was analyze the Domain Names within the requirements of civil law, their technical structure, concepts, legal nature and its environment as a legal business. Given the characterization and definition dfDomain Names, in special its distinctive legal nature, analyze the types of disputes involving Domain N ames registration and alternative means for resolving these conflicts. Since the study focused especially on registered domain names within the .br, the emergence and experience of the UDRP - Uniform Dispute Resolution Policy are analyzed in comparison to the SACI - Administrative System for Dispute Resolution of .br Internet Domain Names - (Sistema Administrativo de Conflitos de Internet para nomes de domíno no .br - In the original in Portuguese), examining not only the system rules, but also the procedures already judged until the date of completion of this work and measures that might be adopted in the post-SACI / O objetivo desta pesquisa, após abordar o histórico da lnternet e a sua consagração, foi analisar, dentro da exigência do Direito Civil, os nomes de domínios, sua estrutura técnica, conceito, natureza jurídica e seu, enquadramento como negócio jurídico. Diante da caracterização e definição dos nomes de domínios, em especial de sua natureza jurídica de signo distintivo, analisam-se também os tipos de conflitos envolvendo os nomes de domínios registrados e os meios alternativos para solução desses conflitos. Tendo o estudo focado especialmente nos nomes de domínios registrados no ".br", aborda-se, ao analisar os meios alternativos para solução de conflitos para nomes de domínios existentes, o surgimento e a experiência da UDRP ­ Uniform Dispute Resolution Policy (Política Uniforme para Resolução de Disputas), para o fim de analisar a implementação do SACI - Sistema Administrativo de Conflitos de Internet para nomes de domínios no ".br", examinando não só as regras instituídas para esse Sistema, mas também os procedimentos já julgados até a data da conclusão deste trabalho e eventuais medidas que possam ser adotadas na fase pós-SACI

The thesis examines the effectiveness of the Kenyan labour dispute resolution system by undertaking a comparative analysis of South African and international labour standards. A comparative approach is adopted, which relies on primary and secondary sources of data, thereby undertaking an in-depth content analysis. The study provides a comprehensive discussion of the current legislative provisions and alternative dispute resolution (ADR) framework as recognised in both countries' national labour legislation as well as in a number of international labour standards instruments. In particular, the study illuminates and discusses the bottlenecks in the current Kenyan system and argues that it does not adequately respond to the needs of parties in terms of the international labour conventions. The study argues further that labour disputes should be resolved as quickly and informally as possible and at the lowest level possible. Similarly, disputes should ideally be resolved with little or no procedural technicalities, and without allowing them to drag on indefinitely. However, this study observes that there have been notable concerns in the current dual system of labour dispute resolution in Kenya. The problems include protracted referral timeframe for dismissal disputes, non-regulation of maximum timeframe for the agreed extension after 30 days conciliation period has lapsed, the absence of a statutory timeframe for appointing a conciliator/commissioner and arbitration process under both the Labour Relations Act, 2007 and the Employment Act, 2007. The study argues for Kenya to incorporate provisions in its labour laws of a proactive and expeditious dispute resolution thereby helping to resolve labour disputes in the most effective and efficient manner without necessarily having to resort to the courts. Likewise, the responsibility of resolving statutory labour disputes in Kenya is still heavily under the control of the government of Kenya through the Ministry of Labour. There is still no independent statutory dispute resolution institution (Conciliation, Mediation Commission) as envisaged by the Labour Relations Act, 2007. As a result, the Kenyan dispute resolution system has been criticised for lack of impartiality leading to the increases in strikes and lockouts. Similarly, it has made the attainment of effective and efficient labour dispute resolution difficult. In view of that, a comparative approach with South Africa is adopted with a view to informing Kenya how the establishment of independent institutions similar to the Commission for Conciliation Mediation and Arbitration, Bargaining Councils and specialised labour courts can lead to effective dispute resolution in Kenya. Given above, the study provides a wide range of remedial intervention intended to address the gaps and flaws highlighted in the study. Systematically, the study provides important suggestions and possible solutions for a better institutional framework and processes to address them. However, the study acknowledges that making effective and efficient labour dispute resolution a reality calls for renewed commitment from government and social partners and investment in appropriate human and financial resources. This requires a strong political will as well as concerted efforts from all role players in the labour relations community in the two respective countries.

A indústria da construção é responsável por grande parcela da economia em todas as nações, quase sempre excedendo 10% do PIB - Produto Interno Bruto e sendo, inúmeras vezes, o setor responsável pelo maior número de empregos. Nas últimas décadas a globalização, com as suas exigências de adequação do Brasil aos padrões de competição internacionais em todas as áreas, as exigências de consumidores mais atentos, com mais liberdades e mais direitos (Código do Consumidor), a velocidade das mudanças sociais e culturais, tudo isto catalisado pela tecnologia da informação têm provocado um grande número, que não para de crescer, de disputas na construção civil. A insatisfação com os métodos tradicionais de solução dos conflitos na indústria da construção civil fez com que grande variedade de alternativas fosse e continuasse a ser explorada. A investigação das técnicas e procedimentos usados para gerenciar os conflitos, prevenir e solucionar as disputas, deles originados, nos empreendimentos de construção civil é necessária para a definição e criação de mecanismos que contribuam para seu eficaz gerenciamento, evitando a perda de tempo e dinheiro com intermináveis discussões e litígios nos tribunais. A existência de conflitos nos empreendimentos da construção é um fato e decorre diretamente da natureza das suas atividades: a singularidade de cada empreendimento, cada um deles constitui uma experiência sempre primeira e única, o tamanho e duração das obras, a complexidade dos documentos contratuais, as mudanças das condições, a limitação dos recursos, problemas financeiros, projetos inadequados, questões trabalhistas, despreparo dos gestores nestes temas. A revisão bibliográfica dos mecanismos existentes em outros países e no Brasil, comparando-os, serve de embasamento para outras pesquisas, seja na proposição de um sistema de gestão para estes conflitos e de solução para as disputas, adequado às características do Brasil, ou, ainda, na condução de um estudo de caso onde as técnicas poderão ser utilizadas e sua eficiência comprovada, ou ainda uma pesquisa para determinar as perdas provocadas por estas disputas. / The construction industry is responsible for great portion of the economy in all countries, almost always exceeding 10% of the GDP - gross domestic product and being countless times the largest employer. In the last decades the globalization, demanding Brazil adaptation to the international patterns of competition in all areas, the more attentive consumer\'s demand with more freedoms and more rights (Consumer\'s Code), and the speed of social and cultural changes, all of those, catalyzed by the information technology, have been provoking a great and growing number of disputes in the building site. The dissatisfaction with traditional methods of conflict resolution in the construction industry led to the use of a wide range of different alternatives, and new ones continue to be explored. The investigation of these new and alternative techniques and procedures used to manage conflicts, to prevent and resolve disputes in the civil construction projects is necessary for the definition and creation of mechanisms to contribute to the effective project management, avoiding waste of time and money with endless discussions and litigations in the tribunals. Because of the characteristic of their activities: the singularity of each project, each one of them is a first and only experience, the size and duration of the works, the contractual documents complexity, the variations, the resources limitation, financial problems, inadequate projects and labor subjects, the existence of conflicts in construction projects is a fact. Bibliographical revision and comparison of the techniques adopted in Brazil and other countries serves as basis for other researches, such as the proposition of a conflict management plan appropriated to Brazilian industry characteristics, or as a case study in which techniques can be used and its efficiency proven or, still as a research to determine the losses caused by these disputes.

Environmental sociology and the sociology of scientific knowledge provide a strong theoretical foundation for investigating the role of science in environmental disputes. The field of environmental dispute resolution has built a body of literature, outlining the techniques and practices that underpin the successful resolution of disputes, over controversial environmental issues. However, the literature on dispute resolution has generally neglected the role of science in environmental disputes. This thesis develops a theoretical framework based on concepts from environmental sociology and the sociology of scientific knowledge in order to critically examine the role of science in environmental disputes. In particular, this thesis combines the theory on claims-making from environmental sociology with actor-network theory and the theory on boundary-work from the sociology of scientific knowledge, to analyse the way in which science was involved in the dispute over phasing out extractive dredging from the Brisbane River. Data were collected from qualitative in-depth interviews with key players in the Brisbane River dredging dispute and combined with analysis of relevant documents and newspaper articles. Each of the components of the theoretical framework developed in this thesis contributes to an in-depth analysis of the way in which science was involved in the dredging dispute. The environmental claims-making analysis examines the way in which the claim that extractive dredging was an environmental problem for the Brisbane River was constructed and contested. The actor-network analysis compares the two competing actor-networks that were developed by one of the major concrete companies and by the anti-dredging campaigners. The boundary-work analysis examines the social construction of the science / politics border as an important site of boundary-work, before exploring other related forms of boundary-work within the case study. When combined, these theories highlight the social and political processes that underpin the inherent difficulties associated with applying science to effective environmental dispute resolution. The theoretical framework developed in this thesis highlights the way in which an analysis of environmental claims-making, actor-networks and boundary-work, extends the literature on environmental dispute resolution. This thesis therefore makes a significant contribution to the field of environmental dispute resolution, by illustrating the advantages of drawing on theoretical perspectives from environmental sociology and the sociology of scientific knowledge.