The GC21 statement that a defined meaning may be different from the meaning that the word or phrase may have in ordinary usage is a useful starting point to a discussion on terminology in disputeavoidance and disputeresolution. A fundamental difficulty would appear to be that words such as ‘conflict’, ‘dispute’ and ‘disagreement’ carry emotive meanings when used in an industry context whereas these words when used in legal context are used with precision and are devoid of emotional connotations. A similarly precise approach should also apply in academic publications, although this is does not always appear to be the case. Many authors, with the words ‘conflict’ and ‘dispute’ in the title of their paper, often do not give a specific definition of either. Several authors make the point that the terms conflict, dispute and claims are used interchangeably whereas their meanings are actually quite different [Gebken, 2006; Al-Tabtabai and Thomas, 2004, Econtech, 2007] Phrases such as “if conflict is poorly handled then it may degenerate from a simple dispute into open warfare” illustrate the looseness of the language often used. Conflict escalating into a dispute is another term which is also used. Similarly Econtech [New South Wales Department of Commerce, 2007] state that “Resolving conflicts more quickly will mean higher productivity in the building and construction industry”. This cavalier approach to terminology leads to further confusion when management techniques such as conflict management, conflict management resolution and disputeresolution are introduced.
Construction Innovation encourages the industry to carefully consider the Guide to Leading Practice for DisputeAvoidance and Resolution. It details the issues summarised and suggests strategies to reduce the likelihood of disputes occurring, as well as techniques and processes to deal with disputes more effectively. Construction Innovation encourages CEOs and senior executives of clients and other project sponsors, designers and contractors to adopt and implement the suggested strategies and turn presently wasted resources into additional wealth and productive investment to improve the quality of life for the Australian community.
has shown that a combination of environmental and behavioural issues can lead to disputes on construction and engineering projects. The inherent degree of uncertainty that prevails within construction projects, given their character as prototypes, can result in planning being a problematic issue, especially when adequate information is not available. When uncertainty is high, initial drawings and specifications will invariably change, and the project team will have to solve problems as they occur during construction. If functional requirements or design documentation are unclear or inadequate, or the resolution of a design problem does not satisfy the needs of all who are affected by it, disagreements between parties can materialise. This is particularly the case when design documentation is completed progressively during construction, leading to potential contingencies not being able to be identified and assessed until they materialise.
However, most tax disputes do not result in litigation. Many enquiries with HMRC arise due to a misunderstanding of the facts, or can be resolved in early negotiations. We frequently advise in this area, and also on the focused in- depth “intervention” processes to try to resolve a number of disputes with HMRC on an accelerated timescale. Our broad tax experience is particularly suited to this type of advice, including reviewing the strength of the taxpayer’s position on the issues under dispute, presenting the arguments and negotiating an acceptable confidential settlement with HMRC.
I N 1985, in the pages of Wisconsin Law Review, four co-authors and I warned that alternative disputeresolution (ADR), then a relatively young movement undergoing explosive growth, was likely to disad- vantage minorities, women, and members of other disempowered groups, particularly when their adversary was a corporation, a white person, or an authority figure of some kind. 1 Coming on the heels of a famous article
This result holds because there does not exist any (budget-balanced) mechanism that can increase the weak players’expected payo¤s, nor reduce the strong players’payo¤s, rela- tive to Myerson mediation. In fact, regardless of whether they are proposed the settlement payo¤ of 1=2 or p ; strong players are exactly indi¤erent between accepting the mediator’s proposal and …ghting. Hence, their payo¤s cannot be further decreased with any other mechanism, and conversely the weak players’share of the pie cannot be further increased. At the same time, the mediator’s optimal strategies maximize the probability that the dispute is resolved peacefully, and hence that the pie is not damaged by con‡ict. Because there does not exist any mechanism that can increase the weak players’payo¤s, nor reduce the strong players’payo¤s, Myerson mediation minimizes equilibrium militarization among all budget-balanced mechanisms.
In practice, many contractors are reluctant to commit themselves until they see how the situation develops. Many consultants and employers also prefer to postpone any decisions for as long as possible. These attitudes are against the contract procedures and the principles of disputeavoidance Contracts always emphasize the need for written notices, whereas it would be preferable to encourage the culture of negotiation, rather than conflict. All contracts, including contractor‟s design and management contracts contain similar provisions and basic procedures. It is essential to ensure that the contractor gives the employer every opportunity to resolve the problems as quickly as possible and to mitigate the consequences of the initial problem, but this should only be a part of the requirements.
completely disregard the highly targeted purpose underlying the Policy, and effectively turn the Policy on "its head" by utterly misusing it. See ITMetrixx, Inc. v. Kuzma Productions Case No. D2001-0668 (WIPO August 2, 2001) where the panel, in denying the complaint, stated: "This matter appears to be a dispute between business partners over the ownership of the business and its assets. This is not a case limited to cybersquatting, which is the problem that the Policy was designed to address." Also, see Latent Technology Group, Inc. v. Bryan Fritchie Case No. FA95285 (Nat. Arb. Forum September 1, 2000) where the panel stated: "If, because of the nature of the claims Complainant believes that it is entitled to own the domain name it should pursue its claims in a forum (e.g., a court) that is more appropriate for such claims"; and Clinomics Biosciences, Inc. v. Simplicity Software, Inc. D2001-0823 (WIPO August 28, 2001) where the panel in denying the requested relief stated: "Prior decisions have rejected complaints where the dispute is primarily contractual and therefore outside the scope of the Policy."
• usually you and the other participants must agree before the process that the arbitrator’s decision will be binding and enforceable. Arbitration may be voluntary, required under a court order (only made where all of the participants have agreed to attend arbitration) or required as part of a contract. often, people involved in a dispute over a contract will use arbitration because they agreed in the contract to use it if such a dispute arose.
Whether a party may appeal a judgment depends largely on the type of claim and the amount in dispute. The appeal must be lodged within a fixed deadline of thirty days. A judgment rendered by a Court of First Instance can normally be fully reviewed by the Upper Court (ordinary appeal) if the claim in dispute exceeds CHF 10,000. The parties may, depending on the specific issues in dispute, be allowed to make new allegations and to raise new defences. Hence, it is generally possible to challenge findings of fact, the exercise of judicial discretion and the application of the law in ordinary appeal procedures.
has been delegated to a third-party tribunal charged with applying designated legal rules and principles. An act of delegation means that disputes must be framed as ‘‘cases’’ between two or more parties, at least one of which, the defendant, will be a state or an individual acting on behalf of a state. (Usually, states are the defendants, therefore, we refer to defendants as ‘‘states.’’ However, international tribunals, as in the proposed International Criminal Court and various war crimes tribunals, may also prosecute individuals. The identity of the plaintiff depends on the design of the disputeresolution mechanism. Plaintiffs can be other states or private parties individuals or nongovernmental organizations (NGOs) specially designated to monitor and enforce the obligatory rules of the regime. We turn now to our three explanatory variables: independence, access, and embeddedness. We do not deny that the patterns of delegation we observe may ultimately have their origins in the power and interests of major states, as certain strands of liberal and realist theory claim. Nevertheless, our analysis here takes these sources of delegation as given and emphasizes how formal legal institutions empower groups and individuals other than national governments.
that is contrary to the sense of people justice, especially justice for taxpayers who are seeking justice in the resolution of tax disputes. The writer proposes a solution to the settlement of tax disputes primarily through alternative disputeresolution (Alternatif Penyelesaian Sengketa (APS)) in the form of mediation, so that the litigation effort is a last legal remedy if the mediation does not reach an agreement. Mediation is done by the expert of mediator and the independent, therefore the writer recommend that the government establish the institution for disputeresolution and tax mediation (Badan Penyelesaian Sengketa dan Mediasi Pajak (BPSMP)) which is a non-ministerial government institution that have a duty to research and decide the tax objection and become the independent mediator in a tax dispute. This institution is needed considering the existing arrangements all this time give authority to the Directorate General of Taxation to investigate and decide the objections of taxpayers, while that institution is the institution that make SKP and it is responsible for reach the tax revenue target.
The link between lawyers and ADR is now so well established that organisations such as Lawyers Engaged in ADR (LEADR) conduct ADR training courses especially for lawyers who may be involved in representing their clients, or who wish to become ADR practitioners themselves. The New South Wales Law Society has a DisputeResolution Committee which advises on policy issues involving ADR, as well as maintaining a panel of third party neutrals. On 30 August 1 995, the New South Wales Law Society, in conjunction with the New South Wales Law Foundation, launched the Mediation Information Kit. The kit states its aims and objectives as being "to disseminate information among the legal profession on the use of mediation to promote negotiated settlement of disputes and the early resolution of litigated matters." The kit also lists reasons why practitioners should use mediation, the second of which states, "expansion of solicitors' practices by the provision of an additional service as an alternative to litigation particularly in situations where litigation is neither cost-effective nor desirable." The kit contains several documents setting out the Law Society's mediation model, guidelines, precedents, mediation initiatives, index of government and non-profit organisations offering alternative disputeresolution, and recent legislative developments in the field of mediation and early neutral evaluation. Page 1 of the guidelines states:
b) The fact that a Complainant might have been informed by the Service Provider of the availability of a domain name is not something which this Panel gives any real weight to. This has no real bearing on the issue of rights and legitimate interests of the Parties in a Domain Name DisputeResolution proceeding. c) The Panel regrets that the Complainant only chose to disclose, during its Reply