The Cowl - Dec 8, 1999 - Millennium Issue

The Cowl - student newspaper of Providence College. Millennium Issue - Dec 8, 1999. 16 pages

American-Style Justice in No Man\u27s Land

This Article seeks to fill the gap in the existing literature by exploring the constitutional limits on federal court subject matter jurisdiction in the context of civil disputes arising in Indian Country and civil disputes arising elsewhere involving Indian tribes, tribal entities, and tribal members. Part II of this Article catalogues the universe of no forum and biased forum jurisdictional quagmires with respect to civil disputes arising in Indian Country or those arising elsewhere involving Indian tribes, tribal entities, and tribal members, examining the existing legal obstacles that prevent federal, state, and tribal courts from exercising jurisdiction over the no forum cases, and those obstacles to federal jurisdiction over biased forum cases. Part III of this Article examines the constitutional authority for and the ways in which Congress has historically expanded the jurisdiction of Article III courts and created specialized, non-Article III courts both to address geographic gaps in adjudicative jurisdiction and to provide a check against local court bias. Part IV of this Article applies these principles to the no forum and biased forum problems in Indian Law, and demonstrates that Congress has the authority to eradicate these problems by either creating specialized, non-Article III courts or expanding the jurisdiction of the existing federal courts. This Article concludes that if Indian tribes wish to avoid further ad hoc erosion of their sovereignty by federal and state courts, they must work with Congress to create federal solutions to the no forum and biased forum problems. The goal of this Article is by no means to advocate a particular method of solving these jurisdictional problems. Rather, this Article seeks to accomplish two goals, one policy-oriented and the other jurisprudential. The policy goal is to provide an exhaustive analysis of the constitutional scope and limitations of federal judicial power so as to enable tribal and congressional leaders to solve the no forum and biased forum problems with full knowledge of the available options. The jurisprudential goal is to provide a much needed catalyst for increasing cross-pollination between the parallel fields of Federal Courts and Indian Law, in the hopes that the latter will not only continue to develop in its own right but will be integrated into and will enrich the former

Prime Minister Fico’s Russian card. OSW COMMENTARY NUMBER NUMBER 175/01.07.2015

Since the beginning of the Ukrainian-Russian conflict, the position of Slovakia’s left-wing government towards Russia has been ambiguous. Bratislava has accepted the EU sanctions targeting Russia and the plan for strengthening NATO’s eastern flank. At the same time, however, Prime Minister Robert Fico’s government has maintained close political relations with the Kremlin. It has called for the intensification of Slovak-Russian economic relations and has repeatedly criticised the sanctions, speaking in tandem with Russian propaganda in so doing. Slovakia’s Prime Minister is hoping that by playing the role of one of the leaders in the EU and NATO who are most willing to cooperate with Russia, he will gain economic benefits and win votes in next spring’s upcoming parliamentary elections. Despite numerous pro-Russian gestures, Slovakia has been limiting the number of areas in which Moscow could exert pressure on Bratislava. As it strives to become independent of Russia, Slovakia has ensured possible alternative fuel supplies for itself. Moreover, it has been gradually replacing Russian-made military equipment with equipment made in the West. The Slovak government does intend to develop the country’s cooperation with Russia, including in strategic areas involving supplies and transit of oil and gas, as well as supplies of nuclear fuel. Nevertheless, it has been making efforts to gain easy access to an alternative source of supplies in each of these areas. Beset by crises, Russia has ever fewer economic cooperation opportunities to offer Slovakia, and Slovak businesses operating on the Russian market have to take into account the growing risk of insolvency of local contractors. To a great extent, therefore, Slovak-Russian relations have been reduced to rhetorical statements confirming the desire for closer cooperation, and to visions of joint projects accompanied by an ever shorter list of feasible cooperation initiatives

The Impact of Arbitral Awards on the Development of International Law: The Development of the International Law Concerning the Taking of Foreign-Owned Property

The thesis concludes that arbitral awards do have an impact on the development of international law. It focuses on arbitral awards rendered in disputes between states and on those rendered in investment disputes between states and aliens. In Chapter II theoretical considerations concerning the influence of arbitral awards on the development of the international law are made. Chapter III, which examines the impact of arbitral awards on the development of some rules of the international law concerning the taking of foreign-owned property, illustrates the role which arbitral awards rendered in investment disputes play in the development of international law

The importance of implementing dispute boards as a means of alternative dispute resolution in the execution of construction contracts in Colombia

A pesar de lo beneficiosos que pueden llegar a ser el arbitraje y la amigable composición en Colombia, en los contratos de obra o construcción, es necesario adoptar un mecanismo rápido y poco costoso que permita a las partes adelantarse al surgimiento de situaciones que puedan dar lugar a conflictos entre ellas. De este modo, los dispute boards son un mecanismo interesante para cumplir con este propósito y para hallar la solución adecuada a las controversias que se presenten en esta materia. Su utilización permitiría evitar los daños y perjuicios que produciría un retardo en la entrega de la obra como consecuencia de la falta de resolución oportuna de conflictos que surjan dentro de la misma; lo que a su vez permitirá un mayor flujo de capital en el país, generando confianza en todos aquellos interesados en celebrar contratos para la construcción de obras, ya sea con el Estado o entre particulares.Despite the benefits of arbitration and amicable composition in Colombia, in the construction contracts, it is necessary to adopt a fast and inexpensive mechanism that allows the parties to anticipate the emergence of situations that may lead to conflicts between them. Thus, the dispute boards are an interesting mechanism to fulfill this purpose and find the best solution for disputes that arise in this matter. Implementing dispute boards would avoid damages that may result in a delay in the delivery of the construction work, due to the lack of a timely resolution of the disputes arising within it; which in turn will also mean a greater flow of capital in the country, generating confidence in all those interested in construction contracts, either with the State or between private parties

Mediation in a conflict society: an ethnographic view on mediation processes in Israel

This thesis addresses the question: how do individuals in a conflict society engage in peaceful dispute resolution through mediation? It provides a close look at Israeli society, in which people face daily conflicts. These include confrontations on many levels: the national, such as wars and terror attacks; the social, such as ethnic, religious and economic tensions; and the personal level, whereby the number of lawyers and legal claims per capita are among the highest in the world. The magnitude, pervasiveness, and often existential nature of these conflicts have led sociologists to label Israel a ‘conflict society’.   Mediation practice came into this society and challenged the existing ethos and norms by proposing a discourse of dialogue and cooperation. The thesis focuses on the meeting point that mediation engenders between narratives of conflict, which have developed in this environment, and the mediation processes, which set out to achieve a collaborative discourse and mutual recognition.   The fieldwork, forming the core of the thesis, consists of the observation of supervised mediation processes of civil disputes in two leading mediation centres, and interviews with professionals and key figures in the discipline. The wide variety of voices of a broad range of interviewees and many different parties provide for rich, qualitative data.   The use of the narrative‐ethnographic approach in observing mediation processes helps identify key themes in participantsʹ  narratives. The subsequent analysis leads to the insight that these mediation processes reflect, in a subtle way, the narratives, beliefs and needs of individuals in a conflict society. The findings from this study indicate that perceptions of life in a conflict society are clearly manifested through mediation processes. These place obstacles and inhibit the attainment of agreements. Yet, surprisingly, some of the findings also demonstrate an aversion to conflict and a well‐expressed desire to maintain communication and to achieve peaceful resolution

Labour dispute resolution in Kenya: compliance with international standards and a comparison with South Africa

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

Contemporary Tendencies in Mediation

Editors: Humberto dalla Bernardina de Pinho, Juliana Loss de AndradePresentation / Humberto Dalla Bernardina de Pinho, Juliana Loss de Andrade. -- Mediation in England / Neil Andrews. -- Un Reto para la Mediación: el Diseño de su Código Deontológico / Nuria Belloso Martín. -- Alternative Dispute Resolution and Aboriginal-Crown Reconciliation in Canada / Roshan Danesh, Jessica Dickson. -- A False ‘Prince Charming’ Keeps ‘Sleeping Beauty’ in a Coma: On Voluntary Mediation Being the True Oxymoron of Dispute Resolution Policy / Giuseppe De Palo. -- Programa de Derivación Judicial en Puerto Rico Desde la Perspectiva de la Mediación / Jacqueline N. Font-Guzmán. -- Mediation in Switzerland / Isabelle Hering. -- Reconocimiento y eficacia de los acuerdos de mediación mercantil internacional / Juliana Loss de Andrade. -- The Uses of Mediation / Lela P. Love, Joseph B. Stulberg. -- Multi-Dimensional Mediation / Paul E. Mason. -- “Italy Is Doing It – Should We Be?” Civil and Commercial Mediation in Italy / Giovanni Matteucci. -- Limites dos Meios Alternativos de Conflito / José Marinho Paulo Junior. -- New Perspectives of Civil and Commercial Mediation in Brazil / Humberto Dalla Bernardina de Pinho. -- Practical Impacts of Theoretical Lenses / Elton Simoes, Andrea Maia. -- Development and Resistance in South Europe Justice Systems to Restorative Justice / Helena Soleto Muño

The Colliding Vernaculars of Foreign Investment Protection and Transitional Justice in Colombia: A Challenge for the Law in a Global Context

This doctoral dissertation explores an argued normative tension between the legal protection of foreign investors via international investment agreements and the implementation of a transitional justice project in Colombia. Considering its nature and extent, this tension is regarded from a global perspective. These legal fields are acknowledged as the opus of transnational legal processes that have been triggered both to diffuse the political vision and to represent the interests of corresponding global epistemic communities. Therefore, their placement at the same political/legal level, and the shared interest they have in regulating access to and use of land and natural resources located within the countrys jurisdiction, encompass a conflictual dynamic. That is, the spread of a neoliberal economic model through the domestic internalization of a set of rules and institutions that limit the capacity of the state to intervene in certain areas of public concern, as opposed to the exercise of legal resistance to the detrimental socioeconomic effects produced on the occasion of the countrys internal armed conflict, by means of the structural adjustment of social relations. The main contention of this dissertation is that, within the realm of the aforementioned normative tension, the legal protection offered to foreign investors in Colombia by virtue of the systematic conclusion of international investment agreements, has the potential to restrict the countrys democratic and sovereign choice to achieve durable peace through the production of profound transformations at the level of social justice. In particular, it is argued that although the international investment agreements concluded by the country are the result of the effective exercise of sovereign prerogatives and place-binding obligations on the state, they cannot be constituted as impregnable commands able to shape indeterminately the countrys public policy space with regards to the implementation of the transitional justice project. Moreover, it is also contended that the legal responses to these investor-state controversies must encompass strong political considerations rather than mere technical issues, since they must acknowledge both the contextual particularities of this type of controversies and the transnational nature of the interests at stake