Litigating law of the sea disputes using the UNCLOS Dispute Settlement System

The interpretation and application of the United Nations Convention on the Law of the Sea (UNCLOS) may be the source of many disputes. UNCLOS introduced an à la carte menu for dispute settlement with a number of options for international dispute resolution, including a compulsory procedure entailing binding decisions. While drafting this ambitious and complex system of dispute settlement, the drafters had to negotiate many delicate compromises to secure a system for the uniform interpretation of the Convention. The aim of this paper r is to explore why litigation using the UNCLOS dispute settlement system is, or is not, a preferred mode of settlement for law of the sea disputes.

An analysis of dispute review boards and settlement mediation as used in the Australian construction industry

If there is a silver lining to the adversarial, dispute-prone nature of the building and construction industry, it can be found in the concomitant rise of innovative dispute resolution mechanisms. Time, cost and relationship concerns have meant that the formal adversarial system holds little appeal for disputing parties. As these alternative forms of dispute avoidance/resolution have matured in Australia over the last 20 years, attention has turned to the key characteristics of each process and their suitability to the building and construction industry. This article considers the role of dispute review boards (DRBs) and mediation as two alternative methods for avoiding/resolving disputes in the construction industry. Criteria are established for evaluating the efficacy of these procedures and their sensitivity to the needs of construction industry disputants. The ultimate conclusion reached is that DRBs represent a powerful, yet underutilised dispute resolution tool in Australia, and possess many industry-specific advantages that more traditional forms of alternative dispute resolution (particularly mediation) do not provide.

Lock the gate: Fracking, investor-state dispute settlement, and the Trans-Pacific Partnership

There has been much debate about the relationship between international trade, the environment, biodiversity protection, and climate change.The Obama Administration has pushed such issues into sharp relief, with its advocacy for sweeping international trade agreements, such as the Trans-Pacific Partnership and the Trans-Atlantic Trade and Investment Partnership. There has been much public concern about the impact of the mega-trade deals upon the protection of the environment. In particular, there has been a debate about whether the Trans-Pacific Partnership will promote dirty fracking. Will the Trans-Pacific Partnership transform the Pacific Rim into a Gasland?There has been a particular focus upon investor-state dispute settlement being used by unconventional mining companies. Investor-state dispute settlement is a mechanism which enables foreign investors to seek compensation from national governments at international arbitration tribunals. In her prescient 2009 book, The Expropriation of Environmental Governance, Kyla Tienhaara foresaw the rise of investor-state dispute resolution of environmental matters. She observed:'Over the last decade there has been an explosive increase of cases investment arbitration. This is significant in terms of not only the number of disputes that have arisen and the number of states that have been involved, but also the novel types of dispute that have emerged. Rather than solely involving straightforward incidences of nationalization or breach of contract, modern disputes often revolve around public policy measures and implicate sensitive issues such as access to drinking water, development on sacred indigenous sites and the protection of biodiversity.'In her study, Kyla Tienhaara observed that investment agreements, foreign investment contracts and investment arbitration had significant implications for the protection for the protection of the environment. She concluded that arbitrators have made it clear that they can, and will, award compensation to investors that claim to have been harmed by environmental regulation. She also found that some of the cases suggest that the mere threat of arbitration is sufficient to chill environmental policy development. Tienhaara was equally concerned by the possibility that a government may use the threat of arbitration as an excuse or cover for its failure to improve environmental regulation. In her view, it is evident that arbitrators have expropriated certain fundamental aspects of environmental governance from states. Tienhaara held: As a result, environmental regulation has become riskier, more expensive, and less democratic, especially in developing countries. This article provides a comparative analysis of the battles over fracking, investment, trade, and the environment in a number of key jurisdictions including the United States, Canada, Australia, and New Zealand. Part 1 focuses upon the United States. Part 2 examines the dispute between the Lone Pine Resources Inc. and the Government of Canada over a fracking moratorium in Quebec. Part 3 charts the rise of the Lock the Gate Alliance in Australia, and its demands for a moratorium in respect of coal seam gas and unconventional mining. Part 4 focuses upon parallel developments in New Zealand. This article concludes that Pacific Rim countries should withdraw from investor-state dispute settlement procedures, because of the threat posed to environmental regulation in respect of air, land, and water.

Virtual countries: Internet domain names and geographical terms

This paper examines the dispute between the Seattle company Virtual Countries Inc. and the Republic of South Africa over the ownership of the domain name address southafrica.com. The first part of the paper deals with the pre-emptive litigation taken by Virtual Countries Inc. in a District Court of the United States. The second part considers the possible arbitration of the dispute under the Uniform Domain Name Dispute Resolution Process of the Internet Corporation for Assigned Names and Numbers (ICANN) and examines the wider implications of this dispute for the jurisdiction and the governance of ICANN. The final section of the paper evaluates the Final Report of the Second WIPO Internet Domain Name Process.

Collaboration and Engagement Throughout The Supply Chain : The Role of Government

Collaboration is acknowledged as a key to continued growth in the Australian construction industry. Government, as a major industry client, has an important role to play with respect to fostering collaboration and ensuring the global competitiveness of the industry. The paper draws upon data collected for the Construction 2020 study and aims to demonstrate that government can a) help to break down the adversarial situation that currently exists between clients, project managers and subcontractors; and b) allow the supply chain to collaborate more effectively in terms of satisfying the relational and financial needs of all parties. Government can also provide a clear set of guidelines (backed up by a functional dispute resolution system) that will promote confidence with respect to forging relationships. Thus, the paper will discuss the way in which public policy can be more closely aligned with actual industry needs in order to promote greater collaboration.

Non-adversarial advocates and gatekeepers : lawyers, FDR practitioners and co-operative post-separation parenting

The compulsory dispute resolution requirements in family law parenting cases create new roles and obligations for both lawyers and family dispute resolution (FDR) practitioners. This article will discuss how the legislative provisions impact on both sets of professionals in practice. It will also highlight the increased non-adversarial role of lawyers and a new role for FDR practitioners as “gatekeepers” to family courts in cases requiring FDR certificates.

Are the financial services external complaints resolution schemes subject to judicial review?

In Australia seven schemes (apart from the Superannuation Complaints Tribunal) provide alternative dispute resolution services for complaints brought by consumers against financial services industry members. Recently the Supreme Court of New South Wales held that the decisions of one scheme were amenable to judicial review at the suit of a financial services provider member and the Supreme Court of Victoria has since taken a similar approach. This article examines the juristic basis for such a challenge and contends that judicial review is not available, either at common law or under statutory provisions. This is particularly the case since Financial Industry Complaints Service Ltd v Deakin Financial Services Pty Ltd (2006) 157 FCR 229; 60 ACSR 372 decided that the jurisdiction of a scheme is derived from a contract made with its members. The article goes on to contend that the schemes are required to give procedural fairness and that equitable remedies are available if that duty is breached.

Automatic tracking, super-resolution and recognition of human faces from surveillance video

Identifying an individual from surveillance video is a difficult, time consuming and labour intensive process. The proposed system aims to streamline this process by filtering out unwanted scenes and enhancing an individual's face through super-resolution. An automatic face recognition system is then used to identify the subject or present the human operator with likely matches from a database. A person tracker is used to speed up the subject detection and super-resolution process by tracking moving subjects and cropping a region of interest around the subject's face to reduce the number and size of the image frames to be super-resolved respectively. In this paper, experiments have been conducted to demonstrate how the optical flow super-resolution method used improves surveillance imagery for visual inspection as well as automatic face recognition on an Eigenface and Elastic Bunch Graph Matching system. The optical flow based method has also been benchmarked against the ``hallucination'' algorithm, interpolation methods and the original low-resolution images. Results show that both super-resolution algorithms improved recognition rates significantly. Although the hallucination method resulted in slightly higher recognition rates, the optical flow method produced less artifacts and more visually correct images suitable for human consumption.

Public regulatory reform and management earnings forecasts in a low private litigation environment

We examine the impact of continuous disclosure regulatory reform on the likelihood, frequency and qualitative characteristics of management earnings forecasts issued in New Zealand’s low private litigation environment. Using a sample of 720 earnings forecasts issued by 94 firms listed on the New Zealand Exchange before and after the reform (1999–2005), we provide strong evidence of significant changes in forecasting behaviour in the post-reform period. Specifically, firms were more likely to issue earnings forecasts to pre-empt earnings announcements and, in contrast to findings in other legal settings, those earnings forecasts exhibited higher frequency and improved qualitative characteristics (better precision and accuracy). An important implication of our findings is that public regulatory reforms may have a greater benefit in a low private litigation environment and thus add to the global debate about the effectiveness of alternative public regulatory reforms of corporate requirements.

A review of rationale for allocating costs and payments in producing and supplying public sector information PART A of 2 Parts – Chapters 1, 2 and 3) 13 March 2011 version

This work reviews the rationale and processes for raising revenue and allocating funds to perform information intensive activities that are pertinent to the work of democratic government. ‘Government of the people, by the people, for the people’ expresses an idea that democratic government has no higher authority than the people who agree to be bound by its rules. Democracy depends on continually learning how to develop understandings and agreements that can sustain voting majorities on which democratic law making and collective action depends. The objective expressed in constitutional terms is to deliver ‘peace, order and good government’. Meeting this objective requires a collective intellectual authority that can understand what is possible; and a collective moral authority to understand what ought to happen in practice. Facts of life determine that a society needs to retain its collective competence despite a continual turnover of its membership as people die but life goes on. Retaining this ‘collective competence’ in matters of self-government depends on each new generation: • acquiring a collective knowledge of how to produce goods and services needed to sustain a society and its capacity for self-government; • Learning how to defend society diplomatically and militarily in relation to external forces to prevent overthrow of its self-governing capacity; and • Learning how to defend society against divisive internal forces to preserve the authority of representative legislatures, allow peaceful dispute resolution and maintain social cohesion.

Law student psychological distress, ADR and sweet-minded, sweet-eyed hope

Empirical studies conducted by both Australian and American researchers have established law school’s causative role in increasing law student psychological distress. The purpose of this article is to highlight the role that law school curriculum might play in addressing this problem. By utilising lessons from the field of positive psychology (and in particular hope theory) a first-year law subject at the Queensland University of Technology has been specifically designed to promote law student well-being. Traditional legal education and pedagogy do not hold the answers for addressing this social phenomenon. A first-year curriculum that introduces students to alternative dispute resolution, non-adversarial justice, resilience and the positive role of lawyers in society may go some way to addressing the law student well-being challenge.

Nangkha Nangdrik in the land of the Thunder Dragon : psychology, religion and the potential of mediation in the Kingdom of Bhutan

This article will consider the role that Alternative Dispute Resolution (‘Dham Kha Chen Ki Khendum’ or ‘Nangkha Nangdrik’) currently plays in resolving legal conflict in Bhutan. With a Constitution that has committed to the pursuit of Gross National Happiness, non-adversarial dispute resolution processes that promote continuing relationships and goodwill assume greater importance. One difficulty for Bhutan is that alternative dispute resolution procedures such as mediation (Dhum Drik) are being referred to in enactments of the Bhutanese National Council and National Assembly (bicameral parliament), without a shared understanding as to the characteristics and functionality of these procedures. This article will focus particularly on the current practice of mediation in Bhutan and investigate whether particular models of mediation are more suited to the Bhutanese context, given the particularities of Bhutanese culture, the search for gross national happiness, psychological understandings of happiness and the omnipresent influence of Mahayana Buddhism.

Proportionality of sanctions under the WADA Code : CAS jurisprudence and the need for a strict approach

This article suggests that the issue of proportionality in anti-doping sanctions has been inconsistently dealt with by the Court of Arbitration for Sport (CAS). Given CAS’s pre-eminent role in interpreting and applying the World Anti-Doping Code under the anti-doping policies of its signatories, an inconsistent approach to the application of the proportionality principle will cause difficulties for domestic anti-doping tribunals seeking guidance as to the appropriateness of their doping sanctions.

Evaluating consent and legitimacy amongst shifting community norms : an EVE Online case study

The legitimate resolution of disputes in online environments requires a complex understanding of the social norms of the community. The conventional legal approach to resolving disputes through literal interpretation of the contractual terms of service is highly problematic because it does not take into account potential conflict with community expectations. In this paper we examine the importance of consent to community governance and argue that a purely formal evaluation of consent is insufficient to legitimately resolve disputes. As online communities continue to grow in importance to the lives of their participants, the importance of resolving disputes legitimately, with reference to the consent of the community, will also continue to grow. Real consent, however, is difficult to identify. We present a case study of botting and real money trading in EVE Online that highlights the dynamic interaction of community norms and private governance processes. Through this case study, we argue that the major challenge facing regulators of online environments is that community norms are complex, contested, and continuously evolving. Developing legitimate regulatory frameworks then depends on the ability of regulators to create efficient and acceptable modes of dispute resolution that can take into account (and acceptably resolve) the tension between formal contractual rules and complex and conflicting community understandings of acceptable behaviour.