Settlement outcomes in sexual harassment complaints

This article examines the dispute resolution process of conciliation through a detailed study of Australian workplace sexual harassment complaints. It links two data sets: settlement details of a census of conciliated complaints lodged under all federal, State, and Territory anti-discrimination laws in a six-month period; and interviews undertaken with 71 professionals who have extensive, first-hand experience of conciliation processes in anti-discrimination jurisdictions. The article provides a critique of the effectiveness of conciliation as a form of ADR within the individualised constraints of current anti-discrimination laws.

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.

Analysis of construction dispute review boards

The construction industry has long been burdened with inherent adversarial relationships among the parties and the resulting disputes. Dispute review boards (DRBs) have emerged as alternatives to settle construction-related disputes outside courts. Although DRBs have found support in some quarters of the construction industry, the quantitative assessment of the impact of DRBs has not been adequately addressed. This paper presents the results of a research project undertaken to assess the impact of DRBs on the construction program of a large-scale highway agency. Three dimensions of DRB impact were assessed: (1) influence on project cost and schedule performance, (2) effectiveness of DRBs in preventing and resolving construction disputes, and (3) costs of DRB implementation. The analyses encompass data from approximately 3,000 projects extending over a 10-year period (2000–2009). Quantitative measures of performance were developed and analyzed for each category. Projects that used DRBs faced reduced costs and schedule growth (6.88 and 12.92%, respectively) when compared to non-DRB projects (11.53 and 28.96%). DRBs were also found to be effective in avoiding and settling disputes; the number of arbitration cases reduced consistently after DRB implementation, and DRBs have a success rate of 97% in settling disputes for which DRBs were used. Moreover, costs of DRBs were found to comprise a relatively small fraction (i.e., approximately 0.3%) of total project budgets. It was concluded that DRBs were effective dispute prevention and resolution alternatives with no significant adverse effects on project performance.

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.

Interrogatories - Who may be interrogated

In Pacific Century Production Pty Ltd v Netafirm Australia Pty Ltd [2004] QSC 043 the court was asked for the first time to consider the application of rule 229(1)(b) of the Uniform Civil Procedure Rules 1999 (the UCPR)

Taxonomic resolution and quantification of freshwater macroinvertebrate samples from an Australian dryland river : The benefits and costs of using species abundance data

In studies using macroinvertebrates as indicators for monitoring rivers and streams, species level identifications in comparison with lower resolution identifications can have greater information content and result in more reliable site classifications and better capacity to discriminate between sites, yet many such programmes identify specimens to the resolution of family rather than species. This is often because it is cheaper to obtain family level data than species level data. Choice of appropriate taxonomic resolution is a compromise between the cost of obtaining data at high taxonomic resolutions and the loss of information at lower resolutions. Optimum taxonomic resolution should be determined by the information required to address programme objectives. Costs saved in identifying macroinvertebrates to family level may not be justified if family level data can not give the answers required and expending the extra cost to obtain species level data may not be warranted if cheaper family level data retains sufficient information to meet objectives. We investigated the influence of taxonomic resolution and sample quantification (abundance vs. presence/absence) on the representation of aquatic macroinvertebrate species assemblage patterns and species richness estimates. The study was conducted in a physically harsh dryland river system (Condamine-Balonne River system, located in south-western Queensland, Australia), characterised by low macroinvertebrate diversity. Our 29 study sites covered a wide geographic range and a diversity of lotic conditions and this was reflected by differences between sites in macroinvertebrate assemblage composition and richness. The usefulness of expending the extra cost necessary to identify macroinvertebrates to species was quantified via the benefits this higher resolution data offered in its capacity to discriminate between sites and give accurate estimates of site species richness. We found that very little information (<6%) was lost by identifying taxa to family (or genus), as opposed to species, and that quantifying the abundance of taxa provided greater resolution for pattern interpretation than simply noting their presence/absence. Species richness was very well represented by genus, family and order richness, so that each of these could be used as surrogates of species richness if, for example, surveying to identify diversity hot-spots. It is suggested that sharing of common ecological responses among species within higher taxonomic units is the most plausible mechanism for the results. Based on a cost/benefit analysis, family level abundance data is recommended as the best resolution for resolving patterns in macroinvertebrate assemblages in this system. The relevance of these findings are discussed in the context of other low diversity, harsh, dryland river systems.

The Construction and Performance of Commercial Contracts

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts. The first Part of the work deals with general principles of interpretation. It then considers clauses which allocate commercial risk; clauses relating to performance; clauses introducing new parties by way of assignment, novation or nomination; clauses such as guarantees and indemnities which create liabilities in third parties; and dispute resolution clauses including governing law. The authors highlight common issues surrounding the application of these clauses in practice and, where appropriate, make drafting recommendations based on their analysis of case law and the operation of relevant statutes. This is a very accessible resource for all commercial practitioners.

Australian patent enforcement : a proposal for an expert panel opinion

The Australian Government has been concerned “to find ways of making patent enforcement less of an issue” and to make it “cheaper, simpler and quicker to get fair and appropriate resolution for any dispute”. Major problems relating to patent enforcement in Australia have been identified as: the cost of legal proceedings; the lack of patent owners’ financial capacity to fund enforcement proceedings; delay; and uncertainty as to the outcome and lack of knowledge about the processes of enforcement. This paper considers some of the problems associated with patent enforcement in Australia and proposes an approach to patent litigation which is directed at alleviating some of the difficulties which have been identified. Specifically, it proposes a strategy designed to identify the parties’ risks at an early stage of patent litigation proceeding and facilitate an early resolution of the dispute.

Analysis of construction dispute review boards

This paper presents the results of a research project undertaken to assess the impact of DRBs on the construction program of a large scale highway agency. Three dimensions of DRB impact were assessed: (1)influence on project cost and schedule performance, (2) effectiveness of DRBs in preventing and resolving construction disputes, and (3) costs of DRB implementation. The analyses encompass data from approximately 3,000 projects extending over a 10 year period (2000-2009).

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.

Can a court protect an ex-addict from themselves?

In Hewitt v Bayntum & Allianz Australia Insurance Ltd [2015] QSC 250 the court was asked to sanction a compromise of a proceeding by a plaintiff who, though a recovering drug addict, was able to give instructions and understand the proposed compromise.

Ordem pública processual: técnica de controle da regularidade do processo civil

O processo civil precisa de ordem, simplicidade e eficiência para atingir o seu escopo de prestação de uma tutela jurisdicional adequada, justa e célere. Para tanto, o ordenamento processual tem sofrido relevantes modificações com o objetivo de se adaptar às novas exigências sociais e jurídicas, em que o formalismo deve servir para proteger, e não para derrubar. Além disso, variadas técnicas processuais têm sido utilizadas para conferir mais efetividade à tutela jurisdicional, sem prejuízo da necessária segurança jurídica. Nesse contexto se insere a ordem pública processual, que embora possa ter uma interessante abordagem principiológica, atua no processo como técnica de controle da regularidade de atos e do procedimento. Por sua vez, o papel do magistrado na gestão dessa técnica se mostra fundamental para ela atinja seu objetivo, que é eliminar do processo os defeitos capazes de macular a sua integridade, bem como a legitimidade da tutela judicial. O controle adequado e tempestivo da regularidade dos atos e do procedimento é um dever do juiz e também uma garantia das partes. Dessa forma, a tese busca identificar as questões processuais passíveis de controle, de acordo com o grau de interesse público que cada uma revela, sendo certo que a lei, a doutrina e a jurisprudência servem de fonte e ainda podem modular a relevância da matéria conforme tempo e espaço em que se observam. Por sua vez, a importância da avaliação do interesse público de cada questão processual reflete no regime jurídico que será estabelecido e as consequências que se estabelecem para os eventuais defeitos com base nas particularidades do caso concreto. Ademais, identificada a irregularidade, o processo civil oferece variadas técnicas de superação, convalidação e flexibilização do vício antes de se declarar a nulidade de atos processuais ou de se inadmitir o procedimento adotado pela parte, numa forma de preservar ao máximo o processo. Já no âmbito recursal, embora haja requisitos específicos de admissibilidade, os vícios detectados em primeiro grau de jurisdição perdem força em segundo grau e perante os Tribunais Superiores, haja vista a necessidade casa vez maior de se proporcionar ao jurisdicionado a entrega da prestação jurisdicional completa, ou seja, com o exame do mérito. Registre-se, ainda, a possibilidade de controle judicial nos meios alternativos de resolução de conflitos, uma vez que também devem se submeter a certos requisitos, para que sejam chancelados e legitimados. Como se observa, a abrangência do tema da ordem pública processual faz com que o ele seja extenso e complexo, o que normalmente assusta os operadores do direito. Portanto, o intento deste estudo é não só descrever o assunto, mas também adotar uma linguagem diferenciada, proporcionando uma nova forma de abordar e sistematizar o que ainda parece ser um dogma em nosso sistema processual.

A Review of Meditation in the Irish Construction Industry: Critical Success Factors in Competencies and Processes

The construction industry notoriously excels at dispute creation – both in Ireland and world wide. This paper exams mediation in the Irish construction industry based around critical success factors in the competencies and processes required by mediators operating in the construction industry. Through conducting the relevant analysis, it was possible to extract and outline the resulting critical success factors in process and competencies of mediators in the Irish construction industry. This was achieved through a review of the literature, followed by detailed interviews from industry experts to elicit and highlight the core competencies required. To aid in the study, qualitative analysis using mind mapping software was adopted, thus assisting the identification of the key factors. Following analysis, facilitative mediation was identified as best suited for the industry in question; recommendations and experience were key for mediator selection and five and six factors were identified for mediator skills and mediation critical success factors respectively. The results returned are similar to those determined by authors in other countries and provide a good reference point for the development the industry. By following the findings of this report mediators and parties in dispute can improve processes and be more successful in outcomes. In this study the author shows that mediation is an effective and appropriate method of resolving disputes within the Irish construction industry.