The artist is a thief: A book review

Stephen Gray is a writer and law lecturer who has been living in Darwin since 1989. He started out writing formal legal pieces about how copyright law had unsuccessfully sought to accommodate Aboriginal art. Such work led him to further investigate the philosophical questions underlying the legal issues affecting both traditional and urban Indigenous people. Gray has also explored matters of bioprospecting in relation to Indigenous biological resources. He has investigated the introduction of a label of authenticity into Australia. Gray has also published a number of articles about other legal issues affecting Indigenous people. He has explored such topics as native title, customary law, alternative dispute resolution, and criminal law. Gray has recently been awarded The Australian/ Vogel Literary Award for his novel The Artist is a Thief. He was inspired to write a book after being sent out to a community on a possible copyright claim as part of his job in the law faculty of Northern Territory University: "I wrote an academic article and then a more philosophical piece talking about the copyright act and the way it doesn't really protect traditional artists who have a very different view of the place of their art. The pieces were interesting, but I felt there was something more there that needed a fictional expression as well." It is ironic that such a self-conscious and sophisticated meditation upon appropriation and authenticity should win The Australian/ Vogel Literary Award. The inaugural award in 1980 was won by Paul Radley, who later revealed his books were mostly written by his uncle, and in 1993 it was won by Helen Demidenko, aka Darville, who had lied about her Ukrainian background and family history.

Estate contestation in Australia: An empirical study of a year of case law

This article reports on a study which reviewed all publicly available succession law judgments in Australia during a 12-month period. The article begins with a brief overview of the relevant Australian law and the method adopted for the case review to provide some context for the analysis that follows. It then shifts to its primary objective: to provide an overview of Australian estate litigation during this period with a particular focus on analysing the family provision contests, which comprised over half the cases in the sample. The article examines how many estates were subject to family provision claims, who were contesting them, and to what extent those challenges were successful. The article also considers variation in estate litigation across Australian states and the impact of estate size on contests. It concludes by identifying the themes that emerged from these judicial cases and outlines their significance for law and practice reform.

NEC Contracting: Evaluation of the Inclusion of Dispute Review Boards in lieu of Adjudication in the Construction Industry in the United Kinddom

The construction industry is renowned for spending vast sums in the resolution of disputes, but never in the prevention. The purpose of this paper is to analyse the New Engineering Contract (NEC) to determine whether or not adjudication has become misaligned with the contract’s objective of promoting effective management. In doing so, the paper examines dispute review boards in order to ascertain if they could be a viable alternative to adjudication. A sequential mixed methodology is adopted including a detailed literature review, eight semi-structured interviews, culminating in the circulation and analysis of a questionnaire, to record the significance of the factors identified. The research concludes that the majority of individuals agree that dispute review boards would be more aligned with the NEC. The familiarity of members, the potential to curb rogue behaviour of parties and the proactive nature of the board are flagged as positive features, however the cost aspect requires further investigation. The reservations made in the study about adjudication, such as the priority given to speed over accuracy and also the adversarial nature of the process, suggest that a preventative step prior to proceeding to adjudication would coincide more with the three core themes of the NEC Contract and therefore, be a positive addition.

Le développement des modes alternatifs de règlement des litiges de consommation : Quelques réflexions inspirées par l’expérience ECODIR

"ECODIR a vu le jour en octobre 2001, à Bruxelles, grâce à la contribution financière entre autres de l’Union européenne. C’est une plate-forme de règlement des litiges de consommation par Internet. Son champ d’action est limité, en raison des termes du contrat de recherche conclu avec la Commission européenne et de certaines contraintes juridiques. Il ne couvre que les conflits mettant en cause au moins un consommateur et relatifs à une transaction effectuée en ligne ; les litiges portant sur des questions complexes (fiscalité, droit de la famille par exemple) sont exclus. ECODIR n’est pas un processus d’arbitrage, mais de médiation : la possibilité d’ester en justice en cas d’échec du processus n’est pas exclue. Les auteurs décrivent les trois phases du processus, puis font le bilan de son fonctionnement. Ils analysent l’incidence des recommandations et des directives de la Commission européenne sur le commerce électronique avant d’examiner enfin la portée des solutions dégagées au terme de toute la procédure."

Le développement des modes alternatifs de règlement des litiges de consommation : quelques réflexions inspirées par l’expérience ECODIR

"ECODIR a vu le jour en octobre 2001, à Bruxelles, grâce à la contribution financière entre autres de l’Union européenne. C’est une plate-forme de règlement des litiges de consommation par Internet. Son champ d’action est limité, en raison des termes du contrat de recherche conclu avec la Commission européenne et de certaines contraintes juridiques. Il ne couvre que les conflits mettant en cause au moins un consommateur et relatifs à une transaction effectuée en ligne ; les litiges portant sur des questions complexes (fiscalité, droit de la famille par exemple) sont exclus. ECODIR n’est pas un processus d’arbitrage, mais de médiation : la possibilité d’ester en justice en cas d’échec du processus n’est pas exclue. Les auteurs décrivent les trois phases du processus, puis font le bilan de son fonctionnement. Ils analysent l’incidence des recommandations et des directives de la Commission européenne sur le commerce électronique avant d’examiner enfin la portée des solutions dégagées au terme de toute la procédure."

Best practice in the training, appointment and remuneration of members of dispute boards for large infrastructure projects

This paper reports part of a qualitative study into evolving practice in the implementation of the Dispute Adjudication Board (DAB) construction dispute resolution technique, a variant of the Dispute Review Board (DRB) concept used in the US and Canada. Data was collected through a focus group interview of 20 highly experienced dispute resolution practitioners from engineering and the law. The group was assembled from members of FIDIC-NET with direct experience of project DABs. The part reported here concerns practice and procedure for establishing DABs. The main findings are that: constitution of the DABs is often delayed because of either project owners' ignorance of the DAB process or deterrence by the cost of the DABs; such owners also tend to insist on appointing DAB members from local engineers and lawyers without sufficient understanding of the DAB process; rates of remuneration of DAB members vary widely; the training provision for DAB membership and advocacy skills is inadequate; the process of selecting candidates for DAB membership and negotiating the tripartite agreement between each member and the contractual parties needs to be navigated with great care to avoid raising ethical problems. The research contribution is threefold. First, it highlights the importance of realistic fees for DAB members within a standard framework in achieving timely establishment of a board that works well as a team. Second, it illustrates the use of qualitative focus group interview to study the impact of new contract terms from multiple stakeholder perspectives. Finally, it identifies areas where further research is needed.

Bargaining in the shadow of the Law - using utility functions to support legal negotiation

Most dispute resolution is settled by negotiation rather than litigation. However, such bargaining often occurs in the shadow of the law. To help support interest-based negotiation, we explore the use of utility functions to support negotiation analysis. We discuss in detail a utility function we have developed in the area of family-law mediation. This function is currently being used as the basis of an online dispute resolution system.

The role of emotional intelligence on the resolution of disputes involving the electronic health record

Numerous authors have expressed concerns that the introduction of the Personally Controlled Electronic Health Record (PCEHR) will lead to an escalation of disputes. Some disputes will concern the accuracy of the record whereas others will arise simply due to greater access to health care records. Online dispute resolution (ODR) programs have been successfully applied to cost-effectively help disputants resolve commercial, insurance and other legal disputes, and can also facilitate the resolution of health care related disputes. However, we expect that health differs from other application domains in ODR because of the emotional engagement patients have with their health and those of loved ones. In this study we will be looking at whether the success of an online negotiation is related to how people recognise and manage emotions, and in particular, their Emotional intelligence score.

Disputes resolution : can Bim help overcome barriers?

Many researchers consider disputes as part of the project lifecycle. Although preventative actions exist, it is not utterly possible to avoid them. Once the disputes arise, an appropriate resolution technique should be adopted. Common perception is referring to a resolution method either internally or via a third party; which may also be binding by law. The resolution process requires attention to the disputed claims. Hence, deep investigation of the claims and choosing the appropriate method is crucial for the successful project delivery and reputation of the industry.

Preparation of disputed claims and resolution process also faces many debates. Conducting To effective dispute resolution requires attention to proper preparation and presentation of the incurred events. All the required information should be acquired to estimate and present the claim, for a smooth settlement. As an integrated digital model of the project, BIM, stores all the information of the projects in detail. Retrieval of the required information for the disputed issues can easily be obtained from the model. It is also possible to embed the construction schedule, change orders and variations, specifications and financial data such as cash flow along with the multidisciplinary drawings. As this model stores all the information at every particular time and phase, disputes can be concluded quick and accurate.

In this research, using a case study and literature review, disputes and resolution processes are deeply studied. A BIM model is created to investigate benefits on overcoming the challenges; during claiming, and resolution of the disputes. It is seen that the claims are prepared faster and more accurate in a visualized environment provided by BIM. Furthermore, substantiating and presenting the disputes for the resolution purpose was incomparable to the traditional methods. The conclusions recommend that; even the project did not adopt a BIM model earlier; it can be created for a smooth process, during claiming and resolution of disputes.

The Brazilian experience in dispute settlement

Includes bibliography

As práticas de alienação parental e o papel do estado-juiz para coibi-las

Pós-graduação em Direito - FCHS