ADR and Justice in consumer disputes in the EU

This policy brief reports on the main conclusions from an international conference held at Wolfson College, Oxford on 18–20 April 2016, at which representatives from seven governments, ombudsmen, and academic experts assessed efforts to implement new dispute resolution mechanisms across EU Member States. The briefing also assesses the levels of trust the public holds in ombudsmen, and what drives this trust. It finds a number of mechanisms under development, and makes a range of recommendations for future approaches.

designing + (dis)assembling disputes: an ethnography of disputes & lawyers in the construction industry

The UK construction industry is notorious for the sheer amount of disputes which are likely to arise on each building and engineering project. Despite numerous creative attempts at “dispute avoidance” and “dispute resolution”, this industry is still plagued with these costly disputes. Whilst both academic literature and professional practices have investigated the causes of disputes and the mechanisms for avoidance/resolution of these disputes, neither has studied in any detail the nature of the construction disputes and why they develop as they do once a construction lawyer is engaged. Accordingly, this research explores the question of what influences the outcome of a construction dispute and to what extent do construction lawyers control or direct this outcome? The research approach was ethnographic. Fieldwork took place at a leading construction law firm in London over 18 months. The primary focus was participant observation in all of the firm’s activities. In addition, a database was compiled from the firm’s files and archives, thus providing information for quantitative analysis. The basis of the theoretical framework, and indeed the research method, was the Actor‐Network Theory (ANT). As such, this research viewed a dispute as a set of associations – an entity which takes form and acquires its attributes as a result of its relations with other entities. This viewpoint is aligned with relational contract theories, which in turn provides a unified platform for exploring the disputes. The research investigated the entities and events which appeared to influence the dispute’s identity, shape and outcome. With regard to a dispute’s trajectory, the research took as its starting point that a dispute follows the transformation of “naming, blaming, claiming…”, as identified by Felstiner, Abel and Sarat in 1980. The research found that construction disputes generally materialise and develop prior to any one of the parties approaching a lawyer. Once the lawyer is engaged, we see the reverse of the trajectory “naming, blaming, claiming…” this being: “claiming, blaming, naming…” The lawyers’ role is to identify or name (or rename) the dispute in the best possible light for their client in order to achieve the desired outcome – the development of which is akin to the design process. The transformation of a dispute and the reverse trajectory is by no means linear, but rather, iterative and spatial as it requires alliances, dependencies and contingencies to assemble and take the shape it does. The research concludes that construction disputes are rarely ever completely “resolved” as such. Whilst an independent third party may hand down a judgment, or the parties may reach a settlement agreement, this state is only temporal. Some construction disputes dissipate whist others reach a state of hibernation for a period of time only to pick up momentum and energy some years later. Accordingly, this research suggests that the concept of “dispute resolution” does not exist in the UK construction industry. The ultimate goal should be for parties to reach this ultimate and perpetual state of equilibrium as quickly and as cost effectively as possible: “dispute dissolution”, the slowing down of the dispute’s momentum. Rather than focusing on the design and assemblage of the dispute, the lawyers’ role therein is, or should be, to assist with the “disassembling” of the dispute.

Paths to peace: conflict management trajectories in militarized interstate disputes

When multiple third-parties (states, coalitions, and international organizations) intervene in the same conflict, do their efforts inform one another? Anecdotal evidence suggests such a possibility, but research to date has not attempted to model this interdependence directly. The current project breaks with that tradition. In particular, it proposes three competing explanations of how previous intervention efforts affect current intervention decisions: a cost model (and a variant on it, a limited commitments model), a learning model, and a random model. After using a series of Markov transition (regime-switching) models to evaluate conflict management behavior within militarized interstate disputes in the 1946-2001 period, this study concludes that third-party intervention efforts inform one another. More specifically, third-parties examine previous efforts and balance their desire to manage conflict with their need to minimize intervention costs (the cost and limited commitments models). As a result, third-parties intervene regularly using verbal pleas and mediation, but rely significantly less frequently on legal, administrative, or peace operations strategies. This empirical threshold to the intervention costs that third-parties are willing to bear has strong theoretical foundations and holds across different time periods and third-party actors. Furthermore, the analysis indicates that the first third-party to intervene in a conflict is most likely to use a strategy designed to help the disputants work toward a resolution of their dispute. After this initial intervention, the level of third-party involvement declines and often devolves into a series of verbal pleas for peace. Such findings cumulatively suggest that disputants hold the key to effective conflict management. If the disputants adopt and maintain an extreme bargaining position or fail to encourage third-parties to accept greater intervention costs, their dispute will receive little more than verbal pleas for negotiations and peace.

Public interests in water concession disputes

The flux of foreign investment into the water industry led to the internationalisation of contracts and of the method of settlement of possible disputes. When disputes over the performance of a water concession give origin to investor-state arbitrations, public authorities are put in a challenging position. The state need to combine two different roles – its role in the provision of services of public interest and the fulfilment of its international legal obligations arising from international investment agreements. The complexity of this relationship is patent in a variety of procedural and substantive issues that have been surfacing in arbitration proceedings conducted before the International Centre for Settlement of Investment Disputes. The purpose of this dissertation is to discuss the impact of investment arbitration on the protection of public interests associated with water services. In deciding these cases arbitrators are contributing significantly in shaping the contours and substance of an emerging international economic water services regime. Through the looking glass of arbitration awards one can realise the substantial consequences that the international investment regime has been producing on water markets and how significantly it has been impacting the public interests associated with water services. Due consideration of the public interests in water concession disputes requires concerted action in two different domains: changing the investment arbitration mechanism, by promoting the transparency of proceedings and the participation of non-parties; and changing the regulatory framework that underpins investments in water services. Combined, these improvements are likely to infuse public interests into water concession arbitrations.

Investigating the factors influencing the quality of adjudication of complex payment disputes in Australia

Statutory adjudication has been enacted throughout Australia on a state-by-state basis. The original enacting legislation may be broadly divided into two models which have become known as the East Coast and West Coast models. The East Coast model adjudication scheme – which is operational in NSW, Victoria, Queensland, Tasmania, ACT and South Australia – has in recent times come under much criticism for failing to facilitate determinations of sufficient quality with respect to large and/or complex payment claims. By carrying out a thorough desktop study approach whereby evidence is garnered from three primary sources – government commissioned consultation papers, academic publications and judicial decisions – this paper reviews this criticism and therefrom distils the key factors influencing the quality of adjudication of large and/or complex claims in Australia.

A proposed roadmap to optimise the adjudication of complex payment disputes in Australia

In Australia, statutory construction adjudication has recently received a lot of criticism due to the increasing amount of determinations that have been quashed upon judicial review, and anecdotal evidence from some quarters showing dissatisfaction with the quality of adjudication decisions. Such criticism is particularly aimed at adjudications of large and technically and legally complex payment disputes, where adjudicators are under pressure to consider substantial volumes of submissions in very tight timeframes. More specifically, criticisms have been directed at, inter alia, adjudicator’s regulations, procedural fairness, jurisdictional powers and finality of decisions. This paper reviews the measures to improve the quality of adjudications of complex payment disputes then proposes a roadmap by selecting the Qld model as a benchmark but suggesting further improvements identified and explained via specific steps or pit stops. The pit stops include criteria for timeframes of complex claims, appointment, regulation and powers of adjudicators and a review system on the merits to control the quality of adjudication decisions replicating the Singapore model. The findings remain as blunt instruments and deemed as hypotheses to inform subsequent empirical research which the authors are currently undertaking to further investigate, strengthen and validate the findings of this study in order to propose a reliable and useful guide to any parliament seeking to optimise its statutory adjudication to effectively deal with complex payment disputes.

Modeling relevant legal information for consumer disputes

Accessing relevant legal information found in text excerpts from heterogeneous sources is essential to the decision making process in consumer disputes. The Ontology of Relevant Legal Information in Consumer Disputes (ric) is the domain-independent ontology modeling this relevant legal information comprising rights, their requisites, exceptions, constraints, enforcement procedures, legal sources. Its use is exemplified with one extension thereof, the Air Transport Passenger Incidents Ontology (ric-atpi), representing both the possible incidents triggered by a complaint in the air transport passenger domain and the related legal information that might be applicable. The Ontology models the key provisions found in the hard law, and those in soft law, comprising heterogeneous sources in a structured manner. An ontology-based system provides the knowledge embedded in the legal sources and their relation to the specific scenario.

Contemporary issues in Australian family law: Do we need a more unified and interventionist judicial model

Recent decisions of the Family Court of Australian reflect concerns over the adversarial nature of the legal process. The processes and procedures of the judicial system militate against a detailed examination of the issues and rights of the parties in dispute. The limitations of the family law framework are particularly demonstrated in disputes over the custody of children where the Court has tended to neglect the rights and interests of the primary carer. An alternative "unified family court" framework will be examined in which the Court pursues a more active and interventionist approach in the determination of family law disputes.

Dismantling the public sector bastion : evaluation capital works

Purpose: The determination of the most appropriate procurement system for a capital works project is a challenging task for public sector clients considering the array of assessment criteria that are considered and the procurement methods that are available. This is particularly pertinent to the Western Australian public sector where they have had a propensity to use traditional lump sum as the default procurement solution despite knowing that the selection of an inappropriate procurement method may lead to cost and time overruns, claims, and disputes’ on projects. This paper presents a six step procurement method evaluation approach that requires public sector agencies to consider in detail an array of options so as to obtain value for money. Design/methodology/approach: A procurement evaluation approach is developed and is examined using a focus group of 12 participants comprising of a public sector client, project team and key stakeholders. The focus group was used to examine the developed approach in the context of a real-life capital works project. Findings: The procurement method evaluation approach was deemed to be pragmatic and enabled decision-makers to re-evaluate outcomes from previous steps in the process. All focus group participants stated the six step process enabled a recommendation that was grounded in reflection and detailed evaluation. Practical implications: The developed procurement approach has enabled the public sector client evaluate the way in which they view procurement method selection and examine how they obtain ‘value for money’. Originality/value: The six step procurement approach makes use of quantitative and qualitative techniques and is reliant on discourse and reflection in making a procurement method recommendation. Consequently, the approach enables public sector clients to account for the complexities often associated with procurement selection.